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.
NORTHERN IRELAND
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.
SCOTLAND
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"
THE LAW IN OTHER EUROPEAN JURISDICTIONS
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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