The Government have also been considering the options for updating the law with regards to blasphemy. The update was dropped from the previous year's assault on liberties masquerading as an anti terrorism act but has been resurrected as a standalone consideration.
The House Of Lords Committee on Religious Offences published the following report in June 2003.
It seems to be a well reasoned and considered report. Perhaps a rather inconclusive work but that seems to be due to a lack of enthusiasm for any new blasphemy laws.
The Melon Farmers can perhaps help out the Government on this issue. It is clearly unfair and unacceptable that the law should protect only Christianity. On the other hand, if it is extended to all religions in its present form then it will patently be unworkable due to the sheer quantity of religious contradictory bunkum.
The Melon Farmers respect the beliefs of others and have no wish to offend. The Melon Farmers therefore suggest that the law of blasphemy may be retained and extended to all religions, but the scope should be limited to protect only those items of bunkum on which all the worlds religions concur.
The following are a few extracts from the report
Blasphemy: the Options
31. The law of blasphemy is described in detail in Appendix 3, including an assessment of the impact on it of the European Convention on Human Rights. In this chapter we examine the three main options that are available to Parliament:
(i) The common laws of blasphemy and blasphemous libel should be left as they stand;
(ii) They should be repealed without replacement (the view of the majority of the Law Commission in 1985);
(iii) They should be repealed but replaced with a new Statute, which would cover all religious faiths and beliefs and the rejection of religion. The objects of the protection would be the faiths, beliefs etc., not the people or groups who hold to them.
The "leave blasphemy alone" option
32. Reform of the law of blasphemy has not been seen as a priority by any Government since the Law Commission reported in 1985. The Home Office has declared that the present Home Secretary is personally in favour of its repeal but that a constructive debate first needs to be held. This report could be seen as the start of that debate.
33. Our witnesses have reflected the many views of what the law should now express and protect in the kind of society all respondents believe we should be. Some believe with great sincerity that the time has come for this country to abandon its religious heritage and become overtly secular; others with equal sincerity believe that the law should continue to defend the Christian character of our historic and constitutional roots; and a large number, including many among these two groups, wish to see the multi-faith nature of our society reflected clearly in our law. This diversity in the evidence we have received reinforces the view that the nature of our society is indeed a balance between the religious, the agnostic, and those of no religion, and that no consensus seems to exist as to the direction in which the balance should be changed, if indeed change it must.
34. The problem for parliament, however, stems not from the legal detail, but in the need to respect the deeply held views of a large number of the members of our society. Many think that the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society, of the values on which our relationships with one another depend, of our constitutional heritage, and of the nature of our national identity. Church of England opinion however includes those who would argue for the extension of the blasphemy law to embrace other Christian Churches and other faith communities. For the secular reformers, this can all too easily be characterised as nationalism, sentimentality, or even denial of other faiths. To see it only as the expression of such views would however be to misunderstand the underlying sense of identity of the British people, their innate respect for the values of a fair and just society resting on the Christian teachings, and the 'tissue of dynamic relationships'. which make up the British constitution.
35. In the recent census, 72% of the returns declared themselves to be part of the Christian tradition and identity. While not regular churchgoers, many still turn to the Christian churches at key times in the Christian year, and at important moments in their own life cycle, as well as occasions of local or national thanksgiving or tragedy. They are, in overwhelming majority, people who are tolerant of the practice of other religions and would wish to see that tolerance and protection reflected in our law and practice. They believe also in the hard-won heritage of free speech in our society. Many could feel a real sense of loss, which might easily be turned to anger, if the delicate balance of religious and secular, the 'sacred canopy' of our nation, were to be destroyed too roughly by legislation for which there has certainly been no public surge of demand, and for which the only justification would be either a complex legal argument about incompatibility with a European Convention, or a mindless move for the 'modernisation' of our ancient common law. It is worth noting, too, that most Muslim groups, while preferring that the law be extended to cover all faiths, are opposed to the repeal of the law of blasphemy. The Muslim Council of Britain, for example, said that "abolishing the law on blasphemy would mean so far as other faiths are concerned what we call negative equalisation"; one of the proforma letters we received said that "from a Muslim perspective, it is better for the law to protect at least one religious denomination from blasphemy, the Anglican Church, than no religion at all." The Board of Deputies of British Jews believes that to extend the law to other faiths would "raise inherent contradictions" and that it should be retained as it is.
