Supreme Court of Ireland Decisions

1. This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish Law.

2. The appeal is against the Judgment and Order of Geoghegan J., delivered and made herein on the 23rd day of October, 1996, whereby he refused the Applicant leave to institute a criminal prosecution for blasphemy against the Respondents pursuant to the provisions of Section 8 of the Defamation Act, 1961.

3. The Applicant is a carpenter and resides at Harolds Cross, Dublin.

4. The first and second Respondents are the proprietors, and the third Respondent the Editor, of the “Sunday Independent” which is a weekly newspaper with a large circulation in Ireland.

5. On the 26th November, 1995 the Sunday Independent, in the wake of the divorce referendum, carried an article, by Dr. Conor Cruise-O’Brien, on the implications of that referendum. Associated with the article was a cartoon which depicted on the right a plump and comic caricature of a Priest. The Priest was holding a host in his right hand and a chalice in his left hand. He appears to be offering the host to three figures on the left hand side of the cartoon. The three figures are the prominent politicians Mr. Prionsias de Rossa, Mr. Ruari Quinn and Mr. John Bruton. But they are turning away and appear to be waving goodbye. At the top of the cartoon are printed the words “Hello progress - bye bye Father” followed by a question mark.

6. The words at the top of the cartoon are clearly meant to be a play upon a phrase used, during the referendum campaign, by some of the campaigners against divorce. That is to say “Hello divorce - bye bye daddy”.

7. The applicant maintains that the cartoon picture and caption appear calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the Eucharist and its administration as objects of scorn and derision.

8. The Applicant says that he has been advised by Counsel and Solicitor and believes that the composition, printing and publication of the matter complained of could be held to constitute offences to which the provisions of Section 13.1 of the Defamation Act, 1961, will apply and that he has also been advised and believes that the subject matter of the application herein is such that there is a clear prima facie case for the Respondents and each of them to answer in the event of the matter coming before the Criminal Court.

9. The basic reason for Mr. Justice Geoghegan’s decision was that he did not believe that the facts complained of amounted to blasphemy. In other words he did not believe that there was any actus reus . But he said that had he believed that there was sufficient evidence of an actus reus he would have regarded the act of publishing as being evidence for the purpose of establishing mens rea and would not have required evidence of a specific intention to blaspheme.

10. The reference to blasphemy in the Constitution occurs in Article 40.6 paragraph 1 sub-paragraph (i). Significantly it appears as a reservation on the

11. There is no definition of blasphemy in the Constitution nor is there any Act of the Oireachtas defining blasphemy. Mr. Murdoch in his dictionary of Irish Law (Topaz Publications Dublin 1988) defines blasphemy as follows:-

12. There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commissions Consultation Paper on “The crime of libel”.

13. The Court would like to acknowledge its indebtedness to the researches of Counsel and of the Law Reform Commission on the history of the crime of blasphemy. We propose to consider first the evolution of the crime of blasphemy in England and then its evolution in Ireland. When the Common Law Courts took over jurisdiction in blasphemy from the Courts of Star Chamber and the Ecclesiastical Courts they seem to have started from the proposition that “Christianity is parcel of the laws of England”. Whether this was because they believed that the common law was founded on Christianity or whether it was that Christianity, in its Protestant form, was the established religion in England, is not clear. If they made the distinction they probably took the latter view. Sir Matthew Hale is reported as having said in Taylor’s Case (1 Ventris 293, 3 Keble 607) that

14. Originally any challenge to the fundamentals of Christianity was regarded as blasphemous but, from an early stage the law sought to make room for controversies between learned men on the finer points of religion. Towards the end of the 19th century in Ramsay and Foote , Lord Coleridge held that even the fundamentals of religion could be attacked “if the decencies of controversy are observed”. [1883] 15 Cox C.C. 231. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd. in the year 1917 [1917] AC 406.

15. As long as the mere publication of an attack on Christianity amounted to blasphemy there was no necessity to consider the intentions of the author or the publisher because the mere words were regarded as revealing his intentions. This matter came to a head in Whitehouse v. Lemon [1979] 1 All ER 898 where the majority in the House of Lords held that an intention to publish blasphemous matter was sufficient mens rea to constitute the offence of blasphemy and that it was not necessary to prove a specific intention to blaspheme. Geoghegan, J. appears to have accepted this line of reasoning in his Judgment in the present case.

