Blasphemy was once an indictable common law offence. Strict liability also=no need to prove intent to commit blasphemy.
Whitehouse v Lemon: Last successful prosecution using law of blasphemy; holds definition of blasphemy. Lord Scarman: ‘Blasphemous libel is committed if there is published any writing concerning God or Christ, the Christian Religion, the Bible, or some sacred subject, using words which are scurrilous, abusive or offensive and which tend to vilify the Christian Religion (and therefore have a tendency to lead to a breach of the peace)’.
No defences for blasphemy.
Blasphemy: gave strong protection for a person’s right to express Christian beliefs; no defences for blasphemy, no need to prove intent.
BUT: only protected Church of England Christianity; this is wrong in a pluralist society.
R v Chief Magistrate Court, ex parte Chaudhury: attempt to use blasphemy to protect Islam, convict Salman Rushdie for Satanic Verses. Failed. Lord Watkin ‘we have no doubt that as the law stands it does not extend to religions other than Christianity…were it open to us to extend the law to cover religions other than Christianity we should refrain from doing so.’
Blasphemy couldn’t be used to cover Islam; only Parliament should make such a fundamental change. Also would result in curtailing of freedom of expression. Makes sense; to extend law to cover all religions, which there are many of, would make a great number of issues blasphemous. Would lead to massive impractical restrictions on everyone. Also, strict liability; crime without intention. Accidents criminal.
Report on Obscenity and Film Censorship 1985: by Law Commission: blasphemy= ‘unsatisfactory and archaic’. Recommendation of abolition or replacement with new criminal offence.
Provision to repeal blasphemy inserted into Criminal Justice and Immigration Bill: Criminal Justice and Immigration Act repealed blasphemy.
SO: no more blasphemy= better freedom of expression BUT worse protection of freedom of religion.
Protecting Freedom of Religion in the Criminal Law
Ss. 28+29 of Crime and Disorder Act 1998: Religiously aggravated offences. These offences created following September 11th 2001, by amendments to Crime and Disorder Act 1998. Extended concept of racially aggravated crimes to allow for religiously aggravated crimes; crimes committed because of person’s religion. Such crimes lead to harsher sentencing.
The law penalises criminal activity against religion; provides protection for the right to express religion. Justifiably restricts freedom of Expression; restricts opinion where it becomes criminal.
Hostility must be directed at a religious group for offence to be committed. S.28(5) Crime and Disorder Act: ‘religious group’=’Groups defined by religious belief or lack of religious belief’.
So, there is wide protection; all religions (or groups defined by lack of religion) are protected; lots better than blasphemy. Protection still exists following Racial and Religious Hatred Act 2006
Part 3 Public Order Act 1986: Originally created offence of ‘incitement of racial hatred’; offence to create racial hatred amongst groups/ people.
Race Relations Act 1976: contains definition of race: some religious groups fall under definition e.g. Sikhs, Jews. Not all religions: not Christians, Muslims.
- Prosecutions under this section are rare; offence is difficult to prove.
- Incitement to racial hatred:brought about via ‘threatening/abusive/ insulting words or behaviour’
- Even though there’s no need for it to be intentional, there's need for defendant to know that their words were threatening/abusive/insulting.
- Successful prosecutions are rare; only 67 prosecutions and 44 convictions since Act came into force.
R v Abu Hamza: Famous successful prosecution; defendant used threatening words with intent to stir up racial hatred.
Problems with the law can be seen in the Nick Griffin case; Nick Griffin, head of BNP, and Mark Collet both charged with incitement to racial hatred concerning remarks made about asylum seekers and Muslims. Both acquitted; Muslims are a religion, not a race, and Collet claimed to not know that his words were threatening/abusive.
Justifiable Restriction of Freedom of Expression?
Outlaws hate speech, but difficult to prove case; to get conviction, need to prove that the defendant had awareness of the fact the words were threatening/abusive. Also doesn’t cover all religion, only those that can also be classed as race
Racial and Religious Hatred Act 2005: Amended Part 3 of Public Order Act to include the offence of incitement of religious hatred=now Part 3A of Public Order Act. Certain religions can use either (those classed as race).
Incitement of Religious Hatred
Originally, Racial and Religious Hatred Bill stated that incitement of religious hatred would be committed if a person:
- Uses threatening, abusive, insulting words or behaviour; AND
- They intend to stir up religious hatred, or it's LIKELY they'd stir up religious hatred.
This is the House of Commons approved version of bill.
House of Lords rejected this version;voted in favour of amending. Changes:
- The words ‘abusive’ and ‘insulting’ should be removed.
- The criminal offence should be limited to those with intent to stir up religious hatred
- There should be a freedom of expression defence.
In legal ping pong, bill was sent back to House of Commons; the amendments were accepted.
Incitement of Religious Hatred
The House of Common’s version would have offered greater protection for freedom of religion.
But the House of Lords’ version offers a lesser restriction on freedom of expression.
S.29 J of Act: Contains Freedom of Expression defence: No restriction on ‘discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse’ or religion or belief systems or lack of belief. No restriction of ‘proselytizing’ or trying to convince members of a religion to stop practising that religion.
Defence allows for a wide freedom of Expression. But; too wide?
Criticisms of Offence of Incitement of Religious H
aa) It can be hard to tell the difference between criticism or dislike of a religion and attempts to stir up hatred. Criticism of religion likely involves criticising followers, and if criticism is forceful and encourages other to dislike that religion, could it be counted as inciting religious hatred?
bb) Those listed as protected are those of ‘religious belief’ or ‘lack of religious belief’. But there is no definition of either phrase; religious belief or the lack of such is much wider and harder to prove than racial or ethnic origin. Is the law clear enough?
Justifiable restriction of freedom of expression? There’s very little restriction; only where freedom of expression may become threatening. It covers all religions. This law is weighted in favour of freedom of expression; there is a wide defence in the Act for freedom of expression. The balance is wrong, there should be more restriction; not just on threatening words/behaviour.
S.5 Public Order Act 1986
Makes it an offence to use ‘threatening, abusive or insulting words or behaviour, or disorderly behaviour’ or to display ‘any writing, sign or other visible representation which is threatening, abusive or insulting’ within the hearing or sight of a person ‘likely to be cause harassment, alarm or distress thereby’. There are a number of defences including reasonable conduct.
Been used to prosecute defendants in the poppy burning case. Also in Norwood v UK: defendant was convicted under S.5 Public Order Act, appealed case to Court of Human Rights on infringement of Article 10. Court decided Article 9 was more important in this case.
2012: A government consultation on whether to remove ‘insulting’ from S.5 of Public Order Act.
In Favour: it's a subjective word, anything can be found insulting.
Against: narrows the scope of protection.