R v Lemon R v Gay News Ltd
| Jurisdiction | UK Non-devolved |
| Year | 1978 |
| Court | House of Lords |
| Date | 1978 |
|
WHITEHOUSE |
RESPONDENT |
|
LEMON |
APPELLANT |
|
WHITEHOUSE |
RESPONDENT |
|
GAY NEWS LTD. |
APPELLANT |
Crime - Blasphemous libel - Mens rea - Publication of homosexual poem concerning body of Christ after crucifixion - Intent to blaspheme - Whether essential element of offence
Law Reform - Whether necessary - Blasphemous libel - Shock, outrage or insult to feelings of Christians - Whether offence to be extended to protect religious beliefs and feelings of non-Christians
The appellants were the editor and publishers of a magazine called "Gay News," the readership of which consisted mainly of homosexuals, though it was on sale to the general public at some bookstalls. An issue published in June 1976 contained a poem entitled "The Love that Dares to Speak its Name," accompanied by a drawing illustrating its subject matter. It purported to describe in explicit detail acts of sodomy and fellatio with the body of Christ immediately after His death and ascribed to him during His lifetime promiscuous homosexual practices with the Apostles and other men. A private prosecution was instituted against the appellants by the respondent charging them with blasphemous libel, the particulars of offence alleging that they had unlawfully and wickedly published or caused to be published a blasphemous libel concerning the Christian religion, namely, an obscene poem and illustration vilifying Christ in His life and in His crucifixion. The trial
judge directed the jury that for the appellants to be convicted it was sufficient if they took the view that the publication complained of vilified Christ in His life and crucifixion and that it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel. The jury convicted the appellants. The Court of Appeal dismissed their appeals.
On appeals by the appellants by leave of the House of Lords:-
Held, dismissing the appeals (Lord Diplock and Lord Edmund-Davies dissenting), that guilt of the offence of publishing a blasphemous libel did not depend on the accused having an intent to blaspheme, but that it was sufficient for the prosecution to prove that the publication had been intentional and that the matter published was blasphemous (post, pp.
Rex v. Dean of St. Asaph (1784) 21 St.Tr. 847; Reg. v. Hetherington (1841) 4 St.Tr.N.S. 563; Reg. v. Bradlaugh(1883) 15 Cox C.C. 217 and Reg. v. Ramsay and Foote (1883) 15 Cox C.C. 231 applied.
Rex v. Aldred (1909) 22 Cox C.C. 1 considered.
Per curiam. A blasphemous libel is matter calculated to outrage the feelings of Christians (post, pp.
Per Lord Edmund-Davies and Lord Scarman. A tendency to cause a breach of the peace is not a necessary element of the offence of publishing a blasphemous libel (post, pp.
Per Lord Scarman. There is a case for legislation to extend the common law offence of blasphemous libel to protect the religious beliefs and feelings of non-Christians (post, p.
Decision of the Court of Appeal (Criminal Division) [1979] Q.B. 10; [1978] 3 W.L.R. 404; [1978] 3 All E.R. 175 affirmed.
The following cases are referred to in their Lordships' opinions:
Bowman v. Secular Society Ltd. [1917] A.C. 406, H.L.(E.).
Director of Public Prosecutions v. Beard [1920] A.C. 479, H.L.(E.).
Director of Public Prosecutions v. Smith [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.(E.).
Lim Chin Aik v. The Queen [1963] A.C. 160; [1963] 2 W.L.R. 42; [1963] 1 All E.R. 223, P.C.
Parmiter v. Coupland (1840) 6 M. & W. 105.
Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234; [1966] 3 All E.R. 77, H.L.(E.).
Reg. v. Bedford, (1714) Gil. 297 (see Bacon's Abridgement, 7th ed. (1832), vol. 5, p. 200).
Reg. v. Bradlaugh (1883) 15 Cox C.C. 217.
Reg. v. Burns (1886) 16 Cox C.C. 355.
Reg. v. Hetherington (1841) 4 St.Tr.N.S. 563.
Reg. v. Hicklin (1868) L.R. 3 Q.B. 360.
Reg. v. Holbrook (1878) 4 Q.B.D. 42.
Reg. v. Holyoake (1842) 4 St.Tr.N.S. 1381; see also The Trial of George Jacob Holyoake, published for the Anti-Persecution Union by Thomas Paterson, 1842.
Reg. v. Hyam [1975] A.C. 55; [1974] 2 W.L.R. 607; [1974] 2 All E.R. 41, H.L.(E.).
Reg. v. Majewski [1977] A.C. 443; [1976] 2 W.L.R. 623; [1976] 2 All E.R. 142, H.L.(E.).
Reg. v. Morgan [1976] A.C. 182; [1975] 2 W.L.R. 913; [1975] 2 All E.R. 347, H.L.(E.).
Reg. v. Moxon (1841) 4 St.Tr.N.S. 693.
Reg. v. Pooley (1857) 8 St.Tr.N.S. 1089 (App.A).
Reg. v. Ramsay and Foote (1883) 15 Cox C.C. 231; 48 L.T. 733.
Rex v. Aldred (1909) 22 Cox C.C. 1.
Rex v. Boulter (1908) 72 J.P. 188.
Rex v. Burdett (1820) 4 B. & Ald. 95.