16. The speech of Lord Scarman contains the following remarkable rationale for the existence of an offence of blasphemy, at pp. 921-922:-

17. It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian Minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.

18. Speaking of this case, over a century later, Sir. Edward Sugden said:-

19. However, Baron Lefroy, in charging the jury, seems to suggest that any burning of any version of the bible would be blasphemous although he does stress that the bible actually burned was the authorised version. He states as follows:-

20. Another case involving bible burning occurred later in 1855. The accused was a Redemptorist Father who had delivered a series of sermons in Kingstown (as it then was) aimed at discouraging people from reading “evil” literature. He invited his listeners to collect together any such literature they might find in their homes and to bring them to him for burning on a bonfire in the Chapel yard. Mr. Thomas O’Hagan Q.C., defending the Priest said:-

21. Unfortunately among the pile of books, unknown to the Rev. Father, was a copy of the bible.

22. On a prosecution of the Priest for blasphemy Baron Green told the jury that it did not matter which particular version of the bible had been burned. What was material was whether the Defendant intended to burn it. The Defendant was acquitted. [See Paul O’Higgins, Blasphemy in Irish Law,

23. In 1869 the Church of Ireland was disestablished.

24. There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. (The Law Reform Commission’s Report put the last mentioned case in 1885 (See p17), but this appears to be a misprint for 1855.)

25. It is worth noting that all three prosecutions for blasphemy of which we have record in Ireland involved the prosecution of clergymen - one Unitarian Minister and two Roman Catholic Priests.

26. The 1922 Constitution was a totally secular Constitution. Article 8 of the Constitution provided (in part) as follows:-

27. Article 9 provided (in part) as follows:-

28. The right of freedom of conscience, freedom of religion and freedom of expression as set out in the 1922 Constitution are wide enough to cover the views of citizens of all religions and of none. The tenets of any one religion do not enjoy greater protection in law than those of any other. There can be no question therefore of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality.

29. Article 73 carried forward the laws of the previous regime:

30. It is debatable to what extent, if at all, it carried forward the common law

31. If the Church of England had been disestablished and if England had introduced a secular Constitution it is highly probable that the debate in the House of Lords in Whitehouse v. Lemon would have taken a very different course. That case would not, therefore, appear to be a safe guide for this Court to follow in the present case.

32. The Constitution of Ireland re-enacted the provisions of the Constitution of the Irish Free State guaranteeing freedom of conscience and the free profession and practice of religion. It also re-enacted the provision prohibiting the State from imposing any disability or making any discrimination on the ground of religious profession, belief or status. It did however add a new Section in the following terms:-

33. In 1972 the fifth amendment to the Constitution removed the second two sub-sections quoted above leaving the religious guarantee in effect, as it had been under the Constitution of the Irish Free State, but subject to the significant addition of the first sub-section quoted above.

34. The Constitution also introduced (in Article 40.I) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.I goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.

35. This constitutional framework is not dissimilar to that mentioned by Lord Scarman as desirable in the passage from his speech in Whitehouse v. Lemon quoted earlier in this Judgment. But as with Lord Scarman’s suggestion, though for different reasons, the implications of it for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established Church and an established religion could survive in such a constitutional framework. Certainly it is difficult to see how the view of the majority in the House of Lords in Whitehouse v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion.

36. There is no doubt that the crime of blasphemy exists as an offence in Irish Law because the Constitution says so. It says that the publication or utterance of blasphemous matter “is an offence which shall be punishable in accordance with the law”. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. The Censorship of Films Act, 1923 S.7 (2) and S.13 (1) of the Defamation Act, 1961 assume that the crime exists without defining it. It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.

37. From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or of Polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not? The following passage from the Judgment of Walsh, J. in Quinn’s Supermarket v. Attorney General [1972] IR 1 at p. 23 - 24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:-

38. In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out neither the actus reus nor the mens rea is clear. The task of defining the crime is one for the Legislature, not for the Courts. In the absence of legislation and in the present uncertain state of the law the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the Respondents.

39. Mr. Brady, in the manner of an able advocate, got across to the Court the indignation which his client felt at what he perceived to be an insult to the Sacrament of the Eucharist.

40. The cartoon may indeed have been in very bad taste. But the Court having studied the cartoon and the article by Dr. Conor Cruise-O’Brien which it accompanies, is convinced that no insult to the Blessed Sacrament was intended and that no jury could reasonably conclude that such insult existed or was intended to exist. The theme of Dr. Conor Cruise-O’Brien’s article, whether well founded or not, was that the politicians had resisted the guidance of the Roman Catholic Church on the issue of divorce but that it was not equally clear that they would resist such guidance on future occasions. It appears to the Court that the cartoon was meant to illustrate this theme and no more. That is why the question mark is placed after the phrase “Hello progress - bye bye Father”.

41. The Court fully agrees with the opinion of the learned High Court Judge on this aspect of the case and will accordingly dismiss the appeal.