I. The circumstances of the case
7. The applicant, Mr Nigel Wingrove, is a film director. He was born in
1957 and resides in London.
8. Mr Wingrove wrote the shooting script for, and directed the making
of, a video work entitled Visions of Ecstasy. Its running time is approximately 18
minutes, and it contains no dialogue, only music and moving images. According to the
applicant, the idea for the film was derived from the life and writings of St Teresa of
Avila, the sixteenth-century Carmelite nun and founder of many convents, who experienced
powerful ecstatic visions of Jesus Christ.
9. The action of the film centres upon a youthful actress dressed as a
nun and intended to represent St Teresa. It begins with the nun, dressed loosely in a
black habit, stabbing her own hand with a large nail and spreading her blood over her
naked breasts and clothing. In her writhing, she spills a chalice of communion wine and
proceeds to lick it up from the ground. She loses consciousness. This sequence takes up
approximately half of the running time of the video. The second part shows St Teresa
dressed in a white habit standing with her arms held above her head by a white cord which
is suspended from above and tied around her wrists. The near-naked form of a second
female, said to represent St Teresa's psyche, slowly crawls her way along the ground
towards her. Upon reaching St Teresa's feet, the psyche begins to caress her feet and
legs, then her midriff, then her breasts, and finally exchanges passionate kisses with
her. Throughout this sequence, St Teresa appears to be writhing in exquisite erotic
sensation. This sequence is intercut at frequent intervals with a second sequence in which
one sees the body of Christ, fastened to the cross which is lying upon the ground.
St Teresa first kisses the stigmata of his feet before moving up his body and kissing
or licking the gaping wound in his right side. Then she sits astride him, seemingly naked
under her habit, all the while moving in a motion reflecting intense erotic arousal, and
kisses his lips. For a few seconds, it appears that he responds to her kisses. This action
is intercut with the passionate kisses of the psyche already described. Finally,
St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in
hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers,
whereupon the video ends.
10. Apart from the cast list which appears on the screen for a few
seconds, the viewer has no means of knowing from the film itself that the person dressed
as a nun in the video is intended to be St Teresa or that the other woman who appears
is intended to be her psyche. No attempt is made in the video to explain its historical
background.
11. Visions of Ecstasy was submitted to the British Board of Film
Classification ("the Board"), being the authority designated by the Home
Secretary under section 4(1) of the Video Recordings Act 1984 ("the 1984 Act" -
see paragraph 24 below) as
"the authority responsible for making arrangements
(a) for determining, for the purposes of [the] Act whether or not video
works are suitable for classification certificates to be issued in respect of them, having
special regard to the likelihood of video works in respect of which such certificates have
been issued being viewed in the home,
(b) in the case of works which are determined in accordance with the
arrangements to be so suitable
(i) for making such other determinations as are required for the issue
of classification certificates, and
(ii) for issuing such certificates ...
12. The applicant submitted the video to the Board in order that it
might lawfully be sold, hired out or otherwise supplied to the general public or a section
thereof.
13. The Board rejected the application for a classification certificate
on 18 September 1989 in the following terms:
"Further to your application for a classification certificate ...,
you are already aware that under the Video Recordings Act 1984 the Board must determine
first of all whether or not a video work is suitable for such a certificate to be issued
to it, having special regard to the likelihood of video works being viewed in the home. In
making this judgment, the Board must have regard to the Home Secretary's Letter of
Designation in which we are enjoined to 'continue to seek to avoid classifying works which
are obscene within the meaning of the Obscene Publications Acts 1959 and 1964 or which
infringe other provisions of the criminal law.'
Amongst these provisions is the criminal law of blasphemy, as tested
recently in the House of Lords in R. v. Lemon (1979), commonly known as the 'Gay
News' case. The definition of blasphemy cited therein is 'any contemptuous, reviling,
scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible ... . It is not
blasphemous to speak or publish opinions hostile to the Christian religion' if the
publication is 'decent and temperate'. The question is not one of the matter
expressed, but of its manner, i.e. 'the tone, style and spirit', in which it is
presented.
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.
To summarise, it is not the case that the sexual imagery in VISIONS OF
ECSTASY lies beyond the parameters of the '18' category; it is simply that for a major
proportion of the work's duration that sexual imagery is focused on the figure of the
crucified Christ. If the male figure were not Christ, the problem would not arise. Cuts of
a fairly radical nature in the overt expressions of sexuality between St Teresa and
the Christ figure might be practicable, but I understand that you do not wish to attempt
this course of action. In consequence, we have concluded that it would not be suitable for
a classification certificate to be issued to this video work."
14. The applicant appealed against the Board's determination to the
Video Appeals Committee ("the VAC" - see paragraph 25 below), established
pursuant to section 4(3) of the 1984 Act. His Notice of Appeal, prepared by his legal
representatives at the time, contained the following grounds:
"i) that the Board was wrong to conclude that the
video infringes the criminal law of blasphemy, and that a reasonable jury properly
directed would so find.
ii) in particular, the Appellant will contend that upon a
proper understanding of the serious nature of the video as an artistic and imaginative
interpretation of the 'ecstasy' or 'rapture' of the sixteenth century Carmelite nun, St
Teresa of Avila, it would not be taken by a reasonable person as contemptuous, reviling,
scurrilous or ludicrous or otherwise disparaging in relation to God, Jesus Christ or the
Bible. The appeal will raise the question of mixed fact and law, namely whether
publication of the video, even to a restricted degree, would contravene the existing
criminal law of blasphemy."