Rex v. Carlile (Mary) (1821) 1 St.Tr.N.S. 1033.
Rex v. Carlile (Richard) (1819) 1 St.Tr.N.S. 1387 (App.D).
Rex v. Caunt (unreported), November 17, 1947, Liverpool Assizes (Birkett J.); transcript published in "Private Law Pamphlets," Morecambe Press Ltd., 1947.
Rex v. Dixon (1814) 3 M. & S. 11.
Rex v. Gott (1922) 16 Cr.App.R. 87, C.C.A.; see also publication of summing up of Avory J. in "The Freethinker," January 8, 1922, p. 28.
Rex v. Harvey and Chapman (1823) 2 B. & C. 257.
Rex v. Hone (1817); see The Three Trials of William Hone, published by William Hone, 1818.
Rex v. Keach (1665) 6 St.Tr. 701.
Rex v. Dean of St. Asaph (Rex v. Shipley) (1784) 21 St.Tr. 847.
Rex v. Sedley (1663) 17 St.Tr. 155.
Rex v. Woolston (1729) Fitzg. 64; 2 Str. 834; 1 Barnard. 162; 266.
Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347, H.L.(E.).
Taylor's Case (1676) 1 Vent. 293; 3 Keb. 607; 621.
Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L.(E.).
The following additional cases were cited in argument:
Atwood's Case (1617) Cro.Jac. 421; see also Nokes, A History of the Crime of Blasphemy (1928), pp. 21 et seq.
Boucher v. The King [1951] 2 D.L.R. 369.
Reg. v. Ensor (1887) 3 T.L.R. 366.
Reg v. Gathercole (1838) 2 Lew. 237.
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C. 435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898, H.L.(E).
Reg. v. Mowatt [1968] 1 Q.B. 421; [1967] 3 W.L.R. 1192; [1967] 3 All E.R. 47, C.A.
Reg. v. Munslow [1895] 1 Q.B. 758.
Reg. v. Wells Street Stipendiary Magistrate, Ex parte Deakin [1978] 1 W.L.R. 1008; [1978] 3 All E.R. 252, D.C.
Rex v. Lord Abingdon (1794) 1 Esp. 226.
Rex v. Cobbett (1804) 29 St.Tr. 1.
Rex v. Creevey (1813) 1 M. & S. 273.
Rex v. Eaton (1812) 31 St.Tr. 927.
Rex v. de Montalk (1932) 23 Cr.App.R. 182, C.C.A.
Rex v. Rahard [1936] 3 D.L.R. 230.
Rex v. Topham (1791) 4 Term 126.
Rex v. Wicks (1936) 25 Cr.App.R. 168; [1936] 1 All E.R. 384, C.C.A.
Rex v. Wilkes (1770) 4 Burr. 2527.
Rex v. Williams (1797) 26 St.Tr. 653.
Shaw v. Director of Public Prosecutions [1962] A.C. 220; [1961] 2 W.L.R. 897; [1961] 1 All E.R. 330; [1961] 2 All E.R. 446, C.C.A. and H.L.(E.).
Shore v. Wilson (1842) 9 C1. & F. 355.
APPEALS from the Court of Appeal (Criminal Division).
In a private prosecution brought by the respondent, Mrs. Mary Whitehouse, pursuant to leave granted by Bristow J. under section 8 of the law of Libel Amendment Act 1888, the appellants, Denis Lemon and Gay News Ltd., respectively the editor and publishers of "Gay News," a magazine, were charged with blasphemous libel, the particulars of offence alleging that they
"on a day or days unknown between May 1 and June 30, 1976, unlawfully and wickedly published or caused to be published in a newspaper called "Gay News No. 96" a blasphemous libel concerning the Christian religion namely an obscene poem and illustration vilifying Christ in His life and in His crucifixion."
At the trial, before Judge King-Hamilton and a jury at the Central Criminal Court in July 1977, the appellants were convicted, the appellant Lemon being sentenced to nine months' imprisonment, suspended for 18 months, and fined £500 and the appellants Gay News Ltd. being fined £1,000. The appellants appealed against conviction on the ground, inter alia, that the trial judge had been wrong in law in directing the jury that an intent to blaspheme was not a necessary element in the offence of blasphemous libel. The Court of Appeal (Roskill and Eveleigh L.JJ. and Stocker J.) on March 17, 1978, dismissed the appeals. The court certified that the following point of law of general public importance was involved in their decision, viz.:
"the question: Was the learned trial judge correct (as the Court of Appeal held) first in ruling and then in directing the jury that in order to secure the conviction of the appellants for publishing a blasphemous libel: (1) it was sufficient if the jury took the view that the publication complained of vilified Christ in His life and crucifixion; and (2) it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel?"
but refused the appellants leave to appeal.
The appellants appealed by leave of the House of Lords given on a May 17, 1978. The appeals were consolidated.
The facts are stated in their Lordships' opinions.
Louis Blom-Cooper Q.C. and Geoffrey Robertson for the appellant Lemon. The appellant does not propose to argue that blasphemous libel as a crime does not exist. He does propose to argue as to what the House should do in the case of an obsolescent crime that it is sought to revive. The House should give it its modern construction (which may not now be restricted to Christianity). Having regard to modern...
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