Select Committee on Religious Offences in England and Wales First Report

Appendix 5

Religious Offences in other Jurisdictions

35.  As part of its work the Committee looked at religious offences in a number of other jurisdictions. We treated this information with some caution. Whilst it is possible to describe offences that exist in different jurisdictions with some accuracy, assessing their efficacy is much more difficult. It is usually hard to gather material on how offences are implemented. Even where that material is available, opinions often vary on how effective that implementation is, depending in part on the commentator's view about the desirability of the offence. Thus it is one thing to say what an offence is; but to say whether it works, even within its own jurisdiction, is another. Finally, even if an offence has proved effective within one jurisdiction it does not follow that it will be equally effective elsewhere. Legal transplants are usually likely to be more effective if they focus upon matters within the commercial sphere. Successful transplant is more problematic where, as in the case of religiously related offences, they touch upon the mores and culture of a community. Even countries that appear to be superficially similar on closer examination prove to be different in ways that are relevant to the implementation of the law. Thus, the models that follow are offered not as examples of working laws that would prove to be effective within the British context but, rather, as ideas that the Committee was able to reflect on in considering the law in England and Wales.

36.  A number of attempts have been made to survey the law relating to religious offences in other jurisdictions. Article 19 and Interights submitted material about the law in jurisdictions outside the United Kingdom to the European Court of Human Rights in both the Otto-Preminger Institut v Austria and the Wingrove v United Kingdom cases. Article 19 supplied us with copies of this evidence. The Home Office also supplied evidence about the law in a range of other jurisdictions, as did Professor Feldman, Legal Adviser to the Joint Committee on Human Rights. In addition to this, the Committee carried out some research of its own. The information in this appendix is taken from these various sources.

37.  The two jurisdictions that are most similar to that in England and Wales are those in Northern Ireland and in Scotland. It is therefore to those two jurisdictions that we turned first.


38.  Blasphemy was part of the common law of Ireland. In an 1842 judgement Sir Edward Sugden[157] refers to the successful prosecution in 1703 of Thomas Emlyn, a Unitarian mister who had written a book arguing that Jesus Christ was not the equal of God the Father. This appears to have been the first reported blasphemy prosecution in Irish law. The law would seem to have protected the beliefs of the Church of Ireland[158]. It is therefore arguable that the crime did not survive the disestablishment of the Church of Ireland by the Irish Church Act 1869. There was no reported blasphemy prosecution in the period between 1855 and the creation of the independent state of Ireland. In Northern Ireland, which inherited Irish common law, there has, to date, been no prosecution for blasphemy. However, in Northern Ireland incitement to religious hatred is a criminal offence under the Public Order (NI) Order 1987, although it is rarely prosecuted. From enquiries we made, it would seem that this might be due to the fact that it was difficult to show the necessary intention to incite religious hatred, a disinclination to prosecute sectarian cases, or a feeling that the number of cases that could potentially be prosecuted was so large as to make individual prosecutions potentially invidious—or a combination of all three.


39.  The last reported prosecution for blasphemy in Scotland was in 1843[159]. Some writers have argued that blasphemy may no longer be a crime in Scotland (see, for example, G. Gordon, The Criminal Law of Scotland, W. Green (2nd ed., 1978) p. 998). In any event, since Scottish law, unlike English law, requires a personal interest in a matter before there can be any private prosecution, and since the state is unlikely to want to prosecute for blasphemy, a prosecution, even if technically possible, is unlikely to occur[160]@SCLINK@. @FCLINK@At present Scotland has no special provisions to deal with religious offences that are not found In English law. Indeed some extant English provisions, such as section 2 of the Ecclesiastical Courts Jurisdiction Act 1860, have no counterpart in Scotland. However, concern over sectarianism in Scotland has led to calls for new legislation. On 20 February 2003 the Scottish parliament passed a Criminal Justice (Scotland) Bill which included a section on religious prejudice, originally introduced by Donald Gorrie MSP. The section reads as follows:

"59A Offences aggravated by religious prejudice

(1) This section applies where it is -

  (a) libelled in an indictment; or

  (b) specified in a complaint,

·  and, in either case, proved that an offence has been aggravated by religious prejudice.