15. The Board submitted a formal reply to the VAC explaining its
decision in relation to its functions under section 4 of the 1984 Act:
"The Act does not expressly set out the principles to be applied by
the authority in determining whether or not a video work is suitable for a classification
certificate to be issued in respect of it. In these circumstances, the Board has exercised
its discretion to formulate principles for classifying video works in a manner which it
believes to be both reasonable and suited to carrying out the broad objectives of the Act.
Amongst these principles, the Board has concluded that an overriding test of suitability
for classification is the determination that the video work in question does not infringe
the criminal law. In formulating and applying this principle, the Board has consistently
had regard to the Home Secretary's Letter of Designation under the Video Recordings Act
...
The Board has concluded on the advice of leading Counsel that the video
work in question infringes the criminal law of blasphemy and that a reasonable jury
properly directed on the law would convict accordingly. The Board submits and is advised
that in Britain the offence of blasphemy is committed if a video work treats a religious
subject (in particular God, Jesus Christ or the Bible) in such a manner as to be
calculated (that is, bound, not intended) to outrage those who have an understanding of,
sympathy towards and support for the Christian story and ethic, because of the
contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and spirit in which
the subject is presented.
The video work under appeal purports to depict the erotic fantasies of a
character described in the credits as St Teresa of Avila. The 14-minute second
section of the video work portrays 'St Teresa' having an erotic fantasy involving the
crucified figure of Christ, and also a Lesbian erotic fantasy involving the 'Psyche of
St Teresa'. No attempt is made to place what is shown in any historical, religious or
dramatic context: the figures of St Teresa and her psyche are both clearly modern in
appearance and the erotic images are accompanied by a rock music backing. The work
contains no
dialogue or evidence of an interest in exploring the psychology or even
the sexuality of the character purporting to be St Teresa of Avila. Instead, this
character and her supposed fantasies about lesbianism and the body and blood of Christ are
presented as the occasion for a series of erotic images of a kind familiar from
'soft-core' pornography.
In support of its contentions, the Board refers to an interview given by
the appellant and published in 'Midweek' magazine on 14 September 1989. In this interview,
the appellant attempts to draw a distinction between pornography and 'erotica', denying
that the video work in question is pornographic but stating that 'all my own work is
actually erotica.' Further on, the interviewer comments:
'In many ways, though, Visions calls upon the standard lexicon of
lust found in down market porn: nuns, lesbianism, women tied up ("GAY NUNS IN
BONDAGE" could have been an alternative title in fact). Nigel Wingrove flashes a
wicked grin. 'That's right, and I'm not denying it. I don't know what it is about nuns,
it's the same sort of thing as white stocking tops I suppose.' So why does he not consider
Visions to be pornography, or at least soft porn? 'I hope it is gentler, subtler
than that. I suppose most people think pornography shows the sex act, and this doesn't.'
It is clear from the Appellant's own admissions that, whether or not the
video work can rightly be described as pornographic, it is solely erotic in content, and
it focuses this erotic imagery for much of its duration on the body and blood of Christ,
who is even shown to respond to the sexual attentions of the principal character.
Moreover, the manner in which such imagery is treated places the focus of the work less on
the erotic feelings of the character than on those of the audience, which is the primary
function of pornography whether or not it shows the sex act explicitly. Because there is
no attempt, in the Board's view, to explore the meaning of the imagery beyond engaging the
viewer in a voyeuristic erotic experience, the Board considers that the public
distribution of such a video work would outrage and insult the feelings of believing
Christians. ...
The Board ... submits that the appeal should be dismissed and its
determination upheld."
16. The applicant then made further representations to the VAC, stating
inter
alia:
"The definition of the offence of blasphemy set out in ... the
reply is too wide, being significantly wider than the test approved in the only modern
authority - see Lemon & Gay News Ltd v. Whitehouse (1979) AC 617, per Lord
Scarman at p. 665. For example, there is no uniform law of blasphemy in Britain; the last
recorded prosecution for blasphemy under the law of Scotland was in 1843 - see
Thos
Paterson (1843) I Brown 629. Nor is any religious subject protected - the
reviling matter must be in relation to God, Jesus Christ or the Bible, or the formularies
of the Church of England as by law established.
In the Appellant's contention, these limitations are of the utmost
significance in this case since the video is not concerned with anything which God or
Jesus Christ did, or thought or might have approved of. It is about the erotic visions and
imaginings of a 16th Century Carmelite nun - namely St Teresa of Avila. It is quite
plain that the Christ figure exists in her fantasy as the Board expressly accepts
... . The scurrilous and/or erotic treatment of religious subject matter has received
the Board's classification without attempted prosecution in recent years, eg Monty
Python's 'Life of Brian' and Mr. Scorsese's 'Last Temptation of Christ'.