36. The lesson from these considerations seems to be that Parliament should reflect on the strong arguments for leaving the law as it stands, even though its use might become increasingly uncommon, but also seek urgently for ways of expressing in law the need for protection for all faiths, all objects of religious veneration, and all followers of faith. Such a law would need to recognise the overriding need for tolerance as well as protection; and for freedom of speech, one of our most cherished national freedoms, as well as for freedom of religion.
Repeal without replacement
37. The Law Commission's starting point in its 1985 report was that "if there is no argument which may properly be regarded as sufficiently powerful to justify the derogation from freedom of expression which any offence of blasphemy must occasion, that offence, whether it be the present common law or some statutory replacement of it, should have no place in the criminal law" (paragraph 2.20). They proceeded to examine the arguments as they related to protection of religion and religious beliefs; protection of public order; protection of society; and protection of religious feelings. To these they added the "opening of the floodgates" issue and the suggestion that, by abolishing blasphemy without replacement, Parliament would be seen as, in some sense, bestowing approval of the conduct currently penalised by the common law.
38. Although much has changed since 1985, we note that the Law Commission's report on these matters is largely mirrored in the written and oral evidence which was presented to us in 2002. On the Law Commission's last two points, there are certainly vociferous groups who take their stand on the Ten Commandments (especially the third), the Queen's Title as Defender of the Faith, the Coronation Oath and the statement that the UK is a country whose national religion is Christianity. As for the floodgates, some think that "artists, comedians, the media and almost anyone" are only held in check by the current blasphemy law and, on its repeal, would immediately take the opportunity to issue blasphemous material. It is hard to judge how representative these views are, but they are probably a small minority of the population at large. Those who favour this option would contend that it is manifestly untrue that exhibitionists and attention seekers are just waiting for the common law offence of blasphemy to be repealed before they launch offensive attacks on religion. If that was their objective, they could already have targeted any other religion than Christianity with impunity, and if they attacked the Church of England they would have gained the extra publicity of a court case, with the possibility of a small fine.
39. Perhaps the most important deficiency in the existing common law is that it imposes a strict liability on a person who intends to publish a document, or make a verbal statement on a Christian topic, but who cannot know at that stage whether or not he will be found to have blasphemed. In so far as it is a strict liability, it offends current perceptions of fairness and runs contrary to what Lord Edmund-Davies said (in Whitehouse v. Lemon p 920) is the increasing tendency to move away from strict liability. He gave examples of instances where the courts have managed to evade such a situation both under statute and under common law.
40. The European Court of Human Rights recognises that a legitimate ground for restricting freedom of expression under Article 10.2 may, in certain circumstances, be the need to protect people against insult to religious feelings. That does not however exempt them from the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. At the same time, any restriction of freedom of speech has to be 'prescribed by law' and 'necessary in a democratic society' for a legitimate purpose. It is not so much a question of whether or not the criminal offence of blasphemy is 'prescribed by law', but the fact that its discriminatory features (in only protecting Christians) could (and probably would) lead to a conclusion that it is not proportionate to a pressing social need (an essential element if it is to be seen as necessary in a democratic society). Thus, insofar as the Wingrove case accepts that the law does not breach the European Convention, it was based on (i) a misunderstanding of the law, and (ii) the margin of appreciation which, as noted in paragraph 47 below, would not operate in the same way in the UK courts.
41. The law of blasphemy is discriminatory. It prevents (say) a Muslim from speaking about the sacred entities of Christianity in ways that would not be criminal if a Christian were to speak in similar terms about Islam. This violates Article 14 (prohibition of discrimination) taken together with Article 10, unless an objective and rational justification for the difference in treatment can be shown. Furthermore, failure to protect a Muslim against abuse of his religion might also violate Article 14 taken together with Article 9. Although the European Commission rejected an application based on Article 14 taken together with 9 in the "Satanic Verses" case, that predated the heightened respect for protection against abuse shown by the Court in Otto-Preminger Institut (para 48 below), and might not be decided in the same way today.
