Historically, all societies have had criminal offences which relate to religion. In the Christian West, the main religious criminal offences have been blasphemy (defamation of Christianity), heresy (expression of unacceptable religious views) and desecration (damage to, or destruction of, sacred objects and buildings). However, in Britain today the only remaining element of these old offences is the crime of blasphemy and all other offences which relate to religion are, in general, dealt with under the ordinary criminal law. For example, a burglar who breaks into a church and steals a chalice would be prosecuted for the crime of burglary and the fact that his offence also involved sacrilege of a church would not involve any separate charge. However, in addition to blasphemy, some old offences involving disorder in churches or cemeteries remain on the statute book and in 2001 a new category of religiously aggravated offences was created. An offence of stirring up religious hatred was created in the Racial and Religious Hatred Act 2006 and that offence is discussed in Chapter 8.
Blasphemy (technically called blasphemous libel) is a long-established offence in English common law, and in the law of many other countries. In England, for understandable historical reasons, the blasphemy law applies to protection of the Christian religion in its Anglican (Church of England) form and was defined in the following terms in article 214 of Stephen’s Digest of the Criminal Law (9th edn, 1950):
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 as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.
This definition was accepted by the House of Lords in the case of Whitehouse v Gay News Ltd and Lemon  2 WLR 281, which was the last prosecution for blasphemy in England. Being a common law offence, blasphemy is only triable on indictment, i.e. before a jury, in the Crown Court and the maximum penalty is imprisonment for life and/or a fine. In Bowman v Secular Society Ltd  AC 406 the House of Lords held that the gist of the crime of blasphemy was not the words that were used rather it was:
… their manner, their violence or ribaldry or, more fully stated, for their tendency to endanger the peace then and there, to deprave public morality generally, to shake the fabric of society, and to be a cause of civil strife.
Prosecutions for blasphemy have been rare in the twentieth century. In R v Gott  16 Cr. App. R 87 a publisher was successfully prosecuted for publishing a pamphlet that compared Jesus’ journey to Jerusalem with ‘a circus clown on a donkey’ but after that case there were no further prosecutions until 1977 and the case of Whitehouse v Gay News Ltd and Lemon  2 WLR 281. This was a private prosecution brought against the editor and publisher of the newspaper Gay News for publishing a homoerotic poem concerning Christ and the crucifixion. The Court of Appeal upheld the conviction but revoked the sentences of imprisonment on the editor, remarking that it did not consider it an appropriate case for a prison sentence.
In 1991 in Chief Metropolitan Stipendiary Magistrate ex p Choudhury  1 QB 429 an attempt was made to bring a private prosecution for blasphemy against the author Salman Rushdie following the publication of his book The Satanic Verses. It was argued in the case that the crime of blasphemy should be extended by the courts so as to cover all religions including Islam. The Court of Appeal, however, was not prepared to extend an offence for which there had only been two prosecutions in 70 years and which the Law Commission in 1985 had recommended should be abolished (Law Com 145) and the court also noted a real practical diffculty in extending blasphemy to cover every religion:
Since the only mental element in the offence is the intention to publish the words complained of, there would be a serious risk that the words might, unknown to the author, scandalise and outrage some sect or religion.
In Choudhury v UK  12 HRLJ 172 the European Commission of Human Rights did not accept a claim that because the blasphemy law in England only protected Christianity it was therefore in breach of the European Convention on Human Rights.
In the case of Corway v Independent Newspapers (Ireland) Ltd  4 IR 484 the Supreme Court of Ireland decided that the crime of blasphemy no longer existed in Ireland. In part this was because of the wording of the Irish Constitution and its constitutional guarantees of free speech and freedom of conscience (Appendix A) but was also because the court noted that the English common law offence of blasphemy only protected the church ‘by law established’ which, in England, meant the Church of England. The Supreme Court was therefore doubtful whether the common law offence of blasphemy had continued to apply in Ireland once the Church of Ireland was disestablished in 1871. If this view is correct then it could mean that blasphemy is no longer a crime in Wales, since there has been no church ‘by law established’ in Wales since the disestablishment of the Anglican Church in Wales in 1920.