... The Board argues that the video is purely erotic or 'soft-core'
pornographic, without historical, religious, dramatic or other artistic merit. The
implication is that, had it possessed such merit the Board's decision might very well have
been otherwise. The Appellant will seek to argue and call evidence to the effect that the
video work is a serious treatment of the subject of the ecstatic raptures of
St Teresa (well chronicled in her own works and those of commentators) from a
twentieth century point of view.
The so-called 'rock music backing' was in fact specially commissioned
from the respected composer Steven Severin, after discussion of the Director's desired
artistic and emotional impact. The Board has based its decision upon the narrowest, most
disparaging, critical appreciation of the work. The Appellant will contend that a very
much more favourable assessment of his aims and achievement in making 'Visions of Ecstasy'
is, at the very least, tenable and that the Board ought not to refuse a certificate on a
mere matter of interpretation.
The Appellant takes objection to the Board's quotation ... of comments
attributed to him from an article by one Rob Ryan published in 'Midweek' magazine 14th
September 1989. The remarks are pure hearsay so far as the Board is concerned. That aside,
the piece quoted is in large part the comments of
the author of the article. An entirely misleading impression of what the
Appellant said to the author is conveyed by the interpolation of the words attributed to
him, and by taking this passage out of context.
Above all, the Appellant disputes the key assertion by the Board that
the video work is solely erotic in content."
17. The appeal was heard by a five-member Panel of the VAC ("the
Panel") on 6 and 7 December 1989; oral and affidavit evidence was submitted. By a
majority of three to two, a written decision rejecting the appeal was given on 23 December
1989. The Panel also considered itself bound by the criteria set out in the designation
notice (see paragraph 24 below). It had difficulty, however, in ascertaining and applying
the present law of blasphemy. It commented as follows:
"The authorities on this Common Law offence were reviewed by the
House of Lords in the case of Lemon and Gay News Ltd v. Whitehouse which concerned a
magazine called 'Gay News', the readership of which consisted mainly of homosexuals
although it was on sale to the general public at some bookstalls. One edition contained a
poem entitled 'The Love that Dares to Speak its Name' accompanied by a drawing
illustrating its subject matter.
In his judgment Lord Scarman said that it was unnecessary to speculate
whether an outraged Christian would feel provoked by the words and illustration to commit
a breach of the peace, the true test being whether the words are calculated to outrage and
insult the Christian's religious feelings, the material in question being contemptuous,
reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible or
the formularies of the Church of England. It should perhaps be added that the word
'calculated' should be read in the dictionary sense of 'estimated' or 'likely' as it was
decided that intent (other than an intent to publish) is not an element in the offence.
In the same case Lord Diplock said that the material must be 'likely to
arouse a sense of outrage among those who believe in or respect the Christian faith'.
In the present case the Board's Director ... said in evidence that the
Board's view was that the video was 'contemptuous of the divinity of Christ'. He added
that although the Board's decision was based upon its view that the video is blasphemous
(blasphemy being an offence which relates only to the Christian religion), it would take
just the same stance if it were asked to grant a Certificate to a video which, for
instance, was contemptuous of Mohammed or Buddha."
18. The Panel went on to review the content of the video and accepted
that the applicant had in mind St Teresa, a nun, "who is known to have had
ecstatic visions of Christ although, incidentally, these did not start until she was 39
years of age - in marked contrast to the obvious youthfulness of the actress who plays the
part".
19. The Panel reached the following conclusion:
"From the writings of St Teresa herself, and the subsequent
writings of others, there seems no reason to doubt that some of her visions were of seeing
the glorified body of Christ and being shown his wounds but, even so, it seems clear that
Mr Wingrove has taken considerable artistic licence with his subject.
Apart from the age discrepancy - a comparatively minor matter - we
were made aware of nothing which would suggest that Teresa ever did anything to injure her
hand or that any element of lesbianism ever entered into her visions. More importantly,
there seems nothing to suggest that Teresa, in her visions, ever saw herself as being in
any bodily contact with the glorified Christ. As one author, Mr. Stephen Clissold, puts it
'Teresa experienced ecstasy as a form of prayer in which she herself played almost no
part'.
So, in view of the extent of the artistic licence, we think it would be
reasonable to look upon the video as centring upon any nun of any century who, like many
others down the ages, had ecstatic visions.
There is also another reason for taking this stance: unless the viewer
happens to read the cast list which appears on the screen for a few seconds, he or she has
no means of knowing that the nun is supposed to be St Teresa, nor that the figure of
the second woman is supposed to be her Psyche. And he or she in any event may well be
unaware that Teresa was a real-life nun who had ecstatic visions.
It is true that Mr Wingrove says that it is intended that the sleeve or
jacket for the video will provide 'basic historical information to assist the viewer', but
we feel bound to regard this as irrelevant. Firstly because it by no means follows that
every viewer will read any such description; and secondly because the Board's and the
Appeal Panel's decision must be based solely upon the video itself, quite apart from the
fact that at the time of making a decision the sleeve or jacket is usually - as in the
present instance - not even in existence.
However, although we have thought it proper to dwell at some length with
the 'St Teresa' aspect, we are of the opinion that in practice, when considering
whether or not the video is blasphemous, it makes little or no difference whether one
looks upon the central character as being St Teresa or any other nun.
