Blasphemy law in the United Kingdom

This article describes the blasphemy law in the United Kingdom.

England and Wales

The common law offences of blasphemy and blasphemous libel were abolished by the Criminal Justice and Immigration Act 2008. See the Racial and Religious Hatred Act 2006.

Ecclesiastical offences

The offence of blasphemy was originally part of canon law. In the 17th century, blasphemy was declared a common law offence by the Court of King's Bench, punishable by the common law courts.

In 1656, the Quaker James Naylor was sentenced to flogging, branding and the piercing of his tongue by a red-hot poker by the Second Protectorate Parliament.

Common law offences

From the 16th century to the mid-19th century, blasphemy against Christianity was held as an offence against common law. Blasphemy was also used as a legal instrument to persecute atheists, Unitarians, and others. The Methodist Church[1] and the BBC[2] said it appeared to apply only to beliefs of the Church of England.

All blasphemies against God, including denying his being or providence, all contumelious reproaches of Jesus Christ, all profane scoffing at the Holy Scriptures, and exposing any part thereof to contempt or ridicule, were punishable by the temporal courts with death, imprisonment, corporal punishment and fine.

Taylor's Case[3] was the first reported case of the common law offence of blasphemy.[4] It is unclear whether or not there were any unreported earlier cases.[5][6][7] Lord Sumner said "Taylor's case is the foundation stone of this part of the law".[8]

The report by Ventris contains the following passage:

And Hale said, that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in this Court. For 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.[9]

In Rex v. Woolston,[10] "the Court declared they would not suffer it to be debated, whether to write against Christianity in general was not an offence punishable in the Temporal Courts at common law: it having been settled so to be in Taylor's Case in 1 Vent. 293. 3 Keb 607, 621 and in the case of The King v. Hall, ante, 416. They desired it might be taken notice of, that they laid their stress upon the word general, and did not intend to include disputes between learned men on particular controverted points."[11]

In 1841 Edward Moxon was found guilty of the publication of a blasphemous libel (Percy Bysshe Shelley's Queen Mab), the prosecution having been instituted by Henry Hetherington, who had previously been condemned to four months imprisonment for a similar offence, and wished to test the law under which he was punished. In the case of Cowan v. Milbourn (1867) the defendant had broken his contract to let a lecture-room to the plaintiff, on discovering that the intended lectures were to maintain that the character of Christ is defective, and his teaching misleading, and that the Bible is no more inspired than any other book, and the court of exchequer held that the publication of such doctrine was blasphemy, and the contract therefore illegal. On that occasion the court reaffirmed the dictum of Lord Chief Justice Hale, that Christianity is part of the laws of England. The commissioners on criminal law (sixth report) remarked that although the law forbade all denial of the being and providence of God or the Christian religion, it is only when irreligion assumes the form of an insult to God and man that the interference of the criminal law took place.[12]

The dictum "if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy" was followed in R v Boulter (1908) 72 JP 188.

In the case of Bowman v Secular Society [1917] AC 406, Lord Sumner, echoing Hale's remarks in Taylor, summarized the position using the Latin phrase, deorum injuriae diis curae, "offences to the gods are dealt with by the gods": blasphemy is an offence against the (Christian) state, and is prohibited because it tends to subvert (Christian) society; offence to God as such is outside the reach of the law.

The last person in Britain to be sent to prison for blasphemy was John William Gott on 9 December 1921. He had three previous convictions for blasphemy when he was prosecuted for publishing two pamphlets entitled Rib Ticklers, or Questions for Parsons and God and Gott. In these pamphlets Gott satirised the biblical story of Jesus entering Jerusalem (Matthew 21:2-7) comparing Jesus to a circus clown. He was sentenced to nine months' hard labour despite suffering from an incurable illness, and died shortly after he was released. The case became the subject of public outrage.[13]

In a 1949 speech Lord Denning placed the blasphemy laws in the past, saying that "it was thought that a denial of Christianity was liable to shake the fabric of society, which was itself founded upon Christian religion. There is no such danger to society now and the offence of blasphemy is a dead letter".

In 1977, however, the case Whitehouse v. Lemon (involving the periodical Gay News publishing James Kirkup's poem The Love that Dares to Speak its Name) demonstrated that the offence of blasphemous libel, long thought to be dormant, was still in force.[14] During the House of Lords appeal Lord Scarman said that "I do not subscribe to the view that the common-law offence of blasphemous libel serves no useful purpose in modern law. (...) The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom."