(2) For the purposes of this section, an offence is aggravated by religious prejudice if -

(a) at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice or ill-will based on the victim's membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation: or

(b) the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on membership of that group.

(3) Where this section applies, the court must take the aggravation into account in determining the appropriate sentence.

(4) Where the sentence or disposal in respect of the offence is different from that which the court would have imposed had the offence not been aggravated by religious prejudice, the court must state the extent of and the reasons for that difference.

(5) For the purposes of this section, evidence from a single source is sufficient to prove that an offence is aggravated by religious prejudice.

(6) In subsection (2)(a)-

"membership" in relation to a group includes association with members of that group: and

    "presumed" means presumed by the offender.

(7) In this section, "religious group" means a group of persons defined by reference to their-

    (a) religious belief or lack of religious belief;

    (b) membership of or adherence to a church or religious organisation;

    (c) support for the culture and traditions of a church or religious organisation; or

    (d) participation in activities associated with such a culture or such traditions"


40.  Austria: Under Section 188 of the Penal Code "disparaging religious doctrines" is a criminal offence.

41.  Belgium: There is no longer a law criminalising blasphemy in general. Article 4 of the Decree of 23 September 1814, which penalised writings and images offensive to religion, was abrogated by the Fundamental Law of 1815 (Constitution of the "Kingdom of the United Netherlands"). Incitement to discrimination, hatred or violence vis-à-vis a group or community is a criminal offence. Article 144 of the Penal Code makes it an offence to insult religions at either places of religious worship or during public religious celebrations. Other articles of the Penal Code may be applied to writings, images, paintings, or films defaming religion, in particular, Articles 443-452 which penalize defamation, and Articles 383-386(bis), which penalize public offence to morals and sexuality. These articles have been applied to religious offences. Courts in Belgium are less likely to prohibit the showing of pornographic or blasphemous materials where only consenting and well-informed adults are to be exposed to the material.

42.  Denmark: It is a criminal offence for local and satellite broadcasting to incite racial or religious hatred. While a law prohibiting blasphemy exists under Section 140 of the Danish Penal Code, it has not been used since 1938. The Danish Penal Code also contains a provision (Section 266b) against expressions that threaten, deride or degrade on the grounds of race, colour, national or ethnic origin, belief or sexual orientation. That provision, however, has never been used against statements offensive to religion. In 1984 a local art club asked an artist, Jens Jørgen Thorsen, to create a "happening" on the wall of the local railway station. The work displayed a naked Jesus with an erect penis. The work caused considerable controversy, and was eventually removed, but no legal charges were ever brought. In 1992, a film made by the same artist was shown in cinemas all over Denmark. The film portrayed Jesus as sexually active and the clergy as corrupt. Though the film caused debate, no legal measures were taken and no charges were laid.

43.  France: In France, while there is no law against blasphemy, Article 283 of the Penal Law proscribes the showing of a film contrary to good morals, ("contraires aux bonnes moeurs"). In a 1988 case, several groups asked the court to ban the showing of Martin Scorsese's "The Last Temptation of Christ". The court rejected this application, noting that the right to respect for beliefs should not interfere in an unjustified manner with artistic creativity. In upholding the lower court's decision, the Court of Appeal ordered that all advertisements for the film should include an announcement that the film was based on a novel and not upon the Gospel[161]. Incitement to racial discrimination, hatred or violence because of origin or membership of a race or religion is a criminal offence. In October 2002 the novelist Michel Houellebecq was found not guilty of inciting hatred by calling Islam "the stupidest religion".