The appellant, in his written statement, lays stress upon the undoubted
fact that the whole of the second half consists of Teresa's vision or dream. Hence he says
the video says nothing about Christ, his figure being used only as a projection of
St Teresa's mind, nor was it his intention to make that figure an active participant
in any overt sexual act.
He goes on to say 'Rather the very mild responses are those of
St Teresa's conjecture: the kiss, hand clasp and ultimately the tears of Christ. To
show no response to a creation of her own mind would be nonsense; no woman (nor man) whose
deep love could cause such visions/ecstasies would imagine the object of that love coldly
to ignore their caresses'.
Although we quite appreciate the logic of this point of view, we have
reservations about the extent to which a vision or dream sequence can affect the question
of whether what is pictured or said is blasphemous.
It would, for instance, be possible to produce a film or video which was
most extremely contemptuous, reviling, scurrilous or ludicrous in relation to Christ, all
dressed up in the context of someone's imaginings. In such circumstances we find it hard
to envisage that, by such a simple device, it could reasonably be said that no offence had
been committed. If in our opinion the viewer, after making proper allowance for the scene
being in the form of a dream, nevertheless reasonably feels that it would cause a sense of
outrage and insult to a Christian's feelings, the offence would be established.
We should perhaps also deal, albeit briefly, with a further submission
made on behalf of the appellant, namely that the crime of blasphemy may extend only to the
written or spoken word and hence that a Court might rule that no film or video, and
perhaps nothing shown on television, could become the subject of such a charge. Suffice it
to say that in our view this is too unlikely to cause it to be taken into account by the
Board or a panel of the Appeals Committee when reaching a decision.
In the opinion of a majority of the Panel the video did not, as the
appellant claims, explore St Teresa's struggles against her visions but exploited a
devotion to Christ in purely carnal terms. Furthermore they considered that it lacked the
seriousness and depth of 'The Last Temptation of Christ' with which Counsel for the
appellant sought to compare it.
Indeed the majority took the view that the video's message was that the
nun was moved not by religious ecstasy but rather by sexual ecstasy, this ecstasy being of
a perverse kind - full of images of blood, sado-masochism, lesbianism (or perhaps
auto-erotism) and bondage. Although there was evidence of some element
of repressed sexuality in St Teresa's devotion to Christ, they did not consider that
this gave any ground for portraying her as taking the initiative in indulged sexuality.
They considered the over-all tone and spirit of the video to be indecent
and had little doubt that all the above factors, coupled with the motions of the nun
whilst astride the body of Christ and the response to her kisses and the intertwining of
the fingers would outrage the feelings of Christians, who would reasonably look upon it as
being contemptuous of the divinity of Christ.
In these circumstances the majority were satisfied that the video is
blasphemous, that a reasonable and properly directed jury would be likely to convict and
therefore that the Board was right to refuse to grant a Certificate. Hence this appeal is
accordingly dismissed.
It should perhaps be added that the minority on the Panel, whilst being
in no doubt that many people would find the video to be extremely distasteful, would have
allowed the appeal because in their view it is unlikely that a reasonable and properly
directed jury would convict."
20. As a result of the Board's determination, as upheld by the Panel,
the applicant would commit an offence under section 9 of the 1984 Act (see paragraph 23
below) if he were to supply the video in any manner, whether or not for reward.
21. The applicant received legal advice that his case was not suitable
for judicial review (see paragraphs 30 to 31 below) on the grounds that the formulation of
the law of blasphemy, as accepted by the Panel, was an "accurate statement of the
present law".
II. The situation of the video industry in the United Kingdom
22. According to statistics submitted by the Government, in 1994 there
were 21.5 million video recorders in the United Kingdom. Out of approximately 20.75
million households in the United Kingdom, 18 million contained at least one video
recorder.
There were approximately 15,000 video outlets in the United Kingdom.
Videos were available for hire in between 4,000 and 5,000 video rental shops. They
were also available for sale in 3,000 "high street" shops and in between
7,000 and 8,000 "secondary" outlets such as supermarkets, corner shops and
petrol stations.
In 1994 there were 194 million video rentals and 66 million video
purchases in the United Kingdom. It is estimated that a further 65 million illegal copies
("pirate videos") were distributed during that year.
III. Relevant domestic law
A. The regulation of video works
23. The Video Recordings Act 1984 ("the 1984 Act") regulates
the distribution of video works. Subject to certain exemptions, it is an offence under
section 9(1) of that Act for a person to supply or offer to supply a video work in respect
of which no classification certificate has been issued. Under section 7 there are three
categories of classification: works deemed suitable for general viewing (and to which a
parental guidance reference may be added); works for which the viewing is restricted to
people who have attained a specified age; and works which may only be supplied by licensed
sex shops. The Secretary of State for the Home Department may require that the content of
certain works be labelled (section 8). It is an offence to ignore such conditions, for
example by supplying someone under 18 years of age with an "18" classified
work (section 11).
24. Under section 4(1) of the 1984 Act the Secretary of State may by
notice designate any person or body as the authority for making arrangements for
determining whether or not video works are suitable for classification certificates to be
issued in respect of them (having special regard to the likelihood of certified video
works being viewed in the home). By a notice dated 26 July 1985 the British Board of Film
Classification ("the Board") was so designated. In the case of works which are
determined in accordance with the arrangements described above to be suitable for
classification certificates, the Board is responsible under section 4(1) for making
arrangements for the issue of certificates and making other determinations relating to
their use. The Secretary of State's notice enjoined the Board "to continue to seek to
avoid classifying works which are obscene within the meaning of the Obscene Publications
Acts 1959 and 1964 or which infringe other provisions of the criminal law".