The following cases, in particular, were approved by the House of Lords in Whitehouse v Gay News Ltd:

Lord Scarman said[15] that in his judgement the modern law of blasphemy was correctly formulated in article 214 of Stephen's Digest of the Criminal Law, Ninth Edition, 1950, which reads:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the (offence) of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the (offence) of blasphemy.

The Human Rights Act 1998 requires the courts to interpret the law in a way that is compatible with the Convention for the Protection of Human Rights and Fundamental Freedoms. The offence of blasphemous libel is believed by some to be contrary to the freedom of speech provisions in the Convention. However, just before the introduction of the Human Rights Act 1998, a claim that the blasphemy law is inconsistent with article 10 of the Convention (providing for freedom of expression) was rejected in the case of Wingrove v UK (1997);[16] a case brought by solicitor Mark Stephens. The Court decided that it was within the state's margin of appreciation for a restriction on free speech.

When the BBC decided to broadcast Jerry Springer: The Opera in January 2005, they received over 63,000 complaints by offended Christian viewers who objected to the show's portrayal of Christian icons (including one scene depicting Jesus professing to be "a bit gay"). The fundamentalist group Christian Voice sought a private blasphemy prosecution against the BBC, but the charges were rejected by City of Westminster magistrates' court. Christian Voice applied to have this ruling overturned by the High Court, but the application was rejected, the court finding that the common law blasphemy offences specifically did not apply to stage productions (s. 2(4) of the Theatres Act 1968) and broadcasts (s. 6 of the Broadcasting Act 1990)[17][18]

Religion to which the offences relate

In R v Gathercole (1838), the defendant was convicted of criminal libel for publishing an attack on a Roman Catholic nunnery. Alderson B., in his direction to the jury, said that "a person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country. In the like manner, and for the same reason, any general attack on Christianity is the subject of a criminal prosecution, because Christianity is the established religion of the country."[19]

In Bowman v Secular Society Ltd (1917), Lord Sumner said that this was a "strange dictum" because insulting a Jew's religion was no less likely to provoke a fight than insulting an episcopalian's religion.[20]

The Church in Wales was disestablished in 1920.[21] In 1985, the Law Commission said that the effect of this was that that Church was no longer "the form established by law" nor "part of the constitution" of the Principality of Wales, within the meaning of those expressions in the dictum from R v Gathercole set out above. They said that, at that date, there was no authority as to the effect of this, if any, on the law of blasphemy in Wales.[22]

In Whitehouse v Lemon (as "Whitehouse v Gay News Ltd" [1979] when it reached the Law Lords), Lord Scarman said that the offence did not protect the religious beliefs and feelings of non-Christians. He said it was "shackled by the chains of history" in this respect.[23]

In R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (1991),[24] the Divisional Court held that the offences prohibited attacks only on the Christian religion, and did not prohibit attacks on the Islamic religion.

It was also held that the failure of these offences to prohibit attacks on non-Christian religions did not violate article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which relates to freedom of religion).[25]

Mode of trial

At the time of their abolition, blasphemy and blasphemous libel were indictable-only offences.

Sentence and orders on conviction

The death penalty for blasphemy was abolished in 1676.[26]

In R v Woolston, the defendant was sentenced to a fine of £25 for each of his four discourses (i.e. £100 altogether) and to imprisonment for the term of one year. He was also required to enter into a recognizance for his good behaviour during his life, himself in the sum of £3000 and by others in the sum of £2000[27] (As to recognizances, see also binding over).

Number of prosecutions

Before 1883, prosecutions were "much more common".[28] In the years 1883 to 1922 there were five prosecutions.[29] There was an unsuccessful private prosecution in 1971.[30] The next successful prosecution was in 1977.[31]

Individual prosecutions, arrests and failures to prosecute

In England the last prominent 19th century prosecution for blasphemy was the case of R v Ramsey and Foote,[32] when the editor, publisher and printer of The Freethinker were sentenced to imprisonment.

Police court proceedings were taken in 1908 against Harry Boulter, a Hyde Park orator with links to the Rationalist movement. In June 1909 he was jailed for repeating the offence.

In February 1925, the Glasgow-based radical Guy Aldred was arrested in Hyde Park and charged with blasphemy and sedition.

In 1988, British author Salman Rushdie's novel The Satanic Verses was published. Many Muslims considered the book to blaspheme against Islam, and Iranian clerical leader Ayatollah Khomeini issued a fatwa in 1989 calling for Rushdie's death, "along with all the editors and publishers aware of its contents".[33] Consequently, the government was petitioned for Rushdie to be prosecuted for blasphemy. No charges were laid because, as a House of Lords select committee stated, the law only protects the Christian beliefs as held by the Church of England.[34] The Rushdie case stimulated debate on this topic, with some arguing the same protection should be extended to all religions, while others claimed the UK's ancient blasphemy laws were an anachronism and should be abolished. Despite much discussion surrounding the controversy, the law was not amended.

