R v Lemon; R v Gay News Ltd  1 All ER 898
LORD SCARMAN: My Lords, I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. Professor Kenny, in his brilliant article (1922) 1 CLJ 127) on 'The Evolution of the Law of Blasphemy', gives two quotations which are very relevant to British society today. When the Home Secretary was pressed to remit the sentence on Gott after the dismissal of his appeal , he wrote:
"The common law does not interfere with the free expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country. Mr. Shortt could not support any proposal for an alteration of the common law which would permit such outrages on the feelings of others as those of which Gott was found to be guilty".
When nearly a century earlier Lord Macaulay protested in Parliament against the way the blasphemy laws were then administered, he added ((1922) 1 CLJ at 135): "If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque". When Macaulay became a legislator in India, he saw to it that the law protected the religious feelings of all. In those days India was a plural society; today the United Kingdom is also.
I have permitted myself these general observations at the outset of my opinion because, my Lords, they determine my approach to this appeal. I will not lend my voice to a view of the law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religious feelings from outrage and insult. My criticism of the common law offence of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history.
While in my judgment it is not open to your Lordships' House, even under the Lord Chancellor's policy announcement of 26 July 1966, to extend the law beyond the limits recognised by the House in Bowman v Secular Society Ltd, or to make by judicial decision the comprehensive reform of the law which I believe to be beneficial, this appeal does offer your Lordships the opportunity of stating the existing law in a form conducive to the social conditions of the late 20th century rather than to those of the 17th, 18th or even the 19th century. This is, my Lords, no mere opportunity: it is a duty. As Lord Summer said in his historic speech in Bowman v Secular Society Ltd ( AC 406 at 466(467, [1916(17] All ER Rep 1 at 32):
"The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion, as known to the law, which prevents us from varying their application to the particular circumstances of our time in accordance with that experience".
The point of law certified by the Court of Appeal as of general public importance on which the House gave leave to appeal is in these terms:
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?
The appellants' case is that it was necessary for the Crown to establish a further specific intention, and their counsel formulated the intention as follows: 'the intention to attack the Christian religion so violently or scurrilously as to insult the adherents of the Christian religion to such an extent that a breach of the peace is likely'.
The Crown led no evidence to prove any intention other than the intention to publish the words complained of; and the judge directed the jury in effect that any such evidence would be irrelevant. If, therefore, the appellants are correct in law that an intention beyond that of publication must be proved, it matters not whether their counsel have accurately formulated the specific intention required: their convictions must be quashed.
The appellants Gay News Ltd publish a newspaper for homosexuals called Gay News. The appellant Mr Lemon is its editor. An issue of the paper, published in 1976, contained a poem entitled 'The Love that Dares to Speak its Name' written by Professor James Kirkup. The poem was printed with an illustration of the crucifixion featuring the body of Christ in the embrace of a Roman centurion. The appellants were indicted for the offence of blasphemous libel. They were tried in July 1977 at the Central Criminal Court before his Honour Judge King-Hamilton QC and a jury. After a masterly summing-up (for such it was, whether or not correct on the question of intention), the jury by a majority found both appellants guilty. On appeal, the Court of Appeal upheld the convictions.
In a judgment (delivered by Roskill LJ) remarkable for its learning and historical research the Court of Appeal reached the conclusion that for a defendant to be guilty of publishing a blasphemous libel it was not necessary for the Crown to prove an intent other than an intent to publish the words of which complaint is made. It is enough, the court held, to prove that the defendant intended to publish that which offends.
In your Lordships' House it was recognised that no challenge could effectually be made against the finding of the jury that the poem and illustration were blasphemous. Equally it has to be recognised that no intention to insult or outrage has been established by the modern criteria of English law. No doubt because the judge ruled that any intention other than an intention to publish was irrelevant, Mr Lemon did not give evidence. Had he given evidence, I have little doubt that he would have said, and truly said, that he had no intention to shock Christian believers but that he published the poem not to offend Christians but to comfort practising homosexuals by encouraging them to feel that there was room for them in the Christian religion. I am prepared to assume the honesty and sincerity of his motives.
The actus reus of the offence of blasphemy consists of the publication of words spoken or written. In the 17th century words challenging or questioning the doctrines of the established church were regarded as blasphemy: for 'Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law', as Hale CJ put it in R v Taylor. His view was accepted in 1729 in R v Woolston, though Raymond CJ did add : "we do not meddle with any differences in opinion" and "we interpose only when the very root of Christianity is struck at".