25. Pursuant to section 4(3) of the 1984 Act arrangements were made for
the establishment of the Video Appeals Committee to determine appeals against decisions by
the Board.
B. The law of blasphemy
26. Blasphemy and blasphemous libel are common-law offences triable on
indictment and punishable by fine or imprisonment. Blasphemy consists in speaking and
blasphemous libel in otherwise publishing blasphemous matter. Libel involves a publication
in a permanent form, but that form may consist of moving pictures.
27. In the case of Whitehouse v. Gay News Ltd and Lemon [1979]
Appeal Cases, 617 at 665, which concerned the law of blasphemy in England, Lord Scarman
held that the modern law of blasphemy was correctly formulated in article 214 of Stephen's
Digest of the Criminal Law, 9th edition (1950). This states as follows:
"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 House of Lords in that case also decided that the mental element in
the offence (mens rea) did not depend upon the accused having an intent to
blaspheme. It was sufficient for the prosecution to prove that the publication had been
intentional and that the matter published was blasphemous.
The Gay News case, which had been brought by a private prosecutor, had
been the first prosecution for blasphemy since 1922.
28. As stated above, the law of blasphemy only protects the Christian
religion and, more specifically, the established Church of England. This was confirmed by
the Divisional Court in 1991. Ruling on an application for judicial review of a
magistrate's refusal to issue a summons for blasphemy against Salman Rushdie and the
publishers of "The Satanic Verses", Lord Watkins stated:
"We have no doubt that as the law now stands it does not extend to
religions other than Christianity...
We think it right to say that, were it open to us to extend the law to
cover religions other than Christianity, we should refrain from doing so. Considerations
of public policy are extremely difficult and complex. It would be virtually impossible by
judicial decision to set sufficiently clear limits to the offence, and other problems
involved are formidable." (R. v. Chief Metropolitan Stipendiary Magistrate, ex
parte Choudhury [1991] 1 All England Law Reports, 306 at 318)
29. On 4 July 1989 the then Minister of State at the Home Department, Mr
John Patten, had sent a letter to a number of influential British Muslims, in which he
stated inter alia that:
"Many Muslims have argued that the law of blasphemy should be
amended to take books such as ["The Satanic Verses"] outside the boundary
of what is legally acceptable. We have considered their arguments carefully and reached
the conclusion that it would be unwise for a variety of reasons to amend the law of
blasphemy, not the least the clear lack of agreement over whether the law should be
reformed or repealed.
an alteration in the law could lead to a rush of litigation which would
damage relations between faiths.
I hope you can appreciate how divisive and how damaging such litigation
might be, and how inappropriate our legal mechanisms are for dealing with matters of faith
and individual belief. Indeed, the Christian faith, no longer relies on it, preferring to
recognise that the strength of their own belief is the best armour against mockers and
blasphemers."
C. The availability of judicial review as a remedy
30. Decisions by public bodies which have consequences which affect some
person or body of persons are susceptible to challenge in the High Court on an application
for judicial review. Amongst the grounds on which such a challenge may be brought is that
the body in question misdirected itself on a point of law. The Video Appeals Committee is
such a public body because it is established pursuant to an Act of Parliament (see
paragraph 25 above). Furthermore, its decisions affect the rights of persons who make
video works because confirmation of a decision that a video work cannot receive a
classification certificate would mean that copies of that work could not be lawfully
supplied to members of the public.
31. On an application for judicial review a court would not normally
look at the merits of any decision made by such a body, except where the decision was so
unreasonable that no reasonable body, properly instructed, could have reached it. However,
where the decision is based on a point of law and it is alleged that the body has
misdirected itself on that point, the decision could be challenged by an application for
judicial review. In the case of C.C.S.U. v. Minister for the Civil Service [1984] 3
All England Law Reports at 950, Lord Diplock, in the House of Lords, classified under
three heads the grounds on which administrative action is subject to control by judicial
review. He called the first ground "illegality" and described it as follows:
"By 'illegality' as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates his decision-making power
and must give effect to it. Whether he has or not is par excellence a justiciable question
to be decided, in the event of a dispute, by those persons, the judges, by whom the
judicial power of the State is exercisable."
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
35. The applicant alleged a violation of his right to freedom of
expression, as guaranteed by Article 10 of the Convention, which, in so far as relevant,
provides:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary."
36. The refusal by the British Board of Film Classification to grant a
certificate for the applicant's video work Visions of Ecstasy, seen in conjunction
with the statutory provisions making it a criminal offence to distribute a video work
without this certificate (see paragraph 23 above), amounted to an interference by a
public authority with the applicant's right to impart ideas. This was common ground
between the participants in the proceedings.
To determine whether such an interference entails a violation of the
Convention, the Court must examine whether or not it was justified under Article 10 § 2
by reason of being a restriction "prescribed by law", which pursued an aim that
was legitimate under that provision and was "necessary in a democratic society".
