Appendix 3
Blasphemy
(A) UNTIL 1998
1. Blasphemy (and blasphemous libel) is a common
law offence with an unlimited penalty. The content of the current
law is obscure and, from the evidence that the Committee has received,
is widely misunderstood. In 1981 the Law Commission observed that
it was "hardly an exaggeration to say that whether or not
a publication is a blasphemous libel can only be judged ex
post facto"[133].
It should be added that more recent academic opinion has shared
the view that the law of blasphemy is uncertain:
· "A
general criticism of the law of blasphemy is its uncertainty,
given the vagueness of deciding what does constitute the Christian
religion."[134]
· "To
say precisely what constitutes the law of blasphemy is difficult
if not impossible."[135]
· "In
fact, the actus reus of the crime of blasphemy has been
expressed in so many different ways that it is hard to know what
conduct is or is not caught by it."[136]
2. The legal notion of blasphemy dates back many
centuries. Faith was seen to be the root of society's political
and moral behaviour. Therefore, to challenge that faith or to
offend against it was to seriously threaten the very fabric of
political and moral society and had to be punished severely. Clearly,
that is no longer the case. Some might regret that, but it does
not alter the fact that the law is now concerned with the preservation
of the peace of the realm, and the concern is not so much with
views of the deity as with the satisfactory state of society.
3. The present state of the law of blasphemy
rests, in the main, on decisions made by courts in the nineteenth
century. In the twentieth century there were only four reported
judgements. One, Whitehouse v Lemon (the "Gay News"
case)[137],
has the authority of the House of Lords but concerns only the
question of the mens rea (the mental element or guilty
mind), necessary for the commission of the offence. Some remarks
about the actus reus (the criminal act or the substantive
content of the offence) were made in passing in the speeches in
this case, but the court did not hear full argument on these matters
and the remarks are thus merely of persuasive significance. Another
case[138],
reaffirming that the protection of the blasphemy law extended
only to the beliefs of the Church of England and that Salman Rushdie's
"Satanic Verses" book could not be prosecuted for blasphemy
against Islam, was decided by the Divisional Court and is thus
a comparatively low level authority. Bowman v. Secular Society
Ltd [1917] AC 406, a House of Lords case, affirms earlier
rulings that held that for there to be blasphemy there must be
intemperate or scurrilous language. R v Gott (1922) 16
Cr App R 87 is only two paragraphs long and merely rejects an
appeal against conviction and sentence. Many of the nineteenth
century decisions that are central to the law are, by modern standards,
badly reported. Many reports are very brief. This, amongst other
things, makes describing the law of blasphemy very difficult.
4. In the 1917 case mentioned above, Lord Sumner
observed that "the gist of the offence of blasphemy is a
supposed tendency…to shake the fabric of society generally"
(p. 459). Historically, English law took the view that "to
say, religion is a cheat, is to dissolve all those obligations
whereby the civil societies are preserved, and that Christianity
is parcel of the Laws of England; and therefore to reproach the
Christian religion is to speak in subversion of the law"[139].
Blasphemy and sedition were seen as interlinked crimes involving
the subversion of the state. By the nineteenth century, however,
the law became more specific. In Gathercole's Case ((1838)
2 Lewin 237) the court held that a
"person may, without being liable for prosecution
for it, attack Judaism, or Mahomedanism, or even any sect of the
Christian Religion (save the established religion of the country)".
The courts held, more generally, that it was "no
longer true that 'Christianity is part of the law of the land'"[140].
The law of blasphemy was thus restricted to protecting the tenets
and beliefs of the Church of England, other religions being protected
only to the extent that their beliefs overlapped with those of
the Church of England.