42. Of the non-Christian faiths, the Muslims, as already noted (paragraph 35) prefer to retain the law of blasphemy. Buddhists, Hindus and Sikhs, on the other hand, as well as some Christians, advocate its repeal, as do the secularists. The present Home Secretary has told Parliament: "I want to make it clear that there is no question of extending the blasphemy law to all other denominations and faiths. We do not want to do that; we want to find an accommodation and a sensitive way forward when few people believe that the current position can continue".
43. Several witnesses believed that recent unwillingness to invoke this criminal law may, at least in part, derive from the tolerance of Christian communities towards those who strongly question, criticise or insult their faith. Muslim witnesses, too, have said that their community would follow the course of tolerance so far as possible. It is however probably unwise to rely on a policy of inactivity on the part of the authorities or a commitment by the Attorney-General to take over any private prosecution (so as to offer no evidence) and to ensure that the CPS brought no prosecutions either. In the case of the former, the police were unwilling to intervene in the absence of a breach of public order when the poem "The Love That Dare Not Speak Its Name" (the cause of the "Gay News" case) was read recently outside St Martin's in the Fields. But a prosecution might follow later. Thus, sooner or later a prosecution will be attempted. It does not much matter whether this arises from a perceived affront to Christian tenets or an attempt to pursue a "Satanic Verses" type case. Even if a prosecution were successful, it is likely that it would eventually be overturned on appeal, either by the higher courts in the United Kingdom or by the European Court of Human Rights on one or more of the grounds that it is discriminatory, uncertain and a law of strict liability. If this analysis is correct, the repeal might as well occur now: that would at least save the expense of proceedings which led to Strasbourg.
Repeal and replacement by a broader-based Blasphemy Act
44. It is difficult to justify a law which protects the sacred entities of Christianity but does not offer similar protection to other faiths. This was the Law Commission's minority opinion. The Church of England would support the proposition of replacing the blasphemy law if there were to be a consensus among all faiths, but considers that to be unlikely. Some Muslims would like an extension of the blasphemy law to other faiths. The minority of the Law Commission team saw the drafting of such a measure, while avoiding unacceptable limitations upon freedom of expression, as a task of particular difficulty, but nonetheless achievable. They envisaged a filter, that is, the Director of Public Prosecution's (DPP) consent, so as to prevent private prosecutions and, particularly, litigation resulting from disputation within or between religious sects. They did not, it seems, see the DPP as the arbiter of freedom of expression. They envisaged the need for expert evidence in some cases. The new offence would penalise the publication (not verbal expression) of material proved to have been published with the "purpose" of causing outrage ("purpose" being designed to protect unintentional insult or outrage, which the blasphemy law does not). They envisaged a list of religions, variable by Ministerial order. This may be easier said than done.
45. In this area at least, there is a significant change since the Law Commission reported in 1985. Such a legal drafting exercise would now have to take full account of the Human Rights Act. For instance, the formulation of a proposed Bill submitted to the Committee by the Association of Muslim Lawyers ran into the problem that it defined the beliefs to be protected by reference to a deity but omitted to deal with non-theistic beliefs or those who reject religious belief. Separate legislation for them cannot be the answer, since the first Bill could not carry a Statement of Compatibility under s.19 of the Human Rights Act (if a Government Bill), whilst a Private Member's Bill would run into major difficulties at the Committee stage for the same reasons. However true it may be that the Humanists and Atheists are not under attack, they cannot be ignored. There will also be parallels in the future with doctrines such as Scientology, which has succeeded in some countries in establishing that it is a religion, whereas in others it has failed.
46. One advantage of any reformulation, however, may be that rights enshrined in Article 10 of the European Convention could be protected by borrowing the wording in section 12(4) of the Human Rights Act: "The Court must have particular regard to the importance of the Convention right to freedom of expression". Nevertheless, Parliament's task in selecting the religions, or beliefs rejecting religion, must be fraught with difficulty, as would be any amending Statutory Instrument.