A. Whether the interference was "prescribed by law"
37. The applicant considered that the law of blasphemy was so uncertain
that it was inordinately difficult to establish in advance whether in the eyes of a jury a
particular publication would constitute an offence. Moreover, it was practically
impossible to know what predictions an administrative body - the British Board of Film
Classification - would make as to the outcome of a hypothetical prosecution. In these
circumstances, the applicant could not reasonably be expected to foresee the result of the
Board's speculations. The requirement of foreseeability which flows from the expression
"prescribed by law" was therefore not fulfilled.
38. The Government contested this claim: it was a feature common to most
laws and legal systems that tribunals may reach different conclusions even when applying
the same law to the same facts. This did not necessarily make these laws inaccessible or
unforeseeable. Given the infinite variety of ways of publishing "contemptuous,
reviling, scurrilous, or ludicrous matter relating to God, Jesus Christ, or the
Bible" (see paragraph 27 above), it would not be appropriate for the law to seek to
define in detail which images would or would not be potentially blasphemous.
39. The Commission, noting that considerable legal advice was available
to the applicant, was of the view that he could reasonably have foreseen the restrictions
to which his video work was liable.
40. The Court reiterates that, according to its case-law, the relevant
national "law", which includes both statute and common law (see,
inter alia,
the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979,
Series A no. 30, p. 30, § 47), must be formulated with sufficient precision to enable
those concerned - if need be, with appropriate legal advice - to foresee, to a degree that
is reasonable in the circumstances, the consequences which a given action may entail. A
law that confers a discretion is not in itself inconsistent with this requirement,
provided that the scope of the discretion and the manner of its exercise are indicated
with sufficient clarity, having regard to the legitimate aim in question, to give the
individual adequate protection against arbitrary interference (see, for instance, the
Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no.
316-B, pp. 71-72, § 37, and the Goodwin v. the United Kingdom judgment of 27 March
1996, Reports 1996-..., p. ..., § 31).
41. It is observed that, in refusing a certificate for distribution of
the applicant's video on the basis that it infringed a provision of the criminal law of
blasphemy, the British Board of Film Classification acted within its powers under section
4(1) of the 1984 Act (see paragraph 24 above).
42. The Court recognises that the offence of blasphemy cannot by its
very nature lend itself to precise legal definition. National authorities must therefore
be afforded a degree of flexibility in assessing whether the facts of a particular case
fall within the accepted definition of the offence (see, mutatis mutandis, the
Tolstoy Miloslavsky judgment, cited above at paragraph 40, p. 73, § 41).
43. There appears to be no general uncertainty or disagreement between
those appearing before the Court as to the definition in English law of the offence of
blasphemy, as formulated by the House of Lords in the case of Whitehouse v. Gay News
Ltd and Lemon (see paragraph 27 above). Having seen for itself the content of the
video work, the Court is satisfied that the applicant could reasonably have foreseen with
appropriate legal advice that the film, particularly those scenes involving the crucified
figure of Christ, could fall within the scope of the offence of blasphemy.
The above conclusion is borne out by the applicant's decision not to
initiate proceedings for judicial review on the basis of counsel's advice that the panel's
formulation of the law of blasphemy represented an accurate statement of the law (see,
mutatis
mutandis, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992,
Series A no. 246, p. 27, § 60).
44. Against the foregoing background it cannot be said that the law in
question did not afford the applicant adequate protection against arbitrary interference.
The Court therefore concludes that the impugned restriction was "prescribed by
law".
B. Whether the interference pursued a legitimate aim
45. The applicant contested the Government's assertion that his video
work was refused a certificate for distribution in order to "protect the right of
citizens not to be offended in their religious feelings". In his submission, the
expression "rights of others" in the present context only refers to an actual,
positive right not to be offended. It does not include a hypothetical right held by some
Christians to avoid disturbance at the prospect of other people's viewing the video work
without being shocked.
In any event - the applicant further submitted - the restriction on the
film's distribution could not pursue a legitimate aim since it was based on a
discriminatory law, limited to the protection of Christians, and specifically, those of
the Anglican faith.
46. The Government referred to the case of Otto-Preminger-Institut v.
Austria (judgment of 20 September 1994, Series A no. 295, pp. 17-18, §§ 47-48)
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.
47. The Commission considered that the English law of blasphemy is
intended to suppress behaviour directed against objects of religious veneration that is
likely to cause justified indignation amongst believing Christians. It follows that the
application of this law in the present case was intended to protect the right of citizens
not to be insulted in their religious feelings.
48. The Court notes at the outset that, as stated by the Board, the aim
of the interference was to protect against the treatment of a religious subject in such a
manner "as to be calculated (that is, bound, not intended) to outrage those who have
an understanding of, sympathy towards and support for the Christian story and ethic,
because of the contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and
spirit in which the subject is presented" (see paragraph 15 above).
This is an aim which undoubtedly corresponds to that of the protection
of "the rights of others" within the meaning of paragraph 2 of Article 10.
It is also fully consonant with the aim of the protections afforded by Article 9 to
religious freedom.
49. Whether or not there was a real need for protection against exposure
to the film in question is a matter which must be addressed below when assessing the
"necessity" of the interference.
