Criminal law—Blasphemy— Blasphemous libel

Queen’s Bench Division, Administrative Court
Hughes LJ and Collins J
5 December 2007

A prosecution for the offence of blasphemous libel is a prosecution for an offence at common law, and is thereby excluded by s 2(4)(a) of the Theatres Act 1968 (ThA 1968) in respect of theatre productions. It is similarly excluded in respect of television broadcasts by para 6 of Sch 15 to the Broadcasting Act 1990 (BA 1990).

Michael Gledhill QC and Mark Mullins (instructed by the Criminal Law Advocates) for the claimant.
The defendant did not appear and was not represented.
Naina Patel (instructed by Olswang) for the first interested party.
David Pannick QC and Javan Herberg (instructed by the British Broadcasting Corporation Litigation Department) for the second interested party.

The proceedings concerned a play performed in various parts of the UK, as well as being broadcast on the BBC, called Jerry Springer: the Opera. It was a parody of Mr Springer’s television chat show. The claimant was a member of a group called Christian Voice. He accepted that the primary target of the play was Springer. Nevertheless, he sought to bring a private prosecution for blasphemous libel in respect of the play. He contended that no matter what the merits or demerits of the artistic qualities of the work, it contained material amounting to the offence of criminal blasphemous libel, whether or not its principal target was Springer.

The district judge refused to issue the summonses. She held that the prosecution was precluded by TA 1968 and that there was no prima facie case of blasphemous libel. The claimant applied for judicial review of that decision. It was accepted that the elements of the offence were twofold:
(i) there had to be contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the Bible or the formularies of the Church of England; and
(ii) the publication had to be such as tended to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife. The interested parties relied on both TA 1968 and BA 1990.

LORD JUSTICE HUGHES (giving the judgment of the court):

Section 2(4)(a) of ThA 1968 provided:

“(4) No person shall be proceeded against in respect of a performance of a play or anything said or done in the course of a performance—(a) for an offence at common law where it is of the essence of the offence that the performance or, as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality.”

Paragraph 6 of Sch 15 to BA 1990 provided similar terms regarding television programmes. 
The district judge held that ThA 1968s 2(4)(a) prevented her from issuing the summonses sought in the instant case.
A prosecution for the ancient offence of blasphemous libel was a prosecution for an offence at common law. The essence of the offence was offensiveness; indeed such offensiveness as to engender a threat to society generally. In that it was to be distinguished from criminal defamatory libel, which was clearly preserved by the Act (see ss 4 and 8).

The gist of defamatory libel was the publication of material which exposed the victim to hatred ridicule or contempt among other people (or damaged him in his trade); its essence was not any offence which it might cause the victim (although of course it might) but rather the effect upon other people.
For the purposes of ThA 1968, a “play” was defined by s 18 in terms which meant, in effect, a live performance. Section 7 removed from the other provisions of the Act a performance which was given “solely or primarily” for the purpose, among others, of enabling the performance to be broadcast.

But the broadcast in this case was agreed to have been of one (or possibly more than one) ordinary live performance; there was no special performance “solely or primarily” for recording for the purposes of broadcasting. It followed that the exemption from the Act provided for by s 7 did not apply in this case. And it followed also that the district judge was correct to hold that s 2(4) prevented the proposed prosecution, at least so far as the live performances were concerned.

The district judge was not referred to BA 1990, but her reasoning as to ThA 1968 applied equally to it.
The district judge was accordingly right to refuse to issue the summonses.
That was enough to dispose of the application, but his lordship also went on to consider the district judge’s finding that there was no prima facie case that the essential ingredients of the offence charged were present.

The aim of the content

His lordship was 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 was 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 his lordship, made it clear that the play, whether tasteful or objectionable or otherwise, had as the object of its attack not religion but the exploitative television chat show. The play was not and could not reasonably be regarded as aimed at, or an attack on Christianity or what Christians held sacred.

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 was some disorder relating to the television broadcast. But even that evidence would not have justified a finding of a prima facie case of damage to society or of risk of civil strife. It had to be set against the complete absence of public reaction to the stage play over many months. 
The application would be dismissed.