Whitehouse v Gay News Ltd

The appellants are the editor and publisher of a magazine called "Gay News". As its name suggests its readership consists mainly of homosexuals though it is on sale to the general public at some bookstalls. In an issue of "Gay News" published in June 1976 there appeared a poem by a Professor James Kirkup entitled "The Love that Dares to Speak its Name" and accompanied by a drawing illustrating its subject-matter. The poem purports to describe in explicit detail acts of sodomy and fellatio with the body of Christ immediately after His death and to ascribe to Him during His lifetime promiscuous homo-sexual practices with the Apostles and with other men.

The issue in this appeal is not whether the words and drawing are blas-phemous. The jury, though only by a majority of ten to two, have found them to be so. As expressed in the charge against him they "vilify Christ in His life and in His crucifixion;" and do so in terms that are likely to arouse a sense of outrage among those who believe in or respect the Christian faith and are not homosexuals and probably among many of them that are. The only question in this appeal is whether in 1976 the mental element or mens rea in the common law offence of blasphemy is satisfied by proof only of an intention to publish material which in the opinion of the jury is likely to shock and arouse resentment among believing Christians or whether the prosecution must go further and prove that the accused in publishing the material in fact intended to produce that effect upon believers, or (what comes to the same thing in criminal law) although aware of the likelihood that such effect might be produced, did not care whether it was or not, so long as the publication achieved some other purpose that constituted his motive for publishing it. Wherever I speak hereafter of "intention" I use the expression as a term of art in that extended sense.

At the trial the judge in a carefully considered ruling given after lengthy argument held that the offence was one of strict liability. The ruling made irrelevant (and therefore inadmissible) any evidence by Mr. Lemon, the editor of "Gay News", about his own intentions in publishing the poem and drawing; accordingly he did not go into the witness box and no other evidence was called on behalf of the accused. The judge summed up to the jury in masterly fashion and in accordance with his ruling; the jury by a majority verdict convicted both appellants.

The convictions were upheld by the Court of Appeal, who certified that the following point of law of general public importance was involved in their decision to dismiss the appeals.

"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?".

My Lords, the offence of publishing a blasphemous libel has a long and at times inglorious history in the common law. For more than fifty years before the prosecution in the instant case was launched the offence seemed to have become obsolete; the last previous trial for it having taken place in 1922. Originally the offence was cognisable only in the ecclesiastical courts. Its history from the seventeenth century when jurisdiction over it was first assumed by the courts of common law until its apparent disappearance from the criminal calendar after 1922 is traced in fascinating detail in Professor Nokes's work "A History of the Crime of Blasphemy" published in 1928 and now out of print. A shorter historical account is to be found in Lord Sumner's famous speech in Bowman v. The Secular Society [1917] A.C. 406 but none of the speeches in that case touch at all upon the question of intention. The judgment of the Court of Appeal in the instant case contains a valuable historical survey of most of the relevant cases with special reference to the intention of the publisher in publishing the blasphemous matter. In this House, too, the speeches to be delivered by my noble and learned friends Viscount Dilhorne and Lord Edmund-Davies will each incorporate a critical analysis of the varying terms in which judicial pronouncements on mens rea in blasphemous and seditious libel were expressed as the nineteenth century progressed. My own complete agreement with Lord Edmund-Davies's analysis relieves me of the task of attempting what would be no more than a paraphrase of it; but, since it leads to a conclusion as to the state of the law upon this topic by the time the century ended which is diametrically opposed to that reached by Viscount Dilhorne, (with which my noble and learned friend Lord Scarman also concurs) I feel bound to concede that by the beginning of the present century the law as to the mental elements in the offence of blasphemous libel was still uncertain. The task of this House in the instant appeal is to give to it certainty now, and to do so in a form that will not be inconsistent with the way in which the general law as to the mental element in criminal offences has developed since then.

Two things emerge clearly from the earlier history. First that between the seventeenth century and the last quarter of the nineteenth, when Sir James Fitzjames Stephen published the first edition of his History of the Criminal Law the characteristics of the substantive offence of blasphemous libel had undergone progressive changes; and secondly that, as Stephen reluctantly acknowledges in his chapter on Seditious Offences, those changes (which he personally regretted) were largely shaped by the procedural changes in the trial of prosecutions for all forms of criminal libel resulting from Fox's Libel Act of 1792 and by the passing of Lord Campbell's Libel Act of 1843.

In the post-Restoration politics of seventeenth and eighteenth century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself; so blasphemous and seditious libel were criminal offences that went hand in hand. Both were originally what would now be described as offences of strict liability. To constitute the offence of blasphemous libel it was enough for the prosecution to prove that the accused, or someone for whose acts the law of libel held him to be criminally responsible, had published matter which (in trials held before Fox's Libel Act) the judge ruled, or (in trials held after that) the jury found, to be blasphemous, whether the accused knew it to be so or not. Furthermore, criminal libel in its four manifestations—seditious, blasphemous, obscene and defamatory, was unique among common law offences, in imputing to any person who carried on the business of publisher or bookseller, vicarious criminal liability for acts of publication done by persons in his employment even though these were done without his authority, consent or knowledge. Since in practice prosecutions were brought against publishers and booksellers rather than against authors, so long as this remained the law, as it did until the passing of section 7 of Lord Campbell's Libel Act in 1843, it could not logically be reconciled with the notion that the accused's own actual intention was a relevant element in the offence.

The severity of the law of blasphemous libel had, however, been somewhat mitigated before 1843 by judicial rulings not as to the mens rea but as to the actus reus of the offence. To publish opinions denying the truth of doctrines of Whitehouse. the established Church or even of Christianity itself was no longer held to amount to the offence of blasphemous libel so long as such opinions were expressed in temperate language and not in terms of offence, insult or ridicule. R. v. Hetherington (1841) 4 St. Tr. N.S. 563. This introduces into the concept of the actus reus, in addition to the act of publication itself, the effect that the material published is likely to have upon the minds of those to whom it is published.

At a period when an accused could not give evidence in his own defence and his intention to produce a particular result by his acts, where this was an ingredient of the offence, was ascertained by applying the presumption that a man intends the natural consequences of his acts, the distinction was often blurred between the tendency of the published words to produce a particular effect upon those to whom they were published and the intention of the publisher to produce that effect. So that one finds Holt in his text-book on the law of libel published in 1816 defining blasphemous libel as requiring the publication to be made "with an intent to subvert man's faith in God, or to impair his reverence of him" and during the twenty years before Lord Campbell's Libel Act in 1843 one also finds in reported summings-up of various judges occasional references to the intention of the accused.

The abolition in 1843 of vicarious criminal liability for blasphemous libel and the growing influence of Starkie's text-book on the law of criminal libel opened the way for a further development in the definition of the crime of blasphemous libel; but this time in its mental element or mens rea which...