50. It is true that the English law of blasphemy only extends to the
Christian faith. Indeed the anomaly of this state of affairs in a multidenominational
society was recognised by the Divisional Court in R. v. Chief Magistrate, ex parte
Choudhury,
[1991] 1 All England Law Reports 206, p. 317 (see paragraph 28 above). However, it is not
for the European Court to rule in abstracto as to the compatibility of domestic law
with the Convention. The extent to which English law protects other beliefs is not in
issue before the Court which must confine its attention to the case before it (see, for
example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p.
18, § 33).
The uncontested fact that the law of blasphemy does not treat on an
equal footing the different religions practised in the United Kingdom does not detract
from the legitimacy of the aim pursued in the present context.
51. The refusal to grant a certificate for the distribution of
Visions
of Ecstasy consequently had a legitimate aim under Article 10 § 2.
C. Whether the interference was "necessary in a
democratic society"
52. The Court recalls 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 (see the
Otto-Preminger-Institut judgment, cited above at paragraph 46, pp. 18-19, §§ 47 and 49).
53. No restriction on freedom of expression, whether in the context of
religious beliefs or in any other, can be compatible with Article 10 unless it
satisfies, inter alia, the test of necessity as required by the second paragraph of
that Article. In examining whether restrictions to the rights and freedoms guaranteed by
the Convention can be considered "necessary in a democratic society" the Court
has, however, consistently held that the Contracting States enjoy a certain but not
unlimited margin of appreciation. It is, in any event, for the European Court to give a
final ruling on the restriction's compatibility with the Convention and it will do so by
assessing in the circumstances of a particular case, inter alia, whether the
interference corresponded to a "pressing social need" and whether it was
"proportionate to the legitimate aim pursued" (see, mutatis mutandis,
among many other authorities, the Goodwin judgment, mentioned above at paragraph 40, p.
..., § 40).
54. According to the applicant, there was no "pressing social
need" to ban a video work on the uncertain assumption that it would breach the law of
blasphemy; indeed, the overriding social need was to allow it to be distributed.
Furthermore, since adequate protection was already provided by a panoply of laws -
concerning, inter alia, obscenity, public order and disturbances to places of
religious worship - blasphemy laws, which are incompatible with the European idea of
freedom of expression, were also superfluous in practice. In any event, the complete
prohibition of a video work that contained no obscenity, no pornography and no element of
vilification of Christ was disproportionate to the aim pursued.
55. For the Commission, the fact that Visions of Ecstasy was a
short video work and not a feature film meant that its distribution would have been more
limited and less likely to attract publicity. The Commission came to the same conclusion
as the applicant.
56. The Government contended that the applicant's video work was clearly
a provocative and indecent portrayal of an object of religious veneration, that its
distribution would have been sufficiently public and widespread to cause offence and that
it amounted to an attack on the religious beliefs of Christians which was insulting and
offensive. In those circumstances, in refusing to grant a classification certificate for
the applicant's video work, the national authorities only acted within their margin of
appreciation.
57. The Court observes that the refusal to grant Visions of Ecstasy
a distribution certificate was intended to protect "the rights of others", and
more specifically to provide protection against seriously offensive attacks on matters
regarded as sacred by Christians (see paragraph 48 above). The laws to which the applicant
made reference (see paragraph 54 above) and which pursue related but distinct aims
are thus not relevant in this context.
As the observations filed by the intervenors (see paragraph 5
above) show, blasphemy legislation is still in force in various European countries. It is
true that the application of these laws has become increasingly rare and that several
States have recently repealed them altogether. In the United Kingdom only two prosecutions
concerning blasphemy have been brought in the last seventy years (see paragraph 27 above).
Strong arguments have been advanced in favour of the abolition of blasphemy laws, for
example, that such laws may discriminate against different faiths or denominations - as
put forward by the applicant - or that legal mechanisms are inadequate to deal with
matters of faith or individual belief - as recognised by the Minister of State for the
Home Department in his letter of 4 July 1989 (see paragraph 29 above). However, the fact
remains that there is as yet not sufficient common ground in the legal and social orders
of the Member States of the Council of Europe to conclude that a system whereby a State
can impose restrictions on the propagation of material on the basis that it is blasphemous
is, in itself, unnecessary in a democratic society and thus incompatible with the
Convention (see, mutatis mutandis, the Otto-Preminger-Institut, cited above at
paragraph 46, p. 19, § 49).
58. Whereas there is little scope under Article 10 § 2 of the
Convention for restrictions on political speech or on debate of questions of public
interest (see, mutatis mutandis, among many other authorities, the Lingens v.
Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 42; the Castells v. Spain
judgment of 23 April 1992, Series A no. 236, p. 23, § 43, and the Thorgeir Thorgeirson v.
Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 63), a wider margin of
appreciation is generally available to the Contracting States when regulating freedom of
expression in relation to matters liable to offend intimate personal convictions within
the sphere of morals or, especially, religion. Moreover, as in the field of morals, and
perhaps to an even greater degree, there is no uniform European conception of the
requirements of "the protection of the rights of others" in relation to attacks
on their religious convictions. What is likely to cause substantial offence to persons of
a particular religious persuasion will vary significantly from time to time and from place
to place, especially in an era characterised by an ever growing array of faiths and
denominations. By reason of their direct and continuous contact with the vital forces of
their countries, State authorities are in principle in a better position than the
international judge to give an opinion on the exact content of these requirements with
regard to the rights of others as well as on the "necessity" of a
"restriction" intended to protect from such material those whose deepest
feelings and convictions would be seriously offended (see, mutatis mutandis, the
Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133,
p. 22, § 35).