47. One factor which may be seen as affecting a British court is the difference in jurisprudence between the Strasbourg court and tribunals within the UK. In a seminal case concerning the Scotland Act 1998, which came into force before the Human Rights Acts 1998, the Privy Council had to consider the constitutionality of a law which required a person to answer a question whether she had been the driver of the car on the particular occasion. The point concerned an interpretation of Article 6 of the European Convention about fair trial. This Convention does not prohibit a requirement to answer questions which would amount to self-incrimination, but the notion of fair trial may make this an implied right. Lord Steyn, in his judgement, dealt with "what deference may be accorded to the legislature?" He said: "Under the [ECHR] system the primary duty is placed on domestic courts to secure and protect Convention rights. The Function of the European Court of Human Rights is essential but supervisory. In that capacity it accords to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context allows it". He then referred to R v. DPP ex parte Kebilene  AC 326, and two articles in legal publications, where the quotation from the second said: "Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better able to perform these functions". This is one of the problems which must be faced in any future prosecution for blasphemy. The impact of Article 10.2 will be similar to its effect in an offence of hate crime, as to which see Chapter 8.
48. In relation to blasphemy, however, the question how this evolving domestic doctrine may affect the constraints imposed by Article 10.2 of the European Convention upon the limits, one way or another, of freedom of expression has still to be tested. In 1994 the Strasbourg court had to rule upon a prosecution under s.188 of the Austrian Penal Code, where the prosecutor argued that the film in question aroused justified indignation and disparaged an object of veneration of a church or religious community. The conviction was upheld on appeal. It then went to the European Court of Human Rights, which held that restricting freedom of expression was a legitimate aim for the protection of the rights of others under Article 10.2. As Professor Feldman says in his book "Civil Liberties and Human Rights" (Chapter 16): "this prevents the Court from exercising much control over the solutions adopted by a public authority faced by [these] kinds of arguments. Indeed, the Court's approach is potentially dangerous as it could sometimes serve simply to legitimate, rather than test rigorously, a regime of stringent censorship". But a British court would have to come to its own decision within stricter boundaries. The question would not, of course, arise if the common law offences were abolished. A replacement Act would have to be drafted so as to give effect to the principle set out in Otto-Preminger Institut, which is worth quoting at length:
"Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the state, notably in its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them. In the Kokkinakis judgement the Court held, in the context of Article 9, that a state may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with the respect for the freedom of thought, conscience and religion of others … The respect for the religious feelings of believers as guaranteed by Article 9 can legitimately be thought to have been violated by the provocative portrayal of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society. The Convention is to be read as a whole and therefore the interpretation and application of Article 10 in the present case must be in harmony with the logic of the Convention...".
49. The British Humanist Association has outlined an alternative route. This would focus on the use of language or behaviour that, in the judgement of a reasonable person, was in all the circumstances likely to stir up hatred of a group of persons characterised by their religion or belief, or to inhibit the exercise of their rights under Article 9 of the European Convention. There ought then to be a defence of justification. This seems to be a hybrid between blasphemy (at least in the Indian context—see para 51 below) and incitement. So far as the incitement element is concerned, the formulation does not appear to present technical problems any more complex than those they would face under, for example, the Obscene Publications Act 1959. Juries deal with these successfully, and benefit from a statutory formula (which a judge is not allowed to embellish by interpretative directions) capable of being used flexibly as society's attitude to moral issues of this sort changes or develops.
50. In their evidence to the Committee, the Home Office said that it does not advocate a definition of "religion"; it would leave it to the Courts. We feel that this evades the issue: laws that have religious implications should either define or at least describe what "religion" is. While the higher courts could be expected to deal with the issue, appeals occur on a haphazard basis and it could take years before the major faiths, let alone the minor or non-religious, received this sort of consideration. What appears to have been overlooked is the trial at first instance, before Magistrates or a jury. Formidable difficulties would be faced by the Clerk or the Crown Court judge in directing a correct approach to the decision on status of the religion, as well as the extent, beyond freedom of expression, of the alleged insult or vilification. What is more, the verdict would be based on an undisclosable (because by a jury) finding of fact so that, unless some error of law could be discerned in the summing up, the higher courts would have difficulty in giving the guidance which would evidently be desired of them.
