Divisional Court
| Published date | 01 May 1991 |
| Date | 01 May 1991 |
| DOI | http://doi.org/10.1177/002201839105500202 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
IMMEDIATE
UNLAWFUL
VIOLENCE
RVHorseferry
Road
Metropolitan Stipendiary Magistrate, ex p
Siadartan
In R v Horseferry Road Metropolitan Stipendiary Magistrate, ex p
Siadartan [1990] 3
WLR
1006 the applicant sought judicial review
of the magistrate's refusal to issue a summons against Penguin
books alleging an offence under s 4(1) of the Public
Order
Act
1986, by distributing the book The Satanic Verses, which contained
abusive and insulting writing whereby it was likely that unlawful
violence would be provoked.
The
Divisional Court held that the matter turned on the
interpretation of s 4(1). The phrase 'such violence' used at the
end of the section was to be interpreted to mean 'immediate
unlawful violence'. The Court reached this conclusion on three
grounds-the
context, the proper reading of the section, and the
application of the principle that if a penal statute has two possible
meanings the meaning most favourable to the defendant should
be adopted. In the Court's view, although this was only obiter,
"immediate" did not mean instantaneous, but did indicate proxim-
ity in time and causation.
Ruth Harrison
BLASPHEMY LAWS ONLY
PROTECT
CHRISTIANITY
RVChief Metropolitan Magistrate, ex p Choudry
In R v Chief Metropolitan Magistrate ex p Choudry [1990] 3 WLR
987 the applicant sought judicial review of a magistrate's decision
refusing to issue summonses against the author, Salman Rushdie,
and the publishers, Viking Penguin Publishing Co Ltd, on the
grounds (1) that the magistrate was wrong to hold that the common
123
Journal
of
Criminal Law
law of blasphemy applied only to Christianity and (2) that the
book had created discontent among
Her
Majesty's subjects and
between classes of those subjects and had caused the breakdown
of diplomatic relations between countries. The Divisional Court
dismissed the application.
The
Divisional Court first addressed the question whether it
could grant judicial review of the decision of a magistrate made in
the lawful, even if erroneous, exercise of his judgment and
discretion.
The
magistrate's discretion to issue a summons pursuant
to s 1 of the Magistrates' Courts Act 1980 is a discretion which
must be exercised judicially.
If
the magistrate misdirects himself
in law, the court will interfere.
If
the magistrate's decision is based
on a finding of fact, the court will only interfere if the findings can
be said to be perverse, in the sense that no reasonable magistrate
could have reached them, or that there was no evidence to support
them.
In this case the magistrate's decision was based on his ruling
that the law of blasphemy in England and Wales only protects
Christianity. He made no finding as to whether the book is
blasphemous of the Islamic religion.
This case was the first in which it was claimed that the law of
blasphemy applied to religions
other
than Christianity.
The
court
reviewed the history of blasphemy in the criminal law , in particular,
the speeches in R v Lemon [1979] AC 617. Nothing in the speeches
supported the view that the offence extended beyond Christianity.
Lord Scarman said at p 658 that in his view any change would be
for Parliament.
Apart
from a dictum of Judge King-Hamilton in
the Lemon case, all the case law was one way.
The
court then considered whether it should change the law.
The
mere fact that the law was unjust or anomalous was not
enough. Only if it were unclear could the court change it. Even if
it were open to the court to change the law, they were of the
opinion that it was for Parliament, especially since the Law
Commission in its Report No 145 in 1985 had recommended
abolition of the offence.
The
court also heard argument that Articles 9, 10 and 14 of the
European
Convention on Human Rights required the creation of
a law of blasphemy to protect Islam. This was rejected by the
court.
124
Divisional Court
On the question of seditious libel, the court held that the case
lacked the element of public mischief required by the law and
approved the law as set out in the Supreme Court of Canada case
of Boucher v The King (1951) 2
DLR
369.
Ruth Harrison
POLICE
OFFICER
NOT ACTING IN EXECUTION OF DUTY
Riley v
DPP
In Riley v
DPP
(1990) 91 Cr
App
R 14 police officers went to the
defendant's home to arrest his brother. The defendant opened the
door
and, on ascertaining their purpose, allowed the police to
enter. They were allowed to search all the rooms in the house,
which was owned by the defendant's father. The defendant, who
was on the first floor landing of the house when his brother was
found downstairs and arrested, pushed past an officer and made
his way to the stairs, where he was confronted by another officer.
He tried to push past this officer, causing him to lose his balance
momentarily. As the defendant tried to push his way past the
officers on hearing that his brother had been arrested, he was
arrested for obstructing an officer in the execution of his duty.
When the police tried to put the defendant in a waiting police van,
he struck one officer and bit the thumb of another.
The defendant was acquitted of charges of obstruction and
assault on one officer, but convicted under s 51(1) of the Police
Act 1964 for the assault which resulted in the injury to the officer's
thumb. On an appeal by way of case stated, the defendant was
acquitted. The Divisional Court criticised the justices in the case
for failing to ensure that the findings of fact were contained in one
early paragraph of the case. The Court also said that the justices
should ensure that their reasons for rejecting a submission of no
case to answer should be shortly and succinctly stated, and their
case should not include an elaborate discussion of the law.
The main questions which arose in the appeal were as follows:
(1) Were the police lawfully on the premises? The court stated
that the police were lawfully on the premises if invited in by the
125
To continue reading
Request your trial