R (Green) v City of Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 05 December 2007 |
| Neutral Citation | [2007] EWHC 2785 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2007 |
| Docket Number | Case No: CO/1199/2007 |
[2007] EWHC 2785 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Hughes
Mr Justice Collins
Case No: CO/1199/2007
Mr Michael Gledhill QC and Mr Mark Mullins (instructed by Criminal Law Advocates ) for the Claimant
Miss Naina Patel (instructed by Olswang ) for the 1 st interested party
Mr David Pannick QC and Mr Javan Herberg (instructed by British Broadcasting Corporation Litigation Department ) for the 2nd interested party
Hearing dates: 20 th and 21 st November 2007
This is the judgment of the Court, to which we have both contributed.
On 8 January 2007, the Claimant, Mr Green, a member of an organisation called Christian Voice, sought to bring a private prosecution for the ancient offence of blasphemous libel. His target was a theatrical work entitled 'Jerry Springer: the Opera'. This had been performed in various theatres in the UK, including runs within the jurisdiction at the National and Cambridge Theatres in London between April 2003 and February 2005; the last performance alleged was at Brighton in July 2006. One live but also recorded performance had been broadcast by the BBC on 8 January 2005. The Claimant sought from the Magistrates Court summonses against the producer of the stage play and the Director General of the BBC.
The District Judge refused to issue the summonses. She held (1) that the prosecution was prevented by the Theatres Act 1968; and (2) that there was no prima facie case of blasphemous libel. She added (3) that given the long delay and the circumstances in which this archaic offence had been invoked, the application bordered on the vexatious, but this was not a reason for her decision.
This has been the hearing of the Claimant's application for judicial review of the District Judge's decision. He seeks a mandatory order requiring her to issue the two summonses.
The general description of the theatrical work is common ground. It is a parody of Mr Springer's television chat show. The stock in trade of the original chat show is the presentation as entertainment of dysfunctional people who have lurid, and largely sexual, stories to tell. Violence or abuse involving the studio audience and/or the guests is a frequent feature of the show. Whilst no doubt it has its defenders, critics have focussed on its elements of prurience, foul language and the exploitation of the vulnerable.
The play which is the subject of these applications is in two acts. It is set to music, hence the title. In the first act, the chat show is lampooned. A succession of extreme characters are presented as guests. Their revelations are lurid and, to many, probably offensive, and the language is incessantly bad, but there is nothing of significance bearing upon religion in anything portrayed. The host, Mr Springer, is portrayed as recalling, but dismissing, his lost idealism. At the end of the act, he is shot by one of the 'guests'.
The second act revolves around Springer imagining his descent into hell. He is confronted by his destiny. The first act characters reappear as Satan, Christ, God, Mary and Adam and Eve. Mr Springer treats them as chat show guests. In their behaviour and language they exhibit considerable excesses, as his terrestrial guests habitually do. The particular scenes to which the Claimant draws attention include (but are not limited to) the following:
i) an argument between the Satan character and the Christ character; the former abuses the latter; both swear; the Christ character tells Satan to talk to the stigmata; Satan offers a representation of a large Communion wafer; the Christ character is accused of being homosexual and accepts it;
ii) Eve, sitting alongside the Christ character as 'guests', fondles his genitals under his loincloth; Satan swears dismissively at the crucifixion;
iii) a character in the role of Mary is the subject of a song suggesting that she was tricked by God; there are references to a failed condom;
iv) the God character is glossy but inadequate; Springer is invited to help him; a chorus includes the repeated chant of 'Jerry Eleison', which is a parody of the Greek 'Kyrie Eleison', or 'Lord have mercy', a regular feature of Christian services in many denominations.
It is apparent from the Claimant's own description of this work, confirmed by our own brief viewing of a recording of it, that its target is the tasteless 'confessional' chat show, rather than the Christian religion. The eponymous hero is visited by destiny and unequivocally receives his come-uppance. The last scenes show that he is indeed, despite anything he may have imagined in his dying throes, dead from the shooting at the end of Act One.
The Claimant's case is that no matter what the merits or demerits of the artistic qualities of this work, it contains material which is contemptuous and reviling of the Christian religion, of Christ and several biblical characters and of the formularies and tenets of the Church, and further that it is delivered in a scurrilous and ludicrous manner; as such, he contends, it constitutes the offence of criminal blasphemous libel whether or not its principal target is Mr Springer.
The offence of blasphemous libel
Although it is very rarely invoked, the existence of the offence of blasphemous libel is established in English law. That is demonstrated by the decision of the House of Lords in Whitehouse v Lemon [1979] AC 617, where the point was conceded after elaborate review of its history in the Court of Appeal. Before that case, the last known instance of the offence being invoked was in 1922. There appears to have been no other since 1979 until the present. Nevertheless, Mr Pannick QC and Miss Patel, for the interested parties, rightly disclaim, at least in this court, any submission that the offence is bad in law, whether as inconsistent with Article 10 ECHR or otherwise.
Once it be established that the production was intentionally performed in the theatre or broadcast on the television (as to which there is and can be no dispute here) the elements of the offence are common ground. First, there must be contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the bible or the formularies of the Church of England. Second, the publication must be such as tends 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 second of these elements is important and has been well established now for over one hundred years. Until the second half of the seventeenth century after the restoration, blasphemy was dealt with by the ecclesiastical courts or Star Chamber. Thereafter it was recognised to be a common law misdemeanour and so punishable in the ordinary courts. At that time, any attack on Christianity or the Church of England would, because of the identity of church and state, and the near universality of Christian conviction in this country (whatever the sectional differences), have led to a ready assumption that the second element would follow naturally from the first: see for example Taylor's Case (1676) 3 Keb 607:
"For to say that religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved and that Christianity is a parcel of the laws of England and therefore to reproach Christianity is to speak in subversion of the law."
But by the nineteenth century, it became necessary to identify the second element separately. Lord Denman CJ's direction to the jury in R v Hetherington (1841) 4 St Tr NS 563 at 590 began to do so:
"Because, a difference of opinion may subsist, not only as between different sects of Christians, but also with regard to the great doctrines of Christianity itself……even discussions on that subject may be by no means a matter of criminal prosecution but, if they be carried on in a sober and temperate and decent style even those discussions may be tolerated and may take place without criminality attaching to them; but that if the tone and spirit is that of offence and insult and ridicule, which leaves the judgment really not free to act and therefore cannot be truly called an appeal to the judgment but an appeal to the wild and improper feelings of the human mind, more particularly in the younger part of the community, in that case the jury will hardly feel it possible to say that such opinions, so expressed, do not deserve the character which is affixed to them in this indictment."
To the same effect, Lord Coleridge CJ directed the jury in R v Ramsay and Foote (1883) 15 Cox CC 231 as follows:
"the mere denial of the truth of the Christian religion or of the Scriptures is not enough per se to constitute a writing a blasphemous libel….But indecent and offensive attacks on Christianity or the Scriptures, or sacred persons or objects, calculated to outrage the feelings of the general body of the community, do constitute the offence of blasphemy…"
This manner of expressing the offence received emphatic endorsement by the House of Lords in Bowman v Secular Society [1917] AC 406. Lord Sumner (at 466–7) expressed it thus:
"Our courts of law, in the exercise of their own jurisdiction, do not and never did that I can find, punish irreligious words as offences against God. As to them they held that deorum injuriae dis...
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