Michael Newman, a secondary school science teacher and an atheist, was arrested under England’s blasphemy law for selling Wingrove's blasphemous video, "Visions of Ecstasy" in February 1992 in Birmingham. He was forced to resign from his school position due to protests from Christian parents. As a result, he became a subject of discussion in the media, including an appearance on Channel Four’s Comment[35] programme in England.[36]

In 2002, a deliberate and well-publicised public repeat reading of The Love that Dares to Speak its Name took place on the steps of St Martin-in-the-Fields church in Trafalgar Square, but failed to lead to any prosecution.[37]

Proposals to amend the law and protests

The Law Commission published a 1985 report on Criminal Law: Offences against Religious and Public Worship. A minority report sought to create a replacement offence such that citizens should not purposely "insult or outrage the religious feelings of others".[38]

In 2002, a deliberate and well-publicised public repeat-reading of the poem The Love that Dares to Speak its Name by James Kirkup took place on the steps of St Martin-in-the-Fields church in Trafalgar Square and failed to lead to any prosecution by the Director of Public Prosecutions. It suggested Jesus was a homosexual. An earlier reading in 1977 had led to prosecution. Outraged Christians tried to drown out the 2002 reading. "We have won an important victory for free speech and the right to protest", declared human rights campaigner Peter Tatchell. "No one was arrested. The police didn’t even take our names and addresses. The blasphemy law is now a dead letter. If the authorities are not prepared to enforce the law, they should abolish it". A trial would have involved all those who read and published the poem, including several of Britain’s leading writers, academics and MPs. After the event, Tatchell said "The blasphemy law gives the Christian religion privileged protection against criticism and dissent. No other institution enjoys such sweeping powers to suppress the expression of opinions and ideas."[39]

On 15 May 2002 the House of Lords appointed a select committee “to consider and report on the law relating to religious offences”. The committee's first report was published in April 2003; it summarised the state of the law in this area, and found that the present law on blasphemy was unlikely to result in successful prosecution. The committee found no consensus on whether a new law against blasphemy was required, but concluded that any law should apply to all faiths.[40] Home Secretary David Blunkett responded with plans to criminalise incitement to religious hatred, which became the Racial and Religious Hatred Act 2006, and he suggested the blasphemy law might be repealed once the new law was in force.[41]

Abolition

In January 2008, a spokesman for prime minister Gordon Brown announced that the government would consider supporting the abolition of the blasphemy laws during the passage of the Criminal Justice and Immigration Bill. The government consulted with the Church of England and other churches before reaching a decision. The move followed a letter written to The Daily Telegraph at the instigation of MP Evan Harris and the National Secular Society and was signed by leading figures including Lord Carey, former Archbishop of Canterbury, who urged that the laws be abandoned.

In March 2008, peers voted for the laws to be abandoned.

On May 8, 2008, the Criminal Justice and Immigration Act 2008 abolished the common-law offences of blasphemy and blasphemous libel in England and Wales, with effect from 8 July 2008.[42][43]

Statutory offences

An Act of Edward VI (the Sacrament Act 1547) set a punishment of imprisonment for reviling the sacrament of the Last Supper. It was repealed by the First Statute of Repeal in 1553 and revived again in 1558.[44]

Profane cursing and swearing was made punishable by the Profane Oaths Act 1745, which directed that the offender be brought before a justice of the peace, and fined an amount that depended on his social rank.[44] It was repealed by section 13 of the Criminal Law Act 1967.

Those denying the Trinity were deprived of the benefit of the Act of Toleration, 1689. The Blasphemy Act 1697 enacted that if any person, educated in or having made profession of the Christian religion, should by writing, preaching, teaching or advised speaking, deny that the members of the Holy Trinity were God, or should assert that there is more than one god, or deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, he should, upon the first offence, be rendered incapable of holding any office or place of trust, and for the second incapable of bringing any action, of being guardian or executor, or of taking a legacy or deed of gift, and should suffer three years imprisonment without bail.[12]

An Act of 1812-1813 excepted from these enactments "persons denying as therein mentioned respecting the Holy Trinity."[12]

Relationship between the common law and statutory offences

A person offending under the Blasphemy Act 1697 was also indictable at common law. In Rex v. Carlile,[45] Mr Justice Best said:

So far as the Statute of William containing provisions so inconsistent with the common law as to operate as a repeal by implication, as far as it applies to the offence of libel, it seems intended to aid the common law. It is called "An Act for the More Effectual Suppression of Blasphemy and Prophaneness." It would ill deserve that name if it abrogated the common law, inasmuch as, for the first offence, it only operates against those who are in possession of offices, or in expectation of them. The rest of the world might with impunity blaspheme God, and prophane the ordinances and institutions of religion, if the common law punishment is put an end to. But the Legislature, in passing this Act, had not the punishment of blasphemy so much in view as the protecting the Government of the country, by preventing infidels from getting into places of trust. In the age of toleration in which that statute passed, neither churchmen or sectarians wished to protect in their infidelity those who disbelieved the Holy Scriptures. On the contrary, all agreed, that as the system of morals which regulated their conduct was built on these Scriptures, none were to be trusted with offices who shewed they were under no religious responsibility. This Act is not confined to those who libel religion, but extends to those who, in the most private intercourse by advised conversation, admit that they disbelieve the Scriptures. Both the common law and this statute are necessary; the first to guard the morals of the people; the second for the immediate protection of the Government.[46]

Scotland

By the law of Scotland, as it originally stood, the punishment of blasphemy was death,[12] a penalty last imposed on Thomas Aikenhead in Edinburgh in 1697. By an Act of 1825, amended in 1837, blasphemy was made punishable by fine or imprisonment or both.[12] The last prosecution for blasphemy in Scotland was in 1843 when bookseller Thomas Paterson was sentenced at Edinburgh High Court to fifteen months in prison for selling blasphemous books.

According to the 18th-19th century legal writer David Hume (nephew of the philosopher), Scots law distinguished between blasphemy, which was uttered in passion generally in the heat of the moment, and other offences which involved the propagation of ideas contrary to religion. It is blasphemy, Hume wrote

when it is done in a scoffing and railing manner; out of a reproachful disposition in the speaker, and, as it were, with passion against the Almighty, rather than with any purpose of propagating the irreverent opinion. The like sentiments uttered dispassionately or conveyed in any calm or advised form, are rather a heresy or an apostasy than a proper blasphemy. — Commonwealth v. Kneeland

The Human Rights Act 1998 applies in Scotland as well as England and Wales, and therefore poses similar challenges to the existing Scottish blasphemy laws as those described above. Additionally, some legal commentators believe that, owing to the long time since successful prosecution, blasphemy in Scotland is no longer a crime,[47] although blasphemous conduct might still be tried as a breach of the peace.[48]

The Crown Office and Procurator Fiscal Service considered a complaint under the blasphemy law regarding the BBC transmission of Jerry Springer: The Opera but did not proceed with charges.[49]

Northern Ireland

Blasphemy and blasphemous libel continue to be offences under the common law of Northern Ireland.

On 5 November 2009 in the House of Lords an amendment to the Coroners and Justice Bill was moved, which would have abolished these offences in Northern Ireland, but following a brief debate the amendment was withdrawn.[50]

