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Where am I now? Lawlink > Law Reform Commission > Publications > 2. The Law of Blasphemy

Report 74 (1994) - Blasphemy

2. The Law of Blasphemy

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History of this Reference (Digest)


DISCUSSION PAPER 24 IN BRIEF

2.1 In Chapter 2 of DP 24, the Commission traced the development of the common law crime of blasphemy from its ecclesiastical origins to modern times, concluding with a detailed analysis of the elements of the offence. In Chapter 3, the position in other Australian jurisdictions as well as in a number of other English-speaking common law countries was examined. Chapter 4 considered the options and arguments for reform and offered some tentative proposals to focus the terms of the debate. The options put forward were:

Option One: Retention of the common law offence of blasphemy;

Option Two: Progressive codification of a new offence of blasphemy;

Option Three: Replacement of blasphemy with other public order offences;

Option Four: Abolition of the offence of blasphemy without specific replacement.

2.2 The provisional conclusion of the Commission in DP 24 was that the common law offence of blasphemy should be abolished expressly and without specific replacement. The Commission felt that this provisional recommendation was not a radical one, given that - apart from a successful private prosecution in England in 1979 - the offence had fallen into disuse in most of the common law world in the last half-century, and had not been used in New South Wales for over 120 years. The Commission also pointed out that every other law reform agency in Australia and in other common law countries which had considered the question had likewise recommended the abolition of the offence of blasphemy.

2.3 The Commission’s tentative support for the fourth option was subject to its consideration of the submissions, consultations and public debate resulting from DP 24. Nothing which was brought to the Commission’s attention has deflected it from its original intent.

THE EXISTING LAW OF BLASPHEMY

History

2.4 The origin of the offence of blasphemy lies in ecclesiastical law, and the offence was capable of being dealt with by the Ecclesiastical Courts, the Star Chamber and the Court of High Commission. With the dissolution of the latter courts and the abolition of the common law writ de Haeretico Comburendo in the seventeenth century, the Court of King’s Bench declared blasphemy a common law offence, punishable by the common law courts.1

2.5 In so doing, Christianity was held in Taylor’s Case (1676) to be “parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law”. The common law courts were thus able to punish any attack on the religion of the State (the Church of England) as a crime against the State itself.2 While the rationale for regarding Christianity as parcel of English law may be open to conjecture, the legitimation of the Court’s powers (exercised previously only in the ecclesiastical courts) and the contemporary theory that “true religion” was essential to social stability, appear to have been persuasive in Taylor’s Case.3

2.6 One consequence of this alliance of Church and State was the fact that attacks on religions other than the State religion were not subject to the criminal law of blasphemy.4 Another was a discernible “secularising” trend. One notable point in this trend was the grouping together of blasphemous libel and seditious libel in Fox’s Libel Act of 1792. More significant is the fact that initially any criticism of the central beliefs of Christianity - whether offensive or temperate - was sufficient to constitute the offence.5 The “matter and not the manner of publication” made the publication blasphemous.6

2.7 However, over time the nature of the attack became increasingly important.7 By 1917 the element of “vilification, ridicule or irreverence” was taken as part of the law of blasphemy,8 and this was entrenched in the modern law in 1922.9 The significance of this change is that the justification for punishment was coming more and more to rest on the prevention of social disorder rather than on offence to God. The offence of blasphemy is taken to prohibit only insult and ridicule; language which did not appeal to rational judgment, but to the “wild and improper feelings of the human mind”.10 Thus, the modern offence has been personalised - it no longer protects the institutions and theology of the established church, but rather the sensitivities of the believing Christian. Mortensen suggests that the evolution of the offence into one protecting individual (Christian) sensibilities displaces the law of blasphemy from its original rationale and undermines any claims as to its ability to secure legitimate social and political objectives.11

2.8 Between 1922 and 1979 there were no successful prosecutions for blasphemy in England and by 1949 the offence was confidently pronounced a “dead letter” by Lord Denning.12 In 1979, however, the continued existence of blasphemous libel was confirmed by the House of Lords in Whitehouse v Lemon.13 The limitation of the common law offence to scurrilous criticism of the Christian religion was confirmed by the Divisional Court in 1990 in R v Chief Stipendiary Magistrate; ex parte Choudhury.14 The Court dismissed an attempted private prosecution of Salman Rushdie for his book, The Satanic Verses.15

2.9 The conviction in Whitehouse v Lemon was followed by considerable public concern and a bill to abolish the offence of blasphemy was introduced in the House of Lords in 1978.16 The issue was referred to the Law Commission of England and Wales for review and public consultation. The Law Commission produced a detailed working paper in 1981 which provisionally recommended abolition and which was widely distributed for community comment.17 The final Report of the Commission recommended (by majority) that the common law offences of blasphemy and blasphemous libel should be abolished without replacement.18