5. Some elements of the law are clear. First,
the House of Lords decided in Whitehouse v Lemon that the
offence is one of strict liability. That is to say, whether one
intended to commit an act of blasphemy is immaterial; all that
matters is whether or not one did in fact publish the material
that is the subject of prosecution. Secondly, as noted above,
the offence protects only the Church of England. This latter point
is a matter on which the Committee received much evidence, with
many seeking to argue that the law as it is currently stated extends
to protect the Christian faith in general. It is clear, however,
that this is not the case. In the "Satanic Verses" case,
the court held that "extending the law of blasphemy would
pose insuperable problems and would be likely to do more harm
than good" (p 452). Although some judgements have sometimes
suggested that it might be better if the law were more widely
stated (most notably Lord Scarman in Whitehouse v Lemon (at
p 308)), it is settled law that at present it extends only to
protect the Church of England.
6. As to what precisely constitutes a blasphemy,
the matter is obscure, and it is this that justifies the Law Commission's
view quoted in paragraph 1 above. Even among Christian communities
there is considerable disagreement about the extent of the offence.
The Select Committee asked Professor D J Feldman, Legal Adviser
to the Joint Committee on Human Rights, to construct as best he
could a modern definition of the elements of the common law offence
as it stands today. From the decided cases it would seem that
blasphemy is committed "by anyone who makes public words,
pictures or conduct whereby the doctrines, beliefs, institutions,
or sacred objects and rituals of the Church of England by law
established are denied or scurrilously vilified or there is objectively
contumelious, violent or ribald conduct or abuse directed towards
the sacred subject in question, likely to shock and outrage the
feelings of the general body of Church of England believers in
the community". As the Law Commission's view indicates, quite
what this means when it comes to applying the law to any given
set of facts is difficult to say.
7. It must be appreciated that the definition
has developed historically to meet various, primarily political
rather than religious, perceptions of a need for the law to protect
institutions, originally the State itself. This is acknowledged
by the Church of England, although not welcomed by them. But there
is a profound objection to it from the Evangelical witnesses and
organisations such as Christian Voice. Their position is that
the law prohibits "anything that contains contemptuous, reviling,
scurrilous or ludicrous matter relating to God, Jesus Christ or
the formularies of the Church of England as by law established".
The objectors place heavy reliance on Lord Scarman's opinion in
the "Gay News" case, and on the quotation by him and
other Law Lords of Stephens' Digest of the Criminal Law. However,
these passages do not form part of the ratio of the House of Lords
judgement and therefore carry limited weight. It should be added
that it is also the case that, on the authority of R v Hetherington,
material is not blasphemous if it is presented "in a sober
and temperate and decent style", even when it questions the
doctrines and beliefs of the Church of England. However, the line
between that which is sober etc. and that which is not has not
been subject to extensive examination by the courts. Equally,
it would be difficult to determine what constitutes scurrilous,
contumelious etc.
(B) SINCE THE HUMAN RIGHTS ACT 1998
8. The body of English law has moved on since
Whitehouse v. Lemon, not least through the passage of the
Human Rights Act 1998. This does not exactly incorporate the European
Convention on Human Rights (ECHR) as part of the domestic law
of the UK, but it does require courts and tribunals, as public
bodies (among many others) to interpret the law (henceforth "English"
law, which includes Wales; the same applies in Scotland and Northern
Ireland but this is not relevant to our deliberations) in such
a way as to be consistent with the Convention. When the courts
are considering statute law or subordinate legislation, there
is a system (s.10) which enables the higher courts to certify
that they cannot interpret the Act etc. in question so as to be
compatible with the ECHR. In such an event there is a streamlined
process whereby Parliament is able to make the requisite amendment.
Nothing, however, is said about amending the common law, so if
it is found to be inconsistent with the ECHR, however hard the
court may try to interpret it so as to be compatible, it remains
at present a matter for speculation how the problem might be resolved.
In the case of a criminal conviction under a common law offence
which contains elements incompatible with the ECHR, the appellate
courts may well be left with no option but to quash the conviction.
It would be possible for the court to invite Parliament to consider
the terms of the offence, but the fast-stream procedure is not
available and normal legislation would be required.