Nevertheless in almost all the reported cases (including Taylor and Woolston) the words complained of were scurrilous, insulting or offensive; indeed Keble ((1676) 3 Keb 607; cf 1 Vent 293) reports Hale CJ as saying expressly that 'contumelious reproaches of the established religion are punishable here'. And in one famous case, that of R v Shipley, in which there was no element of scurrility, the defendant was ultimately acquitted.
The watershed between the old and the modern law comes with the cases of R v Hetherington and R v Ramsay and Foote. Lord Denman CJ's summing-up in Hetherington's case contains the remarkable passage quoted by the Court of Appeal in this case. Its importance is such that I make no apology for quoting it again:
"Now, gentlemen, upon the question whether it is blasphemous or not I have this general observation to make, which I have often heard from Lord Tenterden in cases of this description, namely, that the question is not altogether a matter of opinion, but that it must be, in a great degree, a question as to the tone, and style, and spirit, in which such enquiries are conducted. 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; and I have heard that great judge declare, that even discussions upon 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. With that general observation, I leave the question of libel to you. Is it, or is it not, a blasphemous libel which the defendant appears to have published in his shop?".
In R v Ramsay and Foote (15 Cox CC 231 at 232) Lord Coleridge CJ finally dispelled any further possibility of a mere denial of the truth of the Christian religion being treated as a blasphemous libel. The 'attack' on Christianity or the Scriptures must be, he directed the jury, 'calculated to outrage the feelings of the general body of the community'.
Since Ramsay and Foote's case, the modern law has been settled and in 1917 received the accolade of this House's approval. "What the law censures or resists is not the mere expression of anti-Christian opinion", said Lord Sumner in Bowman v Secular Society Ltd ( AC 406 at 460, [1916(17] All ER Rep 1 at 28). The words must constitute, as it is put by Odgers on Libel and Slander (6th Edn (1929), p 404), an interference with our religious feelings, creating a sense of insult and outrage 'by wanton and unnecessary profanity'.
This is an appropriate moment to mention two points made on behalf of the appellants, albeit in the context of the intention to be proved. It was said that to constitute a blasphemous libel the words must contain an attack (emphasis supplied) on religion and must tend to provoke a breach of the peace, and that the accused must so intend. The plausibility of the first point derives from the undoubted fact that, as a matter of history, most of the reported cases are of attacks on the doctrines, practice or beliefs of the Christian religion. Since Hetherington's case it has been clear, however, that the attack is irrelevant: what does matter is the manner in which 'the feelings of the general body of the community' have been treated. If the words are an outrage on such feelings, the opinion or argument they are used to advance or destroy is of no moment. In the present case, had the argument for acceptance and welcome of homosexuals within the loving fold of the Christian faith been advanced 'in a sober and temperate style', there could have been no criminal offence committed. But the jury (with every justification) rejected this view of the poem and drawing.
The trial judge and the Court of Appeal effectually dealt with the second point. I would only add that it is a jejune exercise to speculate whether an outraged Christian would feel provoked by the words and illustration in this case to commit a breach of peace. I hope, and happen to believe, that most, true to their Christian principles, would not allow themselves to be so provoked. The true test is whether the words are calculated to outrage and insult the Christian's religious feelings; and in the modern law the phrase 'a tendency to cause a breach of peace' is really a reference to that test....
What, then, is the mens rea required by law to constitute the crime? No one has suggested that blasphemy is a crime of strict liability. The issue is as to the nature of the intention which has to be proved. As Eveleigh LJ ( 3 All ER 175 at 180,  QB 10 at 16) is reported to have put it in argument in this case, must the appellants have had an intention to offend in the manner complained of, or is it enough that he or they intended to publish that which offends? Bowman's case throws no light on the point. The history of the law is obscure and confused. The point is, therefore, open for your Lordships' decision as a matter of principle. And in deciding the point your Lordships are not saying what the law was in the past or ought to be in the future but what is required of it in the conditions of today's society. As Lord Sumner said in Bowman's case ( AC 406 at 467,  All ER Rep 1 at 32):
"The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed".
....The issue is, therefore, one of legal policy in the society of today.....It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage on the religious feelings of his fellow citizens. This is no way forward for a successful plural society.....The character of the words published matters, but not the motive of the author or publisher.....