44.  Germany: In Germany, Section 166 of the Criminal Code forbids insults to a religion or "Weltanschauung", publicly or by dissemination of publications. For an insult to be punishable under this law "the manner and content" of the insult must be such that an objective onlooker could reasonably apprehend that the insult would disturb the peace of those who share the insulted belief[162]. Moreover, to be convicted, an offender must intend or at least be aware that his or her action constituted an offence. In applying Section 166 to a work of art, the freedom of art as guaranteed by Article 5(3) of the Basic Law must be taken into account. Article 130(1) of the German Criminal Code makes it an offence, punishable with imprisonment for between three months and five years to incite hatred against segments of the population or to call for violent or arbitrary measures against them, or to attack the human dignity of others by insulting, maliciously maligning, or defaming segments of the population. Under Article 130(2), it is an offence, punishable with imprisonment for up to three years, for a person to disseminate, publicly display, post, present (including presentation by radio), produce, obtain, supply, stock, offer, announce, commend, or undertake to import or export, or otherwise make accessible, writings which incite hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs, if the writings call for violent or arbitrary measures against them, or assault the human dignity of others by insulting, maliciously maligning or defaming such a group or segments of the population.

45.  Greece: Any person who promotes acts liable to provoke discrimination or violence towards individuals or groups because of their racial, ethnic or religious origin is guilty of a criminal offence.

46.  Ireland: In Article 40.6.i of the Bunreacht na hÉireann (Constitution of Ireland), the State guarantees the liberty (subject to public order and morality) to express freely their convictions and opinions, but provides that "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." However, in 1999[163] the Irish Supreme Court held that it was impossible to say, from the previously decided case law, what the different elements of the crime of blasphemy were. It is thus now impossible to bring a blasphemy prosecution in Ireland.

47.  Italy: Articles 402-406 of the Penal code forbid offence to religion, including offence to religion during a performance, even where the offending performance is objectively aimed at arousing amusement. There is considerable debate in Italy about whether laws against causing offence to religion apply only to Catholicism. A lesser offence of "bestemmia" (words insulting to religion) is contained in Article 724. The use of these provisions has been declining in recent years.

48.  The Netherlands: Blasphemy is a criminal offence under the Penal Code Article 147 (introduction and sub 1 Wetboek van Strefrecht), but this provision only covers expressions concerning God, and not saints and other revered religious figures ("godalaatering"). Further, the criminal offence of blasphemy has been interpreted to require that the person who makes the expression must have had the intention to be "scornful" ("smalend"). This is a stricter test than normally is applied to the intent of the defendant. Thus, even if it was objectively foreseeable that people would be aggrieved, and those people actually were aggrieved, there is no offence if the speaker did not have the intent to be scornful. This intent requirement was confirmed in one of the very few blasphemy cases in the Netherlands. An established Dutch writer, Gerard Kornells van het Reve, represented God in a novel as a donkey. Moreover, the storyteller contemplated having sexual intercourse with the animal. In 1968, the Hoge Raad (the highest appellate court) acquitted the author because it was not proven that his aim was to be scornful[164].

49.  Spain: The crime of blasphemy was abolished in 1988. The Constitutional Court has ruled that the right to freedom of expression, broadly protected by Article 20 of the Constitution, can be subject to restrictions aimed both at the protection of the rights of others or at the protection of other constitutionally protected interests. The extent to which "rights of others" may justify a restriction is construed narrowly by the Court; generally speaking, the other must be an identified individual whose fundamental rights have been directly affected by the expression. Although there is no case-law from the Constitutional Court regarding the extent to which the right of freedom of religion could be posited as a ground for restricting freedom of speech, it can be assumed on the basis of prior case-law that another ground, such as the protection of morals, would have to be relied upon to justify a restriction of freedom of expression. The fact that only interested adults are likely to be the audience of a work of art is also a relevant consideration under Spanish law.