This does not of course exclude final European supervision. Such
supervision is all the more necessary given the breadth and open-endedness of the notion
of blasphemy and the risks of arbitrary or excessive interferences with freedom of
expression under the guise of action taken against allegedly blasphemous material. In this
regard the scope of the offence of blasphemy and the safeguards inherent in the
legislation are especially important. Moreover the fact that the present case involves
prior restraint calls for special scrutiny by the Court (see, mutatis mutandis, the
Observer and Guardian v. the United Kingdom judgment of 26 November
1991, Series A no. 216, p. 30, § 60).
59. The Court's task in this case is to determine whether the reasons
relied on by the national authorities to justify the measures interfering with the
applicant's freedom of expression are relevant and sufficient for the purposes of Article
10 § 2 of the Convention.
60. As regards the content of the law itself, the Court observes that
the English law of blasphemy does not prohibit the expression, in any form, of views
hostile to the Christian religion. Nor can it be said that opinions which are offensive to
Christians necessarily fall within its ambit. As the English courts have indicated (see
paragraph 27 above), it is the manner in which views are advocated rather than the
views themselves which the law seeks to control. The extent of insult to religious
feelings must be significant, as is clear from the use by the courts of the adjectives
"contemptuous", "reviling", "scurrilous",
"ludicrous" to depict material of a sufficient degree of offensiveness.
The high degree of profanation that must be attained constitutes, in
itself, a safeguard against arbitrariness. It is against this background that the asserted
justification under Article 10 § 2 in the decisions of the national authorities must
be considered.
61. Visions of Ecstasy portrays, inter alia, a female
character astride the recumbent body of the crucified Christ engaged in an act of an
overtly sexual nature (see paragraph 9 above). The national authorities, using powers that
are not themselves incompatible with the Convention (see paragraph 57 above),
considered that the manner in which such imagery was treated placed the focus of the work
"less on the erotic feelings of the character than on those of the audience, which is
the primary function of pornography" (see paragraph 15 above). They further held that
since no attempt was made in the film to explore the meaning of the imagery beyond
engaging the viewer in a "voyeuristic erotic experience", the public
distribution of such a video could outrage and insult the feelings of believing Christians
and constitute the criminal offence of blasphemy. This view was reached by both the Board
of Film Classification and the Video Appeals Committee following a careful consideration
of the arguments in defence of his work presented by the applicant in the course of two
sets of proceedings. Moreover, it was open to the applicant to challenge the decision of
the Appeals Committee in proceedings for judicial review (see paragraph 30 above).
Bearing in mind the safeguard of the high threshold of profanation
embodied in the definition of the offence of blasphemy under English law as well as the
State's margin of appreciation in this area (see paragraph 58 above), the reasons given to
justify the measures taken can be considered as both relevant and sufficient for the
purposes of Article 10 § 2. Furthermore, having viewed the film for itself, the Court is
satisfied that the decisions by the national authorities cannot be said to be arbitrary or
excessive.
62. It was submitted by both the applicant and the Delegate of the
Commission that a short experimental video work would reach a smaller audience than a
major feature film, such as the one at issue in the Otto-Preminger-Institut case (cited
above at paragraph 46). The risk that any Christian would unwittingly view the video
was therefore substantially reduced and so was the need to impose restrictions on its
distribution. Furthermore, this risk could have been reduced further by restricting the
distribution of the film to licensed sex shops (see paragraph 23 above). Since the film
would have been dispensed in video boxes which would have included a description of its
content, only consenting adults would ever have been confronted with it.
63. The Court notes, however, that it is in the nature of video works
that once they become available on the market they can, in practice, be copied, lent,
rented, sold and viewed in different homes, thereby easily escaping any form of control by
the authorities.
In these circumstances, it was not unreasonable for the national
authorities, bearing in mind the development of the video industry in the United Kingdom
(see paragraph 22 above), to consider that the film could have reached a public to whom it
would have caused offence. The use of a box including a warning as to the film's content
(see paragraph 62 above) would have had only limited efficiency given the varied forms of
transmission of video works mentioned above. In any event, here too the national
authorities are in a better position than the European Court to make an assessment as to
the likely impact of such a video, taking into account the difficulties in protecting the
public.
64. It is true that the measures taken by the authorities amounted to a
complete ban on the film's distribution. However, this was an understandable consequence
of the opinion of the competent authorities that the distribution of the video would
infringe the criminal law and of the refusal of the applicant to amend or cut out the
objectionable sequences (see paragraph 13 above). Having reached the conclusion that they
did as to the blasphemous content of the film it cannot be said that the authorities
overstepped their margin of appreciation.
D. Conclusion
65. Against the foregoing background the national authorities were
entitled to consider that the impugned measure was justified as being necessary in a
democratic society within the meaning of paragraph 2 of Article 10. There has therefore
been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no breach of
Article 10 of the Convention.
