Beware, unintended consequences

Durer Blasphemy woodcut, via wikipediaDaithí has just published a wonderful post on the The strange death of criminal libel?. On the issue of criminal libel, he concludes that the Defamation Bill, 2006, currently receiving its Report and Final Stages in the Seanad even as I write this post,

will without further amendment provide for

* the repeal of the [Defamation Act], 1961 [blogged here] including Part 2 dealing with various criminal offences
* the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel�
* no provisions on a new offence of the publication of gravely harmful statements
* no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel – or blasphemy, indeed – would continue to exist – but see note below on the definition of criminal libel)

And that, I believe, is good news.

I agree; it is thoroughly good news. I agree that the repeal of the 1961 Act and of various of the common law libel offences is a good thing. Moreover, the removal of the proposed replacement offence of publication of gravely harmful statements is an even better thing. But, less than a week after the vote of the House of Lords on 5 March 2008 to include a new clause 129 in the Criminal Justice and Immigration Bill abolishing the common law offences of blasphemy and blasphemous libel at English law, I’m not convinced by both Ministers’ reasoning on excluding blasphemy from this development. Take the last line of Article 40.6.1(i):

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

Now, compare the common law offences of criminal libel: they comprise blasphemous, seditious, obscene and defamatory libel. If blasphemy is to be excluded from section 34, then by parity of reasoning so also must sedition and obscenity as well. On the other hand, if the Ministers see no problem with proceeding with the abolition of hte common law crimes of seditious and obscene libel, notwithstanding the last line of Article 40.6.1(i), then there should be no problem with similarly abolishing the common law crime of blasphemy / blasphemous libel. Of course, there are statutes filling in for sedition (Offences Against the State Acts) and obscenity (Censorship Acts) so there is no need for the common law crimes, and that may be part of the Ministers’ thinking. And the current Minister seems to wish to wait for the report of the Joint Committee on the Constitution on the issue of blasphemy before legislating on this issue. Parity of reasoning would suggest that the common law offence should be abolished and replaced by something statutory.

But consider the position in the meantime. A common law offence of blasphemy will continue to exist, though its scope is entirely unclear (the historical evolution of modern blasphemy law as described by the Law Reform Commission’s 1991 Consultation Paper and Report on the Crime of Libel and by my colleague Dr Neville Cox in his magisterial Blasphemy and the Law (Edwin Mellen Press, NY, 2000)). Moreover, its compatibility with Article 10 the European Convention on Human Rights is in the balance. In R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007) (blogged here), a Divisional Court of the English High Court held that only a very narrow version of the common law crime of blasphemy is compatible with Article 10, and found that Jerry Springer – The Opera was not blasphemous. Moreover, leave to appeal to the House of Lords was refused last week. Nevertheless, some at least of the common law offence will survive, and if the Bill becomes law in its present form, then the procedural limitations in the 1961 Act will have been removed. In particular, the section 8 requirement of the consent of the High Court to a prosecution will disappear, so the procedural context of Corway v Independent Newspapers [1999] IESC 5; [1999] 4 IR 485; [2000] 1 ILRM 426 (30th July, 1999) will have disappeared. Of course, that case rendered the constitutional crime of blasphemy a dead letter in the absence of specific legislation, but as I read it, it left the common law unaffected. And if the 1961 Act also leaves the common law unaffected, then the effect of the amendment will be to strengthen the position of the common law crime, at least in the short term. And this must surely be an unintended consequence!