50.  Switzerland: Article 261 of the Penal Code makes it an offence publicly and maliciously to offend or ridicule another person's convictions in a matter of belief, or to profane a religion's objects of veneration, place of worship or religious article or act guaranteed by the Constitution. It is also an offence maliciously to interfere with the celebration of, or publicly ridicule, any religious act guaranteed by the Constitution. The penalty is imprisonment for up to six months and/or a fine. In addition, Article 261 bis of the Penal Code, inserted by the law of 18 June 1993 with effect from 1 January 1995, provides that it is an offence for anyone publicly to incite to hatred or discrimination against a person or group of persons on account of their racial, ethnic or religious characteristics; publicly to propagate an ideology which systematically degrades or denigrates the members of a race, ethnic group or religion, or to organize or to encourage such propaganda activities; or publicly to degrade or discriminate against a person or group by reason of their race, ethnic group or religion, by words, writing, image, gesture, action or otherwise, in a way which attacks their human dignity; or in the same way to deny, grossly minimize, or seek to justify a genocide or other crimes against humanity. The penalty is an unlimited period of imprisonment or a fine.

jurisdictions outside europe

51.  Australia: Australia is of some interest because it has a common law legal system and has experienced a relatively recent case involving an allegation of blasphemy. In 1998[165] the Roman Catholic Archbishop of Melbourne, the Most Reverend Dr. George Pell, sought an injunction to restrain the National Gallery of Victoria from showing a photograph by Andres Serrano entitled "Piss Christ". The photograph showed the crucified figure of Christ immersed in excrement. The state Supreme Court accepted that the photograph would be extremely offensive to many Christians. One of the grounds for seeking the injunction that underpinned the Archbishop's case was the argument that showing the photograph would constitute the crime of blasphemous libel. The defence argued that the crime of blasphemous libel did not exist in the state of Victoria and that, if it did exist, it did not justify the injunction sought. The Supreme Court rehearsed both the argument for saying that blasphemous libel was not an offence known to the law of the state of Victoria (the fact that it had not been used in the twentieth century) and also the argument that a multi-faith society might be better served by a law that protected differing faiths from scurrility, vilification, ridicule and contempt. The judgement of the court failed to clearly take one view or the other. However, the court held that if the crime of blasphemous libel did exist it was necessary to show that publication of the matter complained of would cause unrest of some sort. In the absence of such evidence the court declined to grant the injunction sought. This case is illustrative of many of the problems for a law of blasphemy in the modern world. However the court's judgement does not provide any clear answer to these problems or even to the question of whether or not the law of blasphemy has been received into Victorian state law from the common law of England.

52.  India: The law of India has often been used as a comparator when discussing the law relating to religious offences in England and Wales. A number of witnesses raised it in evidence that was submitted to the Committee, some seeing it as a successful model and others finding severe limitations and difficulties in the law. The Indian Penal Code of 1860, as it is presently constituted, now lays down a number of offences that relate to the areas of blasphemy and incitement to religious hatred[166]. Section 153-A reads:

"Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

  Whoever -

(a)  by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b)  commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or

(c)  organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

(d)  shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc. -

(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine".

53.  Nariman has commented that this "virtually extended by legislation the English Common Law of Blasphemy to all religions practiced in India"[167]. However, the character of this provision of the Penal Code seems rather different from the English law of blasphemy not least in its focus on public order. Section 295-A reads:

"Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or visible representations or otherwise, insults or attempts to insult the religion or religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with a fine, or with both."

54.  Ratanlal and Dhirajlal's "Law of Crimes", a commentary on the Indian Penal Code, notes that "[the] prosecution must establish that the intention of the accused to outrage was malicious as well as deliberate, and directed to a class of persons and not merely to an individual"[168]. They further note that the legislative intent in introducing the provision was that "the essence of the offence…[was] that the insult to religion or the outrage to religious feelings must be the sole, or primary, or at least the deliberate and conscious intention."[169] Moreover Kumar notes

"The Supreme Court in its judgement of 1952 stated that 'the general effect which the whole composition would have on the mind of the public [is relevant]'. The public cannot be the general mass who may not have the remotest connection with the book [in question]. The public in this context has to consist of the thinking public capable of reading, reviewing and criticizing the book…". Chief Justice Hidayatullah, speaking for the unanimous Court, observed '[our] standards must be so framed that we are not reduced to a land where the protection of the least capable and the most depraved amongst us must determine what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom.'"[170]. However, where such a charge is brought it is no defence simply to show that the words complained of are in fact true[171].

55.  Under s 298 of the Code

"Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description or a term which may extend to one year, or with fine, or with both."

