Clear case to answer is prerequisite of blasphemous libel prosecution

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John Corway (applicant) v Independent Newspapers (Ireland) Ltd, Independent Newspapers plc and Aengus Fanning (respondents).

Blasphemous Libel Application for leave to commence criminal prosecution - Whether clear case to answer - Whether public interest served by prosecution - Defamation Act 1961 (No. 40), section 8 - Newspaper Libel and Registration Act 1881 (44 & 45 Vict. c. 60), section 3 - Law of Libel Amendment Act 1888 (51 & 52 Vict. c. 64), section 8.

The High Court (before Mr Justice Geoghegan); judgment delivered 23 October 1996.

WHERE an application is made for leave to commence a criminal prosecution for blasphemous libel pursuant to section 8 of the Defamation Act 1961, the applicant must establish a clear prima facie case in the sense that it is a case which is so clear at first sight that there is beyond argument a case to answer if the matter goes before a criminal court. Further, before granting leave, the court must be satisfied that the public interest is served by the commencement of a prosecution.

The High Court so held in refusing leave to commence a criminal prosecution for blasphemous libel against the respondents.

Gerard Brady BL for the applicant; John McMenamin SC and Eoin McCullough BL for the respondents.

Mr JUSTICE GEOGHEGAN said that in November 1995, after the divorce referendum, an article by Conor Cruise O'Brien appeared in the Sunday Independent the basis of which was the perceived diminution in influence of the Catholic Church, together with a cartoon showing two prominent ministers and the Taoiseach, Mr Bruton, each with a hand raised rejecting a host and chalice being offered by a priest. The applicant applied for leave to commence a criminal prosecution for blasphemous libel against the respondents who, it was claimed, were responsible for the publication of the article and cartoon.

Mr Justice Geoghegan said that the requirement to obtain leave of the court contained in section 8 of the Defamation Act 1961 was not new and had its origins in section 3 of the Newspaper Libel and Registration Act 1881 and section 8 of the Law of Libel Amendment Act 1888.

Mr Justice Geoghegan said that in Gallagher v Independent Newspapers (unreported, 3 July 1978) Mr Justice Finlay had set out the principles which govern an application for leave to commence a prosecution for criminal libel. Analogous, principles applied in relation to blasphemous libel. A balance had to be struck under the Constitution between the right of free speech and freedom of expression and ensuring that appropriate criminal prosecutions for libel which were in the public interest were not impeded.

The first of those principles requires that the applicant establish that it is a case that is so clear at first sight that there is beyond argument a case to answer if the case were to go before a criminal court. Mr Justice Geoghegan was of the view that the applicant had failed to establish this because of the absence of the essential ingredients of the offence. It is of the essence of blasphemous libel that there be an attack on some tenet of the Christian religion. In this instance the cartoon was intended to be a comic depiction of an alleged factual situation that the Government was no longer willing to follow church guidance and was not an attack on any doctrine or belief of that church.

Mr Justice Geoghegan said that if it be the case that blasphemy be constituted by any matter likely to offend Christian sensibility irrespective of whether it is attacking religious beliefs or not then this cartoon would arguably be blasphemous in that sense and in having the intention to publish the cartoon the necessary mens rea would be present. However, Mr Justice Geoghegan was of the view that the case turned on actus reus and not mens rea.

On consideration of the leading authorities Bowman v Secular Society Limited [1917] AC 406 and R v Lemon [1979] 1 All ER 898, Mr Justice Geoghegan concluded that while the causing of offence is a necessary ingredient of the modern crime of blasphemy it must accompany an attack on some tenet or practice of the Christian religion to constitute blasphemy. It is no longer the law that any criticism of the Christian religion is blasphemous.

Mr Justice Geoghegan said that the fourth principle of Mr Justice Finlay, which was concerned with the question of whether the public interest required the institution of proceedings, had not been satisfied. The purpose of the cartoon was obvious on a proper examination of it and is context and there was no evidence that the newspaper made a habit of offending Christian beliefs.

Mr Justice Geoghegan said that on that further ground he would refuse leave to commence criminal proceeding for blasphemous libel against the respondents, and it was not necessary to consider the other questions raised.

Solicitors: Caoimhgin MacCathmhaoill (Galway) for the applicant; McCann FizGerald (Dublin) for the respondents.

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