Are we getting blasphemy law in disguise?

In 2008, the common law offence of blasphemy and the offence of blasphemous libel were repealed in the Criminal Justice and Immigration Act, section 79. While the law had almost passed into desuetude, it had still found some use in the 20th and early 21st centuries. In the 2000s, Christian Aid had sought to bring a private prosecution against the producer of the stage play Jerry Springer: The Opera and the BBC Director General who aired it on TV. The district judge refused to issue summonses. An application for judicial review was also refused. Mary Whitehouse was more successful in the 1970s when she brought a private prosecution against Gay News for publishing “The Love that Dares to Speak its Name”,  a poem that described graphic homosexual sexual encounters with Christ. Lemon was sentenced to nine months’ imprisonment, suspended for 18 months. He was fined £500. Gay News itself was fined £1,000. Before that, in the early 1920s, John William Gott was prosecuted (in this case a public prosecution) after sharing pamphlets that described Jesus Christ entering Jerusalem as being “like a circus clown on the back of two donkeys.” These cases were taken in respect of words against Christianity. In R v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury an attempt to bring a prosecution against the author of The Satanic Verses, Salman Rushdie, and its publishers in 1991 failed since the offence of blasphemous libel did not apply to Islam.

The repeal of blasphemy law might be seen to extend the ambit of expression. Yet, religion, Christian or otherwise, has nonetheless received protection from offensive or provocative statements through the criminal law. In Manchester last week, Martin Frost was arrested after he tore up a copy of the Quran before setting it on fire. Frost had done so as part of a protest against the shooting of Salwan Momika in Sweden, who had likewise set a Quran on fire. The protest took place near the Glade of Light, a memorial to the victims of the Manchester bombing. A crowd of supporters gathered near Frost. When a Muslim passerby, Fahad Iqbal, tried to intervene, Frost reportedly shouted, “This is what I think of your Quran. Islam has no place in civil society”. He then ripped out pages that he said had talked about paedophilia and set them alight. In a statement to the public, the police described this as an act of “intimidation” which was not protected by freedom of expression.

Frost later pleaded guilty to racially or religiously aggravated intentional harassment, alarm or distress, contrary to section 4A of the Public Order Act 1986. At first, it appeared as if Frost had been arrested regarding racial aggravation, as the police had only mentioned that element, but it is more likely that it was an arrest on religious aggravation grounds. In a victim impact statement, the passerby at the protest said:

I was quite shocked, disgusted and offended. I’m a Muslim. I still can’t believe someone would do this. When he began to burn the Quran my heart was about to break out. This is the most emotion I have ever felt.

District Judge Margaret McCormack said that:

The Quran is a sacred book to Muslims and treating it as you did is going to cause extreme distress. This is a tolerant country, but we just do not tolerate this behaviour.

The case is not the only use of public order legislation to punish those who insult religion. Harry Taylor in 2010 was found guilty of the same offence after leaving anti-religious (including anti-Christian) publications in the prayer room at John Lennon Airport; in 2011, Andrew Ryan was convicted of a public order offence after burning a Quran in Carlisle; and in 2013 Peter James Crawford was charged with a public order offence after tearing pages of the Quran next to a stall run by the Islamic Information Centre — although this ended with the jury unable to reach a verdict and the CPS decided not to pursue a retrial.

The effect of these prosecutions has not been to reinstitute blasphemy exactly, but it has, in any event, restricted speech relating to religion — and the religion protected is not only Christianity. This raises concerns that impolite or offensive speech against religion, which is as apt for criticism as anything else that shapes our lives, is being unduly curtailed. District Judge Margaret McCormack’s approach in the Martin Frost case of attaching weight to sensitivities risks privileging religious coercion over the rights of non-believers to dissent in strong terms. While the CPS believe that the law is in favour of prosecuting these cases, it is arguable that an appeal court could have a different view, taking in account freedom of expression rights.  

Since the Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into domestic law, courts must interpret legislation as far as it is possible to do so in a way that is compatible with convention rights. Courts must assess whether acts of expression are protected by the ECHR under article 10 and whether there has been a disproportionate interference with those rights. Public Order Act offences, particular sections 4A and 5, will sometimes require a consideration of proportionality, since the actions they seem to criminalise are quite wide ranging. In the case of both sections, proportionality may be met by a narrow construction of the words of the section or may be considered under the defence provided if article 10 is properly engaged. There are several judgments that engage with the issue of whether an interference in respect of public order offences is disproportionate.

The section 4A offence reads as follows:

(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

Even before applying article 10, previous decisions have restricted interpretation of the words in public order offences. In Brutus v Cozens, the House of Lords decided that “insulting” would have a meaning that goes beyond that which affronts, disrespects or which shows contemptuousness.

With article 10, the expression protected is wide. Sedley LJ, in a well-known passage in Redmond-Bate, said that:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.