51. At one stage in the Committee's deliberations, it seemed promising to examine the Indian Criminal Code (which has parallels in Sri Lanka). Both, of course, date from the Imperial past but are still in use. The attraction of the Indian Code lies, at least in part, in Lord Macaulay's sponsorship. There are three areas which merit attention: (i) Part XV, which sets out a catalogue of offences to do with maliciously outraging the religious feelings of any "class" of Indian citizens, through a variety of means; (ii) the use of this as one of the methods of suppressing publications which are held to have that effect (under ss.99A-D of the Criminal Procedure Code); and (iii) in connection with electoral campaigns which are founded on such religious divisiveness, on which there are numerous very recent judicial decisions.
52. It should not be forgotten that between the end of the First World War and the early 1930s a number of attempts were made in this country to replace the common law of blasphemy by some adaptation of the Indian Code. These received no support from the Home Office and came to nothing. The rationale underlying the Indian laws was neither antipathy to freedom of speech as such nor the protection of religious freedom, but the maintenance of public peace and tranquillity in a country where religious passions were considered to be easily aroused and inflamed. A distinguished Indian commentator (Soli Sorabjee, the Attorney-General) has recently written that the British did not want a religious riot on their hands and were not really concerned about the religious tenets of those who professed them. However, setting aside the culture gap, there seems little reason why the text should not form a starting point for a restatement of principles. After s.295A was added to the Indian Code in 1927, with its component of deliberate intent and malice, its provisions were tested against the constitutional guarantees of freedom of religious belief and of expression and were found to be compatible. Thus it might be hoped that a formulation could be found which would also comply with the European Convention. If there is nothing technically wrong with the law, the problem may be the manner of its enforcement. In India, the offences have been used to found actions to suppress writings on political grounds, which are always brought by the Executive. In the UK every safeguard is in place to prevent politically based prosecutions. Mr Sorabjee concludes: "experience shows that criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. Fundamentalist Christians, religious Muslims and devout Hindus would then seek to invoke the criminal machinery against each other's religion, tenets or practices. That is what is increasingly happening today in India. We need not more repressive laws but more free speech to combat bigotry and to promote tolerance".
53. The National Secular Society, in a detailed commentary on the Indian Laws, points out that there is a major difficulty in attempting to protect people's feelings as opposed to their beliefs. Beliefs are matters of fact, and were at one time reviewed by the courts under the Test Acts, which then required that undergraduates at Oxford and Cambridge had to be communicant members of the Church of England. Feelings, on the other hand, are subjective. "Given that religion itself is so difficult to define, then defining hurt to religious feelings is still more demanding".
CHAPTER 10: Conclusions
131. As we have already commented in Chapter 1, the Committee's appointment had its origins in the Anti-Terrorism, Crime and Security Act 2001, in particular parliament's decision not to agree to a proposed offence of incitement to religious hatred. Our deliberations have, however, gone much wider than the merits of such an offence, or even the proposals in the Religious Offences Bill to repeal a number of old common and statute laws. They have included consideration of the nature of religion in today's society and the changes in that society over the last half century, both in the numbers who follow other than the Christian faith, those who reject religious belief, and those whose religious faith is usually expressed privately. The census results show that Christianity, in its many forms, is still the faith followed by the large majority of the population. But memberships of other faiths constitute a significant minority, and it is beyond doubt that Britain's is now a multi-faith society. Intrinsic to our deliberation was consideration of the question of whether these changes to society have been reflected in the role played by religion in the formulation of morals and values and the way these continue to affect community life, and whether the transition to multi-faith was in effect a transformation to a secular society.
132. The constitution of the United Kingdom is rooted in faith—specifically the Christian faith exemplified by the established status of the Church of England. We did not however see it as our task, in discharging our remit to "consider" the law on religious offences, to challenge the constitution or question the Church's part in it, although there is little doubt that the pre-eminent role enjoyed by the established church is probably outdated. But our own researches, and the evidence we heard, reinforce a view that religious belief continues to be a significant component, or even determinant, of social values, and plays a major role in the lives of a large number of the population. The United Kingdom is not a secular state.