The scope of this section is much wider than s 295-A. However Ratanlal and Dhirajlal note that "[a] mere likelihood that the religious feelings of other persons may be wounded would not suffice nor a mere intention to wound such feelings would suffice unless that intention was deliberate. Where the intention to wound was not conceived suddenly in the course of discussion, but premeditated, deliberate intention may be inferred"[172].

56.  Speculating on the ambit of these offences is clearly difficult and possibly contentious. Thus whilst Nariman has argued of "The Satanic Verses" that "had Rushdie been prosecuted in the country of his birth, his right to freedom of expression (though painful and hurtful to the religious feelings of others) would have been upheld in the absence of proof of his deliberate or malicious intent"[173], some State governments have taken a different view and have banned the book (see further below). The fact that both Amnesty International[174] and the Indian National Human Rights Commission have called for the laws to be more rigorously applied suggests that their application is at best spasmodic. Whether it would be politically possible to apply the laws on a regular basis is an open question.

57.  Coupled with these provisions for prosecuting offenders is a provision whereby a State Government may "notify" a newspaper, book, or any document (which includes any painting, drawing or photograph or other visible representation), under s.99A-D of the Criminal Procedure Code on the grounds that it contains matter punishable under s.153-A or s 295-A. Following such notification any book or other document that is the subject of the notification is forfeit to the government. Kumar observes of the application of this procedure

"[the] advantage of decentralized authority is that restrictive action by a local authority in one area may not make any impact on other parts of the country. A book whose sale has been banned in one state can continue to circulate freely in other parts of the country. Since there is considerable laxity in enforcing such bans, the censored material can travel back to the areas where censorship is in force through mail and from hand-to-hand circulation. The ban or censorship of a particular item can be nullified in actual practice…Another factor that helps in nullifying the restriction is the general inefficiency from which enforcing authorities suffer in this country…Several hundred copies of censored books like Lady Chatterley's Lover and The Satanic Verses may be accessed in public libraries, personal collections and bookshops."[175]

However, he also notes that a number of books have been banned because of their alleged impact on religious feelings, including Arthur Koestler's "The Lotus and the Robot" and Salman Rushdie's "The Satanic Verses".

157   A.G. v Drummond (1842) 1 Or. and War. 353 (at p. 384) Back

158   R v Petcherine (1855) 7 Cox CC 79 at p 84 Back

159   Henry v. Robinson 1843 1 Brown 643 Back

160   G. Maher 'Blasphemy in Scots Law' (1977) Scots Law Times 257 at p 260 Back

161   Cour d' appel de Paris, 28 September 1988 Back

162   Court of Appeal of Celle, Neue Juristische Wochenschrift, 1986, p. 1275 Back

163   Corway v Independent Newspapers (Ireland) Ltd [1999] 4 IR 484 Back

164   Hoge Raad 2 April 1968, NJ 1968 no 373 Back

165   Pell v The Council of Trustees of the National Gallery of Victoria [1998] 2 VR 391 Back

166   The offences should be read in the legal context of a Code that both makes reference to a range of other offences relating to religion and to other offences relating to communal violence. Back

167   F Nariman "Law in a Pluralist Society" (1990) p 6. Back

168   "Ratanlal and Dhirajlal's Law of Crimes: A Commentary on the Indian Penal Code, 1860" (1997) p 1151 Back

169   "Ratanlal and Dhirajlal" op cit p 1152. Back

170   G Kumar "Censorship in India" Hai-Anand Publications in association with Vikas Publishing House PVT Ltd (1990) p 33. Back

171   "Ratanlal and Dhirajlal" op cit p 1153. Back

172   "Ratanlal and Dhirajlal" op cit p 1166. Back

173   F Nariman "Freedom of Speech and Blasphemy: The laws in India and UK" (1989) 42 The Review 53 at p 53 Back

174   Amnesty International Press Release "Hate Speeches on the Violence in Gujarat Must be Stopped" 16th October 2002 Back

175   G Kumar "Censorship in India" (1990) p 168. Back

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