Reception of the offence in New South Wales

The doctrine of reception

2.10 It is a well established doctrine of English law that so much of the English law as existed at the time of settlement of a new colony and was applicable and appropriate to its circumstances would form part of the received law of that colony. This meant that Imperial Acts passed after settlement did not come into force in New South Wales in the absence of express provision.19 It also meant that the courts were required to make a determination of what was “appropriate” to the circumstances of New South Wales. In carrying out this task, the courts examined the policy and method of the relevant law to determine whether it could reasonably have been applied to the conditions of New South Wales in 1828.20

Reception of the law of blasphemy

2.11 If blasphemy had remained only an ecclesiastical offence it would not have been received into New South Wales law, as ecclesiastical law is generally considered an exception to the doctrine of reception21 unless the colony could be said to have had its own established ecclesiastical jurisdiction.22 By 1828, however, the offence of blasphemy had passed into English common law and thus would have been received into New South Wales in so far as it was applicable to the circumstances of the new colony.

2.12 Several concerns about the nature and extent of the reception of blasphemy into New South Wales law were considered in DP 24. These include doubts about whether the Church of England was ever the established church of New South Wales (it clearly is not today). Dixon J (as he then was) wrote in Wylde v Attorney General for New South Wales that:

      notwithstanding judicial statements to the contrary tendency, the better opinion appears to be that the Church of England came to New South Wales as the established church and that it possessed that status in the colony for some decades. ... [A]lthough in the beginning and for a not inconsiderable period the position of the Church of England in New South Wales appears to have been that of the church established by law, time changed its relation to the law ... eventually it came to be considered as a body like other churches established upon a consensual basis.23

2.13 The Commission also canvassed issues about whether the offence could be said to have been applicable and appropriate to the circumstances of the new colony, and whether it might consequently have been received in some modified form.24 The Commission pointed out that there has been no definitive judicial resolution of these issues and that a number of possible conclusions concerning the early status of blasphemy in New South Wales could be drawn.

Current status in New South Wales

Legislation

2.14 Despite the theoretical uncertainties about the reception and status of the common law offence of blasphemy, several pieces of legislation in New South Wales have assumed the existence of the crime.25 In 1827, the Governor in Council passed an Act “restraining the Abuses arising from the publication of Blasphemous and Seditious Libels”,26 with banishment available as a punishment for a repeat offender. Section 574 of the Crimes Act 1900 (NSW)27 provides that:

      No person shall be liable to prosecution in respect of any publication by him orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace.

2.15 The Imperial Acts Application Act 1969 (NSW) s 8 repealed all Imperial enactments not expressly saved by other provisions of that Act. However, s 35, which relates to the orders for seizure of material which a court may make following a verdict or judgment for libel, expressly refers to “any verdict or judgment ... against any person for composing, printing, or publishing any blasphemous libel”.

2.16 Similarly, s 49 of the Defamation Act 1974 (NSW) abolished the common law misdemeanour of criminal libel, but expressly left in operation “the law relating to blasphemous, seditious or obscene libel”.28 Schedule 1 of that Act inserted s 574A into the Crimes Act, relating to the initiation of criminal proceedings for blasphemous libel. Under s 574A, it is not necessary in an information or indictment alleging an “obscene or blasphemous libel” to set out the obscene or blasphemous passages. Rather, it is sufficient to deposit the relevant publication with the information or indictment, specifying in the particulars which portion or passage is the subject of the allegation.

Common law

2.17 Notwithstanding these assumptions in the legislation, the Commission pointed out in DP 24 that the common law concept of “desuetude”, whereby an offence may lapse through prolonged disuse, requires an investigation of whether or not the crime of blasphemy is extant in New South Wales. There has only been one successful prosecution for blasphemy in this State and it occurred over 120 years ago. The case of William Lorando Jones (1871) was never formally reported, but a newspaper account of the matter located by the Commission is attached as Appendix A to this Report.29 While the Commission considered that there was some possibility that a desuetude argument might succeed in a court in New South Wales,30 we assumed the continued existence of the offence for the purposes of the Discussion Paper. The same approach is adopted in this Report.

The elements of the offence

2.18 In DP 24, the Commission set out (in the absence of any binding authority) what it believes to be the elements of the modern law of blasphemy in New South Wales, having regard to the English common law, local statutory references, and current Australian approaches to the construction of criminal liability (especially in relation to the mens rea element).31

Publication or disclosure

2.19 The material must be “published” or disclosed, either orally or in writing, in the same manner that the term is used in defamation law. While the essential elements of both offences are the same, at common law “blasphemy” referred to the spoken word and “blasphemous libel” to a written publication.