133. The question nevertheless arises as to whether the protections afforded by law to religions and their adherents continue to have relevance in the 21st century and, if they do, how they might be adapted to meet the interests of all faiths (and those of no faith), rather than discriminate in favour of some. We believe there should be a degree of protection of faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law.
134. That equality will be reinforced under civil law with the introduction in December 2003 of the Employment Equality (Religion or Belief) Regulations, which are drawn from European Council Directive 2000/78/EC. As this report demonstrates, the criminal law is less comprehensive. The law of blasphemy only provides protection for the Church of England, although members of other Christian Churches draw comfort from it. Race relations legislation has the effect of protecting Jews and Sikhs from incitement to religious hatred, but not Christians, Muslims (at 3%, the second largest faith community in the population) nor others, because they are not regarded as coming from a common ethnic origin. The rarely used Ecclesiastical Courts Jurisdiction Act 1860 can be invoked to provide protection for properly certified places of worship of all religions, but is archaic in its construction and carries minimal penalties that cannot be categorised as having deterrent value. Finally, section 39 of the Anti-Terrorism etc Act also provides for all religions, but provides a statutory aggravating factor in sentencing rather than an offence in itself.
135. The starting point for legislation may be the requirement on Government to enact legislation to implement the draft Council Framework Decision on Racism and Xenophobia, which would not be confined to incitement to hatred in the two areas so far selected: race and religion. It is impossible to forecast how this might be transplanted into UK law, but the occasion might be ripe to include incitement to hatred across the range of targets of hate crime, even beyond the list currently under debate in connection with the Decision, for example the gay community, asylum seekers or whoever incurs the opprobrium of some branches of public opinion.
136. Since this would take the form of primary legislation, the opportunity could be seized to take account of the other two matters which have preoccupied the Committee: that is, the two aspects whereby Parliamentary "statements" could be made about matters of faith itself as opposed to the protection of those who profess the faiths. What is to happen to the common law offences of blasphemy may not depend upon legislation but upon the contemporary climate, both social and legal, which could lead to a decision to take no action at all. Whether places of worship, of all faiths, need a modern protection in criminal law is something which has become increasingly marginal. Other offences cover the majority of incidents which are seen to be offensive, but there remains a modest area still only covered by the Ecclesiastical Courts Jurisdiction Act 1860. Evidently this Act is not obsolete.
137. We support the protection of everyone's right to freedom of thought, conscience and religion, and the freedom to manifest one's religion or beliefs, under Article 9 of the European Convention on Human Rights, and we consider that the ordinary law gives that protection. We agree however that there is a gap in the law as it stands. We have examined whether there needs to be any additional protection either for believers as a class, or for the objects connected with their beliefs. There is no consensus as to whether such protections should exist and, if so, the precise forms they should take, but we do agree that the civil and criminal law should afford the same protection to people of all faiths, and of none.
138. These are matters of profound concern in the community, or communities. There exists a series of subjects on which Parliament alone can reach decision: the debate will be intense. What the proceedings of the Select Committee have made clear is that it is perfectly possible to conduct this debate, among witnesses and members of all persuasions, with equanimity and understanding. There is recognition that the differences need to be resolved, and there is much good will on which to draw in so doing.
Submission from the British Board of Film Classification
I have been asked to provide your Committee with a brief note about past instances where the BBFC has had cause to intervene with video works on the basis of potentially blasphemous content. I hope the following may be useful.
The BBFC is the authority designated by Parliament under the Video Recordings Act 1984 to classify video works for distribution in the UK. In making a decision as to the suitability of a video work for classification the Board is required to consider, amongst other factors, whether or not the work in question is likely to be found illegal under UK law. Along with other relevant legislation (including the Obscene Publications Act, the Protection of Children Act, the Cinematograph Films (Animals) Act), blasphemy is one of the issues the Board assesses when making a classification decision. In fact since my arrival as Director of the board in January 1999 there have been no cases in which the Board has sought to intervene with a video work on these grounds. However, our records show that since the introduction of the Video Recordings Act in 1984, the Board has cut three works and rejected one on the grounds of potential blasphemy.
