Select Committee on Religious Offences in England and Wales First Report

Appendix 3


(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.


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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