Courting Controversy

The evangelical group, Christian Voice recently failed in its bid to bring a private prosecution for the offence of blasphemous libel against the Director General of the BBC, Mark Thompson and the producer of the award winning musical Jerry Springer: the Opera, Jonathan Thoday.

As most readers will know, Jerry Springer: the Opera is a parody of the US talk show hosted by Jerry Springer. The musical portrays various biblical characters including Jesus, who is depicted as wearing nappies and at one point admits to Satan that he is "a little bit gay" and Eve, who is featured attempting to fondle Jesus' genitals. The production was presented at the National Theatre and in the West End before going on a national tour and was broadcast by the BBC in January 2005. Christian Voice claimed that the musical was "an offensive, spiteful, systematic mockery and wilful denigration of Christian belief" which "clearly crossed the blasphemy threshold". However in a landmark judgement, the High Court not only rejected the claim that Jerry Springer itself was blasphemous, but set out a series of legal arguments which make it hard to see how any future prosecution for blasphemy could succeed against a theatre producer or broadcaster.

The crime of blasphemous libel is an ancient offence and is very rarely invoked. The last prosecution took place in 1972 when Mary Whitehouse successfully sued Gay News for publishing a homo-erotic poem about Christ on the cross. There are two elements to the offence. Firstly there must be "contemptuous, reviling, scurrilous and/or ludicrous material" relating to God, Christ, the bible or the Church of England. Secondly the publication must be such that it threatens to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or being likely to cause civil strife. Significantly, the offence only applies to blasphemy against the Christian faith. This was confirmed in the early 1990s when a group of British Muslims unsuccessfully applied for Salman Rushdie to be prosecuted for blasphemous libel after the publication of his novel, The Satanic Verses.

Christian Voice's application to the Court was in fact dismissed on the basis that blasphemy prosecutions are prevented in respect of live theatrical performances by the Theatres Act 1968 and broadcasts are protected by identical provisions in the Broadcasting Act 1990. This is clearly a significant decision for theatre producers and broadcasters, although it does leave open the question of whether a prosecution could be brought in respect of other media, for example film. The High Court also considered whether Jerry Springer: the Opera was blasphemous in itself. Based on the facts of the case, it was held that it was not. Although some practising Christians may have found the musical offensive, it was held that it was clearly a satirical work and the object of its attack was the television chat show, not the Christian religion. Furthermore, the High Court emphasised that there was no evidence of the second element of the crime; the musical had been presented in theatres for over two years without any sign of it undermining society or occasioning civil unrest. Although there were some demonstrations and arrests outside BBC Television Centre on the day of the television broadcast, there had been little public reaction before this in relation to performances of the musical.

So what now for Britain's blasphemy laws? The High Court's emphasis on there having to be a danger of disorder in the community in order for the offence to be proven is important as it ensures that the crime of blasphemous libel remains compatible with provisions of the European Convention on Human Rights which protect the principle of freedom of expression and only permit interference with this where it is necessary to prevent civil disorder or protect the rights of others. This emphasis coupled with the need to balance the offence against the fundamental principle of freedom of expression means that successful blasphemy prosecutions in the future are now extremely unlikely. Many campaigners argue that the blasphemy laws are in any event outdated and ripe for repeal. In multi-faith Britain, it does seem absurd that this law excludes religions other than Christianity. In its application, Christian Voice drew comparisons with the furore which erupted in the British Sikh community in respect of the play Behtzi which included sexual offences being committed in a Sikh temple and stated that a producer would not dare to produce a satire on the prophet Mohammed and the religion of Islam. In actual fact, there is no equivalent legal protection for other religions.

Going forward, the Government's focus is on protecting people who might be the object of someone else's hatred because of their religion rather than protecting religion itself. This is evidenced by the Racial and Religious Hatred Act 2006 which came into force in October 2007. Although the new Act leaves the blasphemy laws intact, it creates a new offence of inciting hatred against a person on the grounds of their religion and does not penalise criticism of articles or symbols of faith or causing of offence.