Cuts were made in the following cases:
1. In 1987 a cartoon video (The Big Bang) was cut by 10 seconds to remove a sequence in which an animated version of God appeared to be having sex and then uttered an expletive.
2. In 1988 a low budget horror film (Catacombs) received 12 seconds of cuts to remove a sequence in which a priest is punished for his gluttony by Christ. In the sequence removed by the Board, a statue of Christ came alive and stabbed the priest to death with a nail he had pulled from his ankle.
3. In 1990 an underground movie by cult American film maker John Waters (Multiple Maniacs) was cut by 4 minutes 53 seconds to remove an entire sequence set in a church in which a male transvestite buggered himself with a rosary. The shots of the transvestite were intercut with footage of Christ moving through the Stations of the Cross.
I enclose extracts from the relevant BBFC Annual Reports detailing these decisions.
Additionally, the Board refused in 1989 a video classification altogether for a 19 minute short film entitled Visions of Ecstasy. In this film, which was described by its maker as a meditation on the visions of St Teresa of Avila, there was a lengthy sequence in which a woman dressed as a nun (representing St Teresa) straddled the figure of Christ on the Cross. The woman was shown kissing His wounds, lips, face and body, and moving in a manner which indicated sexual intercourse.
In refusing the video a classification certificate, the BBFC's Director James Ferman commented to the distributor:
"The video work submitted by you depicts the mingling of religious ecstasy and sexual passion, a matter which may be of legitimate concern to the artist. It becomes subject to the law of blasphemy, however, if the manner of its presentation is bound to give rise to outrage at the unacceptable treatment of a sacred subject. Because the wounded body of the crucified Christ is presented solely as the focus of, and at certain moments a participant in, the erotic desire of St Teresa, with no attempt to explore the meaning of the imagery beyond engaging the viewer in an erotic experience, it is the Board's view, and that of its legal advisers, that a reasonable jury properly directed would find that the work infringes the criminal law of blasphemy."
At the time the BBFC sought an opinion from Richard Du Cann QC, who confirmed the Board's view that the work's treatment of its theme was "not suitable for classification on the grounds that it infringes the criminal law of blasphemy. The foundation for my view is that in my opinion a reasonable jury properly directed on the law would convict". The blasphemy law was understood by the BBFC at the time in the following terms, as expressed in the House of Lords decision in R v Lemon (1979):
"Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves."
The Board's decision was subsequently appealed against to the independent Video Appeals Committee. This Committee was constituted under Section 4(3) of the Video Recordings Act so that distributors could challenge what they regarded as unduly censorious decisions by the Board. In the case of Visions of Ecstasy, the Committee found in favour of the Board and the Appeal was therefore dismissed.
The film's maker and distributor then took the unusual step of appealing against the ban to the European Court of Human Rights. The court, however, decided that the reasons given for the ban by the Board and the Video Appeals Committee were relevant and sufficient and the decision was not "arbitrary or excessive". The Court noted in their judgement that:
"Freedom of expression constitutes one of the essential foundations of a democratic society. As paragraph 2 of Article 10 expressly recognises, however, the exercise of that freedom carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, may legitimately be included a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory".
The court therefore recognised that the refusal to grant Visions of Ecstasy a certificate was intended to protect the rights of others in line with the duty in Article 10. In concluding in favour of the BBFC, the Court drew in particular upon the precedent established by the case of Otto-Preminger-Institut v Austria (1994) "where the Court had accepted that the respect for the religious feelings of believers can move a State legitimately to restrict the publication of provocative portrayals of objects of religious veneration". The Otto-Preminger case involved a private body which operated a cinema in Innsbruck which was open only to limited membership. It wanted to show the film Council in Heaven, restricting it to members only aged 17 upwards. Its advertisements for the film made the offensive religious content apparent. The European Court, however, found the showing to be a public offence which infringed the "rights of others" under Article 10—even though it was accepted that Christians would be unlikely to choose to see the film.
As a result, Visions of Ecstasy remains banned from distribution in the UK on the grounds of blasphemy.