Bibliography

See also

References

  1. ↑ Submission from the Methodist Church to the Select Committee on Religious Offences in England and Wales, paragraph 3
  2. ↑ BBC, Q & A: Blasphemy law
  3. ↑ Taylor's Case (1676) 1 Vent 293, (1676) 86 ER 189, (1676) 3 Keb 607
  4. ↑ The Law Commission. Offences against religion and public worship. Working paper no. 79. 1981. p. 5
  5. ↑ The Law Commission. Offences against religion and public worship. Working paper no. 79. 1981. p. 6. note 11.
  6. ↑ Nokes. A History of the Crime of Blasphemy. 1928. pp. 42 to 53.
  7. ↑ Leigh, Not to judge but to save (1978) Cambrian LR 56
  8. ↑ Bowman v Secular Society Ltd [1917] AC 406 at 457
  9. ↑ Taylor's Case (1676) 1 Vent 293, (1676) 86 ER 189
  10. ↑ R v Woolston (1729) Fitzg 64, (1729) 94 ER 655, (1729) 1 Barn KB 162, (1729) 94 ER 112, (1729) 2 Str 834, (1729) 93 ER 881
  11. ↑ R v Woolston (1729) 2 Str 834, (1729) 93 ER 881
  12. ↑ 12.0 12.1 12.2 12.3 12.4 Public Domain One or more of the preceding sentences incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Blasphemy". Encyclopædia Britannica 4 (11th ed.). Cambridge University Press. pp. 43–44.
  13. ↑ Travis, Alan (2001-10-04). "Blunkett isn't trying to play God". The Guardian. Retrieved 2007-12-05.
  14. ↑ "Gay paper guilty of blasphemy". On this day. London: BBC News. 1977-07-11. Retrieved 2007-12-05.
  15. ↑ Whitehouse v Gay News Ltd [1979] AC 617 at 665, HL
  16. ↑ "Judgment". Council of Europe. 1996-11-25. Retrieved 2011-01-30.
  17. ↑ "Springer opera court fight fails". BBC News (London). 2007-12-05. Retrieved 2007-12-05.
  18. ↑ Green, R (on the application of) v The City of Westminster Magistrates' Court [2007] EWHC 2785 (Admin) (5 December 2007)
  19. ↑ R v Gathercole (1838) 2 Lew CC 237 at 254, (1838) 168 ER 1140 at 1145
  20. ↑ Bowman v Secular Society Ltd [1917] AC 406 at 460
  21. ↑ The Welsh Church Act 1914, section 1; the Welsh Church (Temporalities) Act 1919, section 2
  22. ↑ The Law Commission, Offences against religion and public worship, Working paper no. 79, 1981, p.32, note 133
  23. ↑ Whitehouse v Gay News Ltd [1979] AC 617 at 658, HL
  24. ↑ R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, [1990] 3 WLR 986, [1991] 1 All ER 306, 91 Cr App R 393, [1990] Crim LR 711, DC
  25. ↑ Choudhury v United Kingdom (1991) 12 HRLJ 172; R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429, [1990] 3 WLR 986, [1991] 1 All ER 306, 91 Cr App R 393, [1990] Crim LR 711, DC
  26. ↑ The Ecclesiastical Jurisdiction Act 1677 (29 Car.2 c.9)
  27. ↑ R v Woolston (1729) 2 Str 834, (1729) 93 ER 881 at 882
  28. ↑ Archbold Criminal Pleading, Evidence and Practice, 1999, para 27-1 at p.2251
  29. ↑ Whitehouse v Gay News Ltd [1979] AC 617 at 635, HL, per Lord Diplock
  30. ↑ The Law Commission, Offences gainst religion and public worship, Working Paper No 79, page 18, note 67
  31. ↑ Whitehouse v Gay News Ltd [1979] AC 617 at 635, HL, per Lord Diplock
  32. ↑ R v Ramsey and Foote (1883) 48 LT 739
  33. ↑ "Ayatollah sentences author to death". BBC. 14 February 1989. Retrieved 22 January 2007.
  34. ↑ "First Report Blasphemy". Select Committee on Religious Offences in England and Wales. United Kingdom Parliament Publications and Records. 2003-06-10. Retrieved 2007-12-05.
  35. ↑ Channel 4, Comment, 7:50pm[18/08/1992]
  36. ↑ Warren Allen Smith. Who's Who in Hell, A Handbook and International Directory for Humanists, Freethinkers, Naturalists, Rationalists, and Non-Theists, New York: Barricade Books[2000]
  37. ↑ Erotic poem challenges blasphemy law
  38. ↑ The Law Commission No. 145 "Criminal Law: Offences against Religion and Public Worship". HC 442 1984-85.
  39. ↑ Farewell George Melly (1927-2007), the freethinker
  40. ↑ "Religious Offences Committee". Business. United Kingdom Parliament Publications and Records. 2002-05-15. Retrieved 2007-12-05.
  41. ↑ "Blasphemy laws set to be repealed". London: BBC News. 2004-10-18. Retrieved 2007-12-05.
  42. ↑ "Criminal Justice and Immigration Act 2008 implementation". Ministry of Justice. Retrieved 2008-05-23.
  43. ↑ Ruth Geller. "Goodbye to Blasphemy in Britain". Institute for Humanist Studies. Archived from the original on 2008-06-07. Retrieved 2008-06-06.
  44. ↑ 44.0 44.1 Chisholm 1911.
  45. ↑ R v Richard Carlile (1819) 1 St Tr NS 1387, (1819) 3 B & Ald 161, (1819) 106 ER 621
  46. ↑ R v Carlile (Richard) (1819) 3 B & Ald 161 at 165 to 167, (1819) 106 ER 621 at 623
  47. ↑ Gerald H. Gordon. The Criminal Law of Scotland.
  48. ↑ "Discussion Paper 24 (1992) - Blasphemy". Law Reform Commission New South Wales. 2001-06-04. Retrieved 2007-12-05.
  49. ↑ Foster, Kate (2005-01-16). "Springer TV opera faces blasphemy complaint". The Scotsman. Retrieved 2007-12-05.
  50. ↑ Hansard 5.11.2009

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