Limitation to Christianity

2.20 The scope of the offence of blasphemy is limited to attacks against the central tenets of the Church of England and probably other Christian denominations, at least to the extent that their tenets do not substantially depart from those of the Church of England. In Whitehouse v Lemon,32 the suggestion that the offence be broadened to include other religions was said to be a task for the legislature, and in R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury it was concluded that “as the law now stands it does not extend to religions other than Christianity”.33

Character of the words or material

2.21 Under the modern law, it is the character of the publication which will determine whether or not it is blasphemous. On the one hand, sober and temperate criticism of Christianity, made by way of argument or statement will not be penalised even where it challenges the central beliefs of Christians. But publications made in a manner which may be characterised as “scoffing or reviling, [or] violating public decency” may be blasphemous.34

Tendency to cause a breach of the peace

2.22 As noted above, blasphemy was perceived as a threat to social order and the “bonds of civil society”.35 Consequently, under both s 574 and the common law, the publication also must have the tendency to cause a breach of the peace. There is some debate as to the precise meaning of a “breach of the peace” in this context. One broad approach includes any public situation in which there is danger to person or property, without necessarily involving general disorder.36 There is also authority for a narrower concept of liability, however, which would limit blasphemy to publications which cause widespread social unrest.37 In DP 24, the Commission expressed a preference for the latter, narrower interpretation, on the basis of both historical accuracy and contemporary policy.38

The intention of the author

2.23 In DP 24, the Commission traced the history of the mens rea of the English common law offence of blasphemy from the early cases and texts to the modern position reflected in the 1979 House of Lords decision in Whitehouse. In that case, the House of Lords held (by a 3-2 majority)39 that the prosecution need only prove the basic intention to publish the material in question, and therefore need not prove any further or ulterior intention to shock or cause offence.40 This makes blasphemy a crime of strict liability under English law. As Lord Scarman wrote, in the majority, “The character of the words published matter; but not the motive of the author or publisher”.41

2.24 The Commission considered that, given the divergence between English and Australian approaches to the concept of mens rea over the last 30 years,42 it was unlikely that the Australian courts would follow the House of Lords in Whitehouse. The consistent trend of the High Court in recent decades has been to emphasise the need for the Crown to prove a subjective element of intention, knowledge or awareness as a condition of imposing liability for serious crimes. For instance, the majority of the High Court in Wilson v The Queen43 referred to the development of the law “towards a closer correlation between moral culpability and legal responsibility”,44 and essentially abolished the category of battery manslaughter because a conviction following a minor assault “does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility”.45 The Commission considered that the Australian “common law requirement of subjective fault is almost certain to be upheld in the context of the offence of blasphemy”, which is a traditional common law offence, carries a large maximum penalty, and could easily result in considerable stigma in the event of conviction.

2.25 In the Commission’s view, the proper construction of the offence would require the prosecution to prove, beyond reasonable doubt, that the accused not only intended to publish the material in question, but also that he or she intended to cause such grave offence that a breach of the peace was a real possibility.46


FOOTNOTES

1. Trial of Sir Charles Sedley (1663) 1 Sid 168, cited in WS Holdsworth, A History of English Law (7th edition, Methuen Sweet and Maxwell, London, 1972) vol 8 at 407. For approaches to the definition of blasphemy, see D Lawton Blasphemy (University of Pennsylvania Press, Philadelphia, 1993) at Chapter 1.

2. Taylor’s Case (1676) 1 Vent 293; 86 ER 189. See DP 24, at para 2.10.

3. R Mortensen, “Blasphemy in a Secular State: a Pardonable Sin?”(1994) 17 UNSWLJ 409 at 411.

4. See, for example, R v Gathercole (1838) 2 Lew 237 at 254; 168 ER 1140.

5. For example the Blasphemy Act 1698 (Eng) made it an offence for any person educated in or having professed Christianity to deny its truth.

6. J F Stephen A History of the Criminal Law of England (London, Macmillan, 1883) vol II at 471.

7. See R v Hetherington (1841) 4 St Tr (NS) 563 at 590; R v Ramsay and Foote (1883) 15 Cox CC 231 at 235, per Coleridge CJ.

8. Bowman v Secular Society [1917] AC 407 at 445, per Lord Parker.

9. R v Gott (1922) 16 Cr App R 87.

10. R v Hetherington (1840) 4 St Tr (NS) 563 at 591.

11. Mortensen at 413.

12. Lord Denning Freedom Under the Law (Hamlyn Lectures, 1st series Stevens, London, 1949) at 46.

13. [1979] AC 617.

14. [1990] 3 WLR 986.

