Seeing Green on Blaphemy

Jerry Springer - The Opera, with a red line through it; from BBC website.On the day when the teacher convicted of blasphemy in the Sudan for allowing a class of young children to name a teddy bear Mohammed is pardoned and allowed to return home (BBC | Irish Times (sub req’d)) comes news of another relevant case. It has one of those very-legal looking, but uninformative, English case-name titles: R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007), but for all that the title is uninformative, the judgment itself is significant. For the Green who made the application is Stephen Green, National Director of Christian Voice (their website sees A Nation in Pain and A Government in Rebellion, and therefore perceives A Need For Jesus, and A Need For Prayer); and the reason he was seeking judicial review of the City of Westminster Magistrates’ Court was that a judge in that court refused to allow Green to commence a private prosecution for blasphemy arising out of the BBC’s broadcast of Jerry Springer – The Opera. The Daily Telegraph said of it at the time:

It’s filthy, it’s funny, it’s brilliantly original and, taken all in all, about as much fun as you are likely to have with your clothes on. … It seems to me a stroke of genius by the composer Richard Thomas to turn this hideously addictive reflection of our age into an opera, and this is a real opera, full of beautifully sung arias and duets, and with a huge full-throated chorus who sing the word Jerry as if it were Kyrie. … The effect is genuinely funny, genuinely shocking, and if you are easily offended, this is not the show for you. Those with open minds and adventurous hearts will love it, however, and as the freaks’ parade rolls on, the production sometimes becomes unexpectedly moving.

Well, obviously, Green was easily offended, and he sought to commence a blasphemy prosecution against various people connected with the opera, including Mark Thompson, Director General of the BBC, for having broadcast it in 2005. (I saw it then; I wasn’t as impressed as the Daily Telegraph, though it passed the time of day entertainingly enough).

In Ireland, the starting point is the last line of Article 40.6.1(i) of the Constitution, which provides:

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

It is extraordinary that a Constitution for a democratic state should create a constitutional speech crime, but here it is, creating three of them. Historically, blasphemy, sedition and obscenity were species of the common law offence of criminal libel directed to the maintenance of public order. In Ireland, the Law Reform Commission‘s Report on the Crime of Libel (html) (LRC 41, 1991) and the Report of the Legal Advisory Group on Defamation (2003)) both recommended that the common law offences should be abolished as species of libel (even if they should be criminalised in their own terms in another statutory vehicle, unless and until the last line of Article 40.6.1(i) can be removed from the Constitution by referendum). As a consequence, section 34 of the pending Defamation Bill, 2006, if enacted, will abolish the crime of blasphemous libel (though section 35 replaces it with an offence of the publication of gravely harmful statements). Moreover, in rejecting an application pursuant to section 8 of the Defamation Act 1961 (also here) for leave to bring a private prosecution against the newspaper, the Supreme Court, in Corway v Independent Newspapers [1999] 4 IR 484 (SC), declined to give any effect to the constitutional provision in the absence of a statutory provision. After Corway, the common law offences would seem impossible to prosecute in the absence of statutory foundations; and since no legislation has since been forthcoming, the last line of Article 40.6.1(i) seems now to constitute a constitutional dead letter.

In Green, the magistrate declined to give him such leave last January, so Green sought judicial review of her decision. Today, a Division Court of the High Court (ie, the High Court sitting with two judges, rather than the usual one) upheld her decision. Hughes LJ and Collins J held that, although it is very rarely invoked, the existence of the offence of blasphemous libel is established in English law:

[16] … the gist of the crime of blasphemous libel is material relating to the Christian religion, or its figures or formularies, so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife. It was on this basis that the application was made to the Magistrate for the summonses in the present case. It should clearly be understood that this second element of the crime must not be watered down. What is necessary to make such material a crime is that the community (or society) generally should be threatened. This element will not be shown merely because some people of particular sensibility are, because deeply offended, moved to protest. It will be established if but only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent.

However, they went on to hold that prosecutions at common law “where it is of the essence of the offence that the performance … was obscene, indecent, offensive, disgusting or injurious to morality…” have been abolished by statute (see: section 2(4) of the Theatres Act 1968 (plays); Schedule 15 paragraph 6 of the Broadcasting Act 1990 (broadcasts)). It followed for them that the common law offence of blaspemous libel was abolished by these statutes at least for plays and broadcasts, and that the magistrate was right to refuse Green permission to commence his private prosecution.

They also held, however, that even if the offence had not been abolished, its terms had not been made out on the facts:

[32] … We are prepared to assume for the purposes of argument that the content of the present play was such that it might cause deep offence to some (though not most) practising Christians, and that it is couched in not merely tasteless but lurid and arguably contemptuous or reviling terms. But the evidence presented to the District Judge, confirmed by the recording shown to us, makes it clear that this play, whether tasteful or objectionable or otherwise, has as the object of its attack not religion but the exploitative television chat show [emphasis added] …

[33] In addition, and crucially, there was no evidence at all before the District Judge of any of the second element of the crime. The play had been performed regularly in major theatres in London for a period of nearly two years without any sign of it undermining society or occasioning civil strife or unrest; there had been no violence (or even demonstrations).

Hence, in their view, the magistrate was right that a prima facie case had not been made out. These two elements of the decision have been rightly hailed in the media as important (BBC | Guardian | Times Online). In particular, the stress on the need for imminent public disorder is a very welcome clarification of the offence (where it continues to survive). But there is a further comment which ought to be of interest, as the court held that this stress on the need for imminent public disorder probably ensured the compatibility of the offence with Article 10 of the European Convention of Human Rights:

[17] Given the way in which the application was put to the magistrate it is not strictly necessary for our decision to decide the point, but it seems to us that the necessity for this essential second element in the crime is also consistent with the requirement in modern times that any such crime be compatible with Article 10 of the European Convention on Human Rights. That article protects the right of freedom of expression and by Article 10(2) allows interference with it only according to law and (so far as relevant to this case) where it is necessary in a democratic society for the prevention of disorder or crime or for the protection of the rights of others. It is clear law that the protection of freedom of speech must be accorded to the unpopular, tasteless or offensive, as well as to the popular, moderate or reasoned, unless interference be justified under paragraph (2). Whilst the law of blasphemy may well be ‘consonant’ with the right to freedom of thought and to manifest one’s religion enshrined in Article 9 – see Wingrove v UK (1996) 24 EHRR 1 at para 48 – it does not seem to us that insulting a man’s religious beliefs, deeply held though they are likely to be, will normally amount to an infringement of his Article 9 rights since his right to hold to and to practise his religion is generally unaffected by such insults. The Article 10(2) basis for the crime of blasphemous libel is best found, as it seems to us, in the risk of disorder amongst, and damage to, the community generally.

Undaunted, Green has announced that he will appeal this decision. If the main elements of the High Court’s reasoning are upheld on appeal, then the law of blasphemy will have come a long way towards compatibility with freedom of expression norms.