9. There are four Articles of the Convention
which have a bearing on the matters before the Committee: 7, 9,
10 and 14. One aspect of the jurisprudence which has developed
in the Strasbourg court is that the Convention has to be applied
as a whole. This means that it may not be sufficient to look at
one Article alone: it may interlock with another, with complex
results. This legal innovation formed no part of the Law Commission's
report but today it has overwhelming implications. The main problem
which is likely to arise in the context of blasphemy derives from
Articles 7 and 10. Article 7 appears to impose a prohibition on
the creation of a retrospective offence. That is to say, nobody
can be convicted or punished for acting in a manner which was
not a criminal offence at the time of the action. In Sunday
Times v. UK (1979) 2 EHRR 245 the Court said "...the
following are two of the requirements that flow from the expression
'prescribed by law'. First, the law must be adequately accessible:
the citizen must be able to have an indication that is adequate
in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a 'law' unless it
is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able to foresee...the consequences
which a given action may entail". The subsidiary meaning
of Article 7 may have a damaging effect on the common law of blasphemy
because a criminal offence will violate Article 7 (or valid 'prescription
by law' under other Articles) if its ingredients are unclear:
a person must be able to foresee whether or not his proposed action
is lawful.
10. Although no blasphemy case has been prosecuted
in England and Wales since the passage of the Human Rights Act,
and what follows is therefore necessarily speculative, it is our
view that any prosecution for blasphemy today—even one which
met all the criteria described in paragraphs 5-7 above—is
likely to fail on grounds either of discrimination or denial of
the right to freedom of expression. As long ago as 1980 Lord Diplock
noted in relation to the criminal offence of defamatory libel
that under Article 10.2 of the European Convention on Human Rights
"freedom of expression may be subject to restrictions or
penalties…only to the extent that those restrictions or penalties
are necessary in a democratic society for the protection of what
generically may be described as the public interest"[141].
His words apply with even more emphasis to the crimes of blasphemy
and blasphemous libel. European law also requires that restrictions
placed on Article 10.1 rights must be prescribed by law, and that
this means that the law must be certain, as to what is or is not
permitted. This is part of the interpretation of Article 10.2
read in conjunction with Article 7.
11. The 1998 Act gives effect to the rights and
freedoms guaranteed under the European Convention. Article 9 guarantees
the freedom of thought, conscience and religion. Article 10 confers
the right of freedom of expression. Article 14 prohibits discrimination
"on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association
with a national minority, property, birth or other status".
It is doubtful that an objective and rational justification could
be provided for the difference in treatment of different religions
and their beliefs, so there is a significant risk of the law of
blasphemy violating Article 14 taken together with Articles 9
and 10. It should be noted that Articles 9 and 10 of the European
Convention have equal status, in contrast to the United States
of America, where freedom of expression is paramount.
12. In 1997 the European Court of Human Rights
held that the English law of blasphemy was not in contravention
of Article 10 (freedom of expression) of the European Convention[142].
However the ruling was not unequivocal. The Court said the law
of blasphemy lay within the "margin of appreciation".
This gives individual countries a degree of discretion in deciding
what law is appropriate where there is insufficient common accord
amongst Member States for the European Court of Human Rights itself
to give a definitive ruling. The extent of the margin of appreciation
in any given case is not fixed, and is affected by the changing
social and legal climate within the Member States. For example,
in a succession of decisions over the past two decades the European
Court held that the United Kingdom's refusal to allow transsexuals
to change their declared sex on official forms, marry on the basis
of their changed sex and so forth was within the margin of appreciation.
But in 2002 the Court reversed its earlier stance and decided
that in the light of changes in social, legal and scientific circumstances
the United Kingdom's position now put it in breach of both Article
8 and Article 12 of the Convention[143].
Thus, the Court's decision in Wingrove that there was not
"as yet…sufficient common accord" to mean that
the English law of blasphemy was in breach of the European Convention
does not mean that it will not rule otherwise in the future.
13. The requirement to read the law of blasphemy
in the light of the Human Rights Act 1998 provides a particular
difficulty for the English courts. It is clear that the law discriminates
between religions and between denominations of the same religion.
