John Corway v Independent Newspapers (Ireland) Ltd and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Barrington J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] JILL-SC 073001
• Docket Number: 322/96,[H.C. 1996 No. 26 M.C.A.; S.C. Nos. 322 & 345 of
• Date: 01 January 2000

[1999] JILL-SC 073001

THE SUPREME COURT

Hamilton C.J.

Barrington J.

Murphy J.

Lynch J.

Barron J.

322/96

345/96

John Corway v Independent Newspapers (Ireland) Ltd & Ors.

IN THE MATTER OF THE DEFAMATION ACT, 1961

and

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 8 OF THE SAID ACT

JOHN CORWAY

Applicant

and

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED INDEPENDENT NEWSPAPERS PLC

and

AENGUS FANNING

Respondents

Abstract:

Constitutional law - Defamation - Libel - Religion - Offence of blasphemy - Media and publishing - Freedom of speech - Whether sufficient evidence of necessary actus reus or mens rea to ground complaint - Defamation Act, 1961 (No 40) - Censorship of Films Act, 1923 (No 23).

The applicant sought leave to bring an action for blasphemy against the respondents. Leave to bring such an action was refused by the High Court and the applicant appealed. The applicant claimed that a cartoon published by the respondents offended against the sacraments of the Catholic Church. Barrington J, delivering judgment, held that in the absence of any legislative definition of the constitutional offence of blasphemy, it was impossible to say of what the offence of blasphemy consisted of. The cartoon may indeed have been in very bad taste. However the court was convinced that no insult to the blessed sacrament was intended and that no jury could reasonably conclude that such insult existed or was intended to exist. The appeal would be dismissed.

1 JUDGMENT of the Court delivered on the 30th day of July, 1999, by Barrington J.

2 This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish Law.

3 The appeal is against the Judgment and Order of Geoghegan J., delivered and made herein on the 23rd day of October, 1996, whereby he refused the Applicant leave to institute a criminal prosecution for blasphemy against the Respondents pursuant to the provisions of Section 8 of the Defamation Act, 1961.

4 Section 8 of the Defamation Act, 1961 reads as follows:-

"No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application".

FACTS.

5 The Applicant is a carpenter and resides at Harolds Cross, Dublin.

6 The first and second Respondents are the proprietors, and the third Respondent the Editor, of the "Sunday Independent" which is a weekly newspaper with a large circulation in Ireland.

7 On the 26th November, 1995 the Sunday Independent, in the wake of the divorce referendum, carried an article, by Dr. Conor Cruise-O'Brien, on the implications of that referendum. Associated with the article was a cartoon which depicted on the right a plump and comic caricature of a Priest. The Priest was holding a host in his right hand and a chalice in his left hand. He appears to be offering the host to three figures on the left hand side of the cartoon. The three figures are the prominent politicians Mr. Prionsias de Rossa, Mr. Ruari Quinn and Mr. John Bruton. But they are turning away and appear to be waving goodbye. At the top of the cartoon are printed the words "Hello progress - bye bye Father" followed by a question mark.

8 The words at the top of the cartoon are clearly meant to be a play upon a phrase used, during the referendum campaign, by some of the campaigners against divorce. That is to say "Hello divorce - bye bye daddy".

9 The applicant maintains that the cartoon picture and caption appear calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the Eucharist and its administration as objects of scorn and derision.

10 He continues:-

"As one professing and endeavouring to practise the Christian religion through membership of the Roman Catholic Church I have suffered offence and outrage by reason of the insult, ridicule and contempt shown towards the sacrament of the Eucharist as a result of the publication of the matter complained of herein and I am aware of other persons having also so suffered. It is intended that the proposed charge of blasphemous libel shall refer in particular to the cartoon and captions hereinbefore exhibited".

11 The Applicant says that he has been advised by Counsel and Solicitor and believes that the composition, printing and publication of the matter complained of could be held to constitute offences to which the provisions of Section 13.1 of the Defamation Act, 1961, will apply and that he has also been advised and believes that the subject matter of the application herein is such that there is a clear prima facie case for the Respondents and each of them to answer in the event of the matter coming before the Criminal Court.

12 Section 13.1 of the Defamation Act, 1961, provides as follows:-

"Every person who composes, prints or publishes any blasphemous... libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years".

13 The basic reason for Mr. Justice Geoghegan's decision was that he did not believe that the facts complained of amounted to blasphemy. In other words he did not believe that there was any actus reus. But he said that had he believed that there was sufficient evidence of an actus reus he would have regarded the act of publishing as being evidence for the purpose of establishing mens rea and would not have required evidence of a specific intention to blaspheme.

CONSTITUTIONAL PROVISION.

14 The reference to blasphemy in the Constitution occurs in Article 40.6 paragraph 1 sub-paragraph (i). Significantly it appears as a reservation on the

"right of the citizens to express freely their convictions and opinions".

15 Having guaranteed liberty for the exercise of that right the Constitution goes on to provide that:-

"The publication or utterance of blasphemous... matter is an offence which shall be punishable in accordance with law".

16 There is no definition of blasphemy in the Constitution nor is there any Act of the Oireachtas defining blasphemy. Mr. Murdoch in his dictionary of Irish Law (Topaz Publications Dublin 1988) defines blasphemy as follows:-

"The crime which consists of indecent and offensive attacks on Christianity, or the Scriptures, or sacred persons or objects calculated to outrage the feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law.... The mere denial of Christian teaching is not sufficient to constitute the offence".

17 There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commissions Consultation Paper on "The crime of libel".

BLASPHEMY AND COMMON LAW.

18 The Court would like to acknowledge its indebtedness to the researches of Counsel and of the Law Reform Commission on the history of the crime of blasphemy. We propose to consider first the evolution of the crime of blasphemy in England and then its evolution in Ireland. When the Common Law Courts took over jurisdiction in blasphemy from the Courts of Star Chamber and the Ecclesiastical Courts they seem to have started from the proposition that "Christianity is parcel of the laws of England". Whether this was because they believed that the common law was founded on Christianity or whether it was that Christianity, in its Protestant form, was the established religion in England, is not clear. If they made the distinction they probably took the latter view. Sir Matthew Hale is reported as having said in Taylor's Case ( 1 Ventris 293, 3 Keble 607) that

"Contumelious reproaches of God and of the religion established are punishable here.... the Christian religion is part of the law itself".

19 Originally any challenge to the fundamentals of Christianity was regarded as blasphemous but, from an early stage the law sought to make room for controversies between learned men on the finer points of religion. Towards the end of the 19th century in Ramsay and Foote, Lord Coleridge held that even the fundamentals of religion could be attacked "if the decencies of controversy are observed". [1883] 15 Cox C.C. 231. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd. in the year 1917 [1917] AC 406.

20 In Bowman's Case, the House of Lords had to decide whether a bequest to the Secular Society which was a company formed for the purpose of promoting the view that "human conduct should be based upon natural knowledge, and not upon supernatural belief" was invalid as being a bequest for an unlawful purpose constituting the offence of blasphemous libel. The case brought to a head the debate as to whether the mere questioning of the truth of Christianity could be blasphemy or whether it was necessary that the attack should be couched in scurrilous language. As Lord Parker put the matter (at pg. 466):-

"In my opinion to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace".

21 As long as the mere publication of an attack on Christianity amounted to blasphemy there was no necessity to consider the intentions of the author or the publisher because the mere words were regarded as revealing his intentions. This matter came to a head in Whitehouse...