Percy v DPP considered the human rights implications in respect of section 5 of the Public Order Act 1986, a provision that has similarities with section 4A and where rights analysis may equally apply. As part of a protest against the Star Wars programme at the American airbase in RAF Feltwell, Percy wrote “Stop Star Wars” on the USA flag and trod on it. In convicting Percy, the District Judge observed the flag was of “significant symbolic importance to them, protected from disrespectful treatment”. The High Court quashed the conviction on the basis that the judge in the court below had placed too much weight on the fact that Percy’s actions could have been avoided when considering expression rights. It may have been the case that Percy would have been convicted in any case, but the High Court decided against ordering a retrial. Still, the case establishes that disrespectful treatment of symbols is protected and courts will have to consider the specific facts. It is fair to assume that article 10 protects Frost’s actions, therefore, before considering whether an interference with his rights is disproportionate.

Abdul v DPP was a case concerning a protest against a homecoming parade for returning soldiers from Afghanistan. The appellants had shouted “baby killers” and “rapists” at the soldiers. They were charged with a section 5 offence. On the specific facts, a prosecution was proportionate because of the location of the protest and the defamatory tendency of the words to cause even the most reasonable members of the parade to be outraged. The remarks were not in respect of general policy, but targeted at members of the parade themselves. While the risk to public order was a major factor in the decision to prosecute, this factor was not determinative and in other cases the rights of protesters would be protected.

The reasoning in Abdul is important to consider. Shouting abuse at a parade may reasonably be proscribed by law, but the risk of violence alone may, in some instances, result from an unreasonable reaction. To place weight on this factor alone would give a veto on expression rights to those who are overly sensitive and who use those sensitivities to coerce others into silence.

In the previously mentioned case concerning Jerry Springer: The Opera, the High Court made the following observation regarding whether there was a conflict between religious rights under article 9 and expression rights under article 10:

… it does not seem to us that insulting a man’s religious beliefs, deeply held though they are likely to be, will normally amount to an infringement of his Article 9 rights since his right to hold to and to practise his religion is generally unaffected by such insults.

Section 29J of the Public Order Act 1986 gives further protection of strong criticism of religion when it states that (in relation to a different section of the Act):

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Frost was reacting to a matter of importance: the violent threat to freedom of expression in Europe

Applying the above to the Frost case and the Quran burning specifically, it is arguable that the freedom of expression consideration may be weighed in his favour. Frost was reacting to a matter of importance: the violent threat to freedom of expression in Europe following the killing of Salwan Momika. This is a political matter as much as a religious one. The manner of expression may not receive the highest level of protection, but the political debate should receive some protection. Frost targeted the religion and its political effects rather than encouraging violence or discrimination against its adherents. The fact that the symbol was valued was not determinative. The use of the symbol was an important way of conveying his message in favour of free speech, as Frost was defending Momika’s rights. Moreover, Frost’s protest did not take place next to a religious event or venue in an attempt to cause immediate outrage. It was a pre-planned event where Frost’s supporters had gathered. A single man on the occasion took offence and intervened, choosing to get involved. Frost was plainly not engaging in an act of intimidation against this passerby, no matter what the police had said. His actions were insulting to a religion — they were not directed so as to put the passerby in fear of violence and they did not encourage violence against him.

There are problems, however, in how other cases have been decided. In Norwood, the appellant had displayed a sign that said  “Islam out of Britain” and “Protect the British people” and had a depiction of crescent and star together with a prohibition sign. It had an image of one of the Twin Towers after it had been hit by planes. There was no evidence that it was seen by a Muslim.  He was convicted of an offence contrary to section 5 of the Public Order Act 1986, before the “insulting” element was removed from that section. Lord Justice Auld in the High Court decided that the poster was “clearly racially directed and racially insulting” and that it urged “all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people” and that a conviction was properly aimed at protecting the rights of others and preventing public disorder.

There may be two points made about Norwood in relation to Frost’s case. First, the District Judge in Frost’s appeared to concentrate mainly on the Quran burning. On that point, Frost was not advocating the removal of Muslims from Britain, but attacking a symbol. Second, the Norwood case itself sits awkwardly with some of the above article 10 principles and logic more generally. The sign in Norwood specified a religion and not a race. It did not mention religious followers, but the religion itself. Auld LJ seemed to consider that the proportionality was not in question because he had already found intention to insult Muslims. Circumstances where a conviction would be disproportionate would be “difficult to envisage”, according to Auld LJ. This lack of sensitivity to particular facts in section 4A cases where article 10 is engaged is probably not the right approach and may be challenged.

Frost saying “Islam has no place in civil society” is possibly more vulnerable to the criminal law than the Quran burning, then, given the Norwood reasoning. Yet, the concentration on religion and the fact that Frost was clearly not calling for mass expulsions may show that proportionality could have been decided in his favour. In any event, Norwood may require reconsideration.

It is understandable that Frost pleaded guilty. He may have been advised to do so. He may have decided that the risk of a custodial sentence meant that taking credit for an early guilty plea was worthwhile, especially considering the threats he might encounter in prison. The chance that an appeal court would quash a conviction would perhaps be too distant. Not all case law is, after all, favourable to Frost. Even so, it is still regrettable that the CPS’ and the police’s interpretation of public order law has not been challenged. There is currently uncertainty at national level and in Strasbourg regarding just how far rights to insult religion extend. The Strasbourg jurisprudence is in need of clarification. Restraining expression in this context could well prove to be a disproportionate interference with Convention rights, enforcing a quasi-blasphemy offence in the name of preserving public order and sparing the feelings of the religious.