It infringes notions of freedom of expression. Whilst the European
Convention provides for the restriction of freedom of expression
by State action in pursuit of legitimate aims such as the prevention
of disorder, the Court has held that any restriction of freedom
of speech must be proportionate to the legitimate aim that is
being pursued[144].
The courts by themselves would have difficulty in redrawing the
law, not least because the retrospective creation of criminal
offences is contrary to Article 7 of the European Convention.
Partially because of this, in the "Satanic Verses" case
the Divisional Court felt itself unable to extend the law to cover
non-Christian religions. This, however, was before the Human Rights
Act had given the courts new powers and duties, not least the
responsibility, under section 6(3)(a) of the Act, to ensure their
judgements were compatible with the Convention. They would face
formidable difficulties in either extending the law to other religions
or in clarifying what the exact ambit of the law might be. Equally,
however, they could not simply ignore the clear discrepancies
between the state of the current law and the requirements of the
Act.
14. In the Wingrove case, the British
Board of Film Classification adopted a definition of blasphemy
along the same lines as Whitehouse v. Lemon, but omitting
any reference to the Church of England. When this case came before
the European Court of Human Rights the Court held (at para. 43)
that "There appears to be no general uncertainty or disagreement
between those appearing before the Court as to the definition
in English law of the offence of blasphemy, as formulated by the
House of Lords in the case of Whitehouse v. Gay News and Lemon…The
Court is satisfied that the applicant could reasonably have foreseen
that the film could fall within the scope of the offence of blasphemy".
It is clear that both before the Commission and the Court, counsel
for both sides presented a united front that Lord Scarman's speech
in the Gay News case had defined the actus reus of
blasphemy in common law (see para 47 of the Commission's opinion
and para 43 of the Court's judgement). There must however be considerable
doubt whether that view would have prevailed if the extent of
the law of blasphemy had been fully argued and if it had not been
wrongly assumed that the House of Lords had formulated it clearly
in the "Gay News" case.
15. There are in prospect other problems about
the common law offences: the disproportionality of an unlimited
penalty; discrimination in favour of Christianity alone; and no
mechanism to take account of the proper balance to be struck under
Article 10 of the Convention. What may be even more difficult
for an English court, performing its duty under s.6(3)(a) of the
Human Rights Act, is that a domestic court is not allowed the
comfort of the "margin of appreciation" on which the
Strasbourg Court can rely, so as to reach decisions which take
account of the very diverse backgrounds from which domestic law
originated, and thereby produce decisions which will not prove
unacceptable to the State from which the appeal came. The State
itself possesses a margin of appreciation in legislating for its
own problems and the European Court will take cognisance of this;
but the extent to which a parallel jurisdiction is available to
the domestic courts in the UK is at an early stage of development.
133 "Offences Against Religion and Public Worship"
(Law Commission Working Paper No. 79, 1981) para. 6.1. Back
134
St. John Robbilliard, "Religion and the Law" Manchester
University Press (1984) p.37 Back
135
A Bradney "Religions, Rights and the Law" Leicester
University Press 1993 p.82 Back
136
D. Feldman "Civil Liberties and Human Rights in England and
Wales" OUP (2002) p.913 Back
137
Whitehouse v Lemon [1979] 2 WLR 281 Back
138
R v Chief Metropolitan Magistrate, ex parte Choudhury [1991]
1 QB 429: the "Satanic Verses" case Back
139
Taylor's Case (1676) 1 Vent. 293 Back
140
R v Ramsay and Foote (1883) 15 Cox CC 231 at p 235 Back
141
R v. Wells St Magistrate [1980] AC 477, p483 Back
142
Wingrove v the United Kingdom (1997) 24 EHRR 1. This case
resulted from a refusal in 1989 by the British Board of Film Classification
to issue a video classification certificate to a short film, "Visions
of Ecstasy", on the grounds that it infringed the law of
blasphemy. On appeal, the filmmaker claimed this violated his
rights to freedom of expression (Volume III, pages 4 & 5). Back
143
Goodwin v United Kingdom (2002) 35 EHRR 447 Back
144
Handyside v. United Kingdom (1979) 1 EHRR 737, p 754 Back
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