The future of the blasphemy law was examined by a committee of the House of Lords (the legislature not the court) in 2003 (HL Paper 95-I). During the evidence before that committee, views were expressed that prosecutions for blasphemy would be unlawful under the Human Rights Act 1998 because of the protection for freedom on expression in Art 10 of the European Convention on Human Rights (Chapter 2). However, the crime of blasphemy in England and similar legislation in Austria has already been considered by the European Court of Human Rights and was found to be compatible with Art 10. In 1989 the British Board of Film Classification (BBFC) denied a classification to the video of Visions of Ecstasy published by Redemption Films, on the ground that it was blasphemous. The film involved St Teresa of Avila, a sixteenth-century nun, and showed her experiencing erotic visions of Jesus. Following the BBFC decision, Nigel Wingrove of Redemption Films made an application to the European Court of Human Rights claiming that the ban breached Art 10 of the European Convention on Human Rights and was disproportionate. The court, however, dismissed the claim (Wingrove v UK  24 EHRR), and accepted that the criminal law of blasphemy in England did not infringe the right to freedom of expression under Art 10. Similarly, in the case of Otto-Preminger-Institute v Austria  19 EHRR 34 the court decided that Austria had not breached Art 10 when it had banned a film which satirised God, Jesus and Mary:
49. As the Court has consistently held, freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of everyone. Subject to paragraph 2 of Article 10 (art. 10–2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see, particularly, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 23, para. 49). However, as is borne out by the wording itself of Article 10 para. 2 (art. 10–2), whoever exercises the rights and freedoms enshrined in the first paragraph of that Article (art. 10–1) undertakes ‘duties and responsibilities’. Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed be proportionate to the legitimate aim pursued (see the Handyside judgment referred to above, ibid.).
The fact that the law of blasphemy has not been used for nearly 30 years and the fact that its continued existence is routinely criticised by certain politicians and commentators means that, in all probability, the offence can be regarded as moribund today. On the 25th anniversary of the Gay News case, a group gathered to perform a well-publicised public reading of the prosecuted poem and did so without being either arrested or prosecuted. In the debates over the various attempts to create a religious hatred law, the fear was often expressed that it could become a new form of blasphemy law which would prevent criticism of any religion. For example, the fact that under Islamic Shariah law criticism of the Muslim prophet Muhammad is considered a form of blasphemy was behind the well-publicised campaigns against The Satanic Verses and the ‘Danish Cartoons’ of 2005 and led to fears that new legislation could be used to prevent legitimate study, and criticism, of the life of Muhammad and the religion he established. For these reasons the options for the future of the blasphemy law seem to lie between complete repeal or an enlargement to cover all religions and both options are politically controversial. In considering options for the future, a study of legislation passed in British India can be instructive, since India was, and is, a multi-religious society which was governed by English criminal law. The important difference between the Indian Penal Code offence and the blasphemy law in English common law was that the Indian legislation required the defendant to have a ‘deliberate and malicious intention of outraging religious feelings’, which meant that the crime could not be committed recklessly or accidentally.
Indian Penal Code 1860
Preface to Chapter XV dealing with offences relating to religion
The principle on which this chapter has been framed is a principle on which it would be desirable that all Governments should act, but from which the British Government in India cannot depart without risking the dissolution of society: it is this, that every man should be suffered to profess his own religion, and that no man should be suffered to insult the religion of another.
Section 295 (1860) Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
295-A (1927) Whoever with deliberate and malicious intention of outraging the religious feelings of His Majesty’s subjects in India, by words, either spoken or written, or by visible representation, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine or with both.
It is noteworthy that there are similarities between s 295-A of the Indian Penal Code and s 4A of the Public Order Act 1986 (discussed below).
Religiously aggravated criminal offences
The Crime and Disorder Act 1998 created a new category of ‘racially aggravated criminal offences’ and s 39 of the Anti-terrorism, Crime and Security Act 2001 amended the Crime and Disorder Act 1998 so as to change the existing racially aggravated criminal offences into ‘racially or religiously aggravated criminal offences’. These are defined in s 28 of the Crime and Disorder Act 1998 as follows:
Meaning of ‘racially or religiously aggravated’
|28.—(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—|
|(a)||at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or|
|(b)||the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.|
|(2)||In subsection (1)(a) above—|
|‘membership’, in relation to a racial or religious group, includes association with members of that group; ‘presumed’ means presumed by the offender.|
|(3)||It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.|
|(4)||In this section ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.|
|(5)||In this section ‘religious group’ means a group of persons defined by reference to religious belief or lack of religious belief.|
Under ss 29–32 of the Act there are a variety of offences which can be religiously aggravated: s 29 crimes of violence; s 30 criminal damage; s 31 public order offences; and s 32 harassment. In practice, the most important section is s 31, since prosecutions for public order offences can raise complex and controversial questions relating to the balance between freedom of expression and freedom from insult.