15. R v Chief Metropolitan Stipendiary Magistrate; ex parte Choudhury [1990] 3 WLR 986. For a detailed background to the Rushdie affair, and the nature of his offence against Islamic law, see M M Slaughter, “The Salman Rushdie Affair: Apostasy, Honor and Freedom of Speech” (1993) 79 Virginia Law Review 153; R Webster, A Brief History of Blasphemy (The Orwell Press, Suffolk, 1990).

16. Blasphemy (Abolition of Offence) Bill 1978.

17. England and Wales. Law Commission Offences Against Religion and Public Worship (WP 79, 1981). For comment see J R Spencer, “Blasphemy: the Law Commission’s Working Paper” [1981] Criminal Law Review 810.

18. England and Wales. Law Commission Offences Against Religion and Public Worship (Report 145, 1985). The Report has not been implemented by the Government.

19. TP Webb A compendium of the imperial law and statutes in force in the colony of Victoria together with a table of the sections of imperial statutes transcribed into Victorian statutes (2nd ed, Charles F Maxwell, Melbourne 1892) at 14-20. The relevant date was settled as being 1828 by s 24 of the Australian Courts Act 1828 (Imp) which applied to both Imperial statutes and the common law.

20. See, for example, Whicker v Hume (1858) 7 HLC 124; Quan Yick v Hinds (1905) 2 CLR 345; M’Hugh v Robertson (1885) 11 VLR 410.

21. See Blackstone’s Commentaries on the Laws of England (4th ed, John Murray, London, 1876) vol 1 at 81; Ex parte King (1861) Legge 1307 at 1324; Ex parte Thackeray (1874) 13 SCR 1 at 65.

22. Wylde v Attorney General for New South Wales (1948) 78 CLR 225.

23. Wylde v Attorney General for New South Wales (1948) 78 CLR 225, at 284-286.

24. See DP 24, at paras 2.31-2.42, for a detailed discussion of these matters.

25. See DP 24, at paras 2.43-2.48.

26. 8 Geo IV No 2.

27. This provision originally appeared as s 463 of the Criminal Law Consolidation Act 1883 (NSW), but was subsequently repealed and re-enacted in the Crimes Act 1900, which is still the principal piece of criminal legislation in New South Wales. The 1883 Act, in Schedule 1, repealed (so far as it may have applied as an Imperial Act) the English Blasphemy Act 1698, 9 & 10 William III c 32.

28. Section 49(1)-(2).

29. The last use of blasphemy in Australia in 1919 (in Victoria) is described in P Coleman Obscenity, Blasphemy, Sedition: 100 years of Censorship in Australia (2nd edition, Angus & Robertson, Sydney, 1974) at 66 ff.

30. It was rejected by the trial judge in R v Lemon, R v Gay News Ltd, Central Criminal Court London, 11 July 1977 and the point was not argued on appeal.

31. DP 24, at paras 2.56-2.108. See also G F Orchard, “Blasphemy and mens rea” (1979) 16 New Zealand Law Journal 347.

32. [1979] AC 617 at 658, per Lord Scarman. A detailed background to the case is provided by L Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie (Alfred A Knopf, New York, 1993) at chapter 26; N Walter, Blasphemy in Britain: the practice and punishment of blasphemy, and the trial of Gay news (Rationalist Press Association, London, 1977).

33. [1990] 3 WLR 986 at 999. See also R Harrison, “Blasphmeny laws only protect Christianity” (1991) 55 Journal of Criminal Law 123; L Knapman and J C Smith, “Offence confined to Christianity” [1990] Criminal Law Review 711

34. Crimes Act 1900 (NSW) s 574. The case law also uses such terms as “scurrilous”, “ludicrous”, “wanton”, “offensive”, “obscene”, “outrageous” or “profane”.

35. Curl’s Case (1727) 2 Str 788.

36. Bowman v Secular Society [1917] AC 407 per Lord Parker.

37. Bowman v Secular Society [1917] AC 407, at 460, per Lord Sumner.

38. DP 24, at paras 2.59-2.73, esp para 2.70.

39. [1979] AC 617. Viscount Dilhorne, Lord Russell and Lord Scarman formed the majority, with Lord Diplock and Lord Edmund-Davies dissenting.

40. DP 24, at paras 2.77-2.88.

41. [1979] AC 617, at 665.

42. See, for example, Parker v R (1963) 111 CLR 610, refusing to follow DPP v Smith [1961] AC 290. And see DP 24 at 2.89-2.107 for a detailed discussion of the differences in various areas of the criminal law.

43. (1992) 174 CLR 313.

44. Wilson v The Queen at 327.

45. Wilson v The Queen at 334.

46. DP 24, at paras 2.105-2.107. In para 2.107, the Commission considered whether reckless indifference would satisfy the mental element for blasphemy. Although this would normally be the case, there is an argument that the vague and uncertain actus reus element in blasphemy should be offset by a restrictively defined mental element in order to limit the scope of criminal liability.



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