High Court of Ireland Decisions

1. Shortly after the recent Divorce Referendum and in its issue of the 26th November, 1995, the Sunday Independent included an article by Dr. Conor Cruise O'Brien entitled "Catholic in their bones" and dealing with what he perceived as the diminished influence of the Catholic Church in Ireland in the context of the result of the Referendum. The article was introduced by a blurb in the following terms:-

2. To the side of the blurb and sharing one of the columns containing Dr. O'Brien's article was a cartoon. The cartoon consisted of a stout comic figure of a priest in an old-fashioned surplice with lace on the sleeves and at the bottom and a stole holding what was clearly the host in his right hand and a chalice in his left hand. To the left of him were three caricatured ministers, namely, from left to right, Mr. De Rossa, Mr. Ruairi Quinn and the Taoiseach, Mr. Bruton, each with a hand up indicating rejection of the host and chalice being offered by the priest. Immediately above the cartoon were the words "Hello, Progress - Bye-Bye Father?". The cartoon and the caption were in a rectangular frame. The Applicant, Mr. John Corway, has by this Motion applied to the High Court under Section 8 of the Defamation Act, 1961 for an Order granting him leave to commence a criminal prosecution for blasphemous libel against the Respondents who he says were responsible for the cartoon and caption. Section 8 of the Defamation Act, 1961 reads as follows:-

3. This provision in the 1961 Act was not a new provision. Its ancestry went as far back as the Newspaper Libel and Registration Act, 1881. By Section 3 of that Act, a criminal prosecution for libel could not be commenced against the proprietor, publisher, editor or any person responsible for the publication of a newspaper without the written fiat or allowance of the Attorney General in Ireland. Section 8 of the Law of Libel Amendment Act, 1888 amended the Section so as to provide that leave to prosecute was to be obtained from a Judge in chambers. The 1961 Act therefore did not change the law, apart from specifying that the application was to be made in camera. Questions were raised by the Respondents at the hearing as to whether the Applicant had provided adequate proof of the responsibility of the Respondents for the publication and I indicated that I would, if necessary, permit additional evidence in relation to this matter. Subject to that proviso and for the purposes of this judgment I will assume that the Respondents in the Motion are the proper Respondents.

4. Although as far as I am aware, there has been no modern application to the Court under Section 8 of the Defamation Act, 1961 for leave to commence a prosecution for blasphemous libel, there have been at least two applications for leave to commence a prosecution for criminal libel using that expression in its narrower sense of meaning defamatory libel. One of these cases was an application of Eddie Gallagher in which an unreported judgment was delivered by Finlay P. (as he then was) on the 3rd July, 1978. The other was Hilliard v. Penfield Enterprises Limited [1990] 1 IR 138 in which Judgment of Mr. Justice Gannon was delivered on the 2nd March, 1990. In his judgment, Gannon J. adopted and followed principles laid down in his judgment by Finlay P. who in turn adopted and followed certain English case law. The principles as identified by Finlay P. were set out by him as follows:-

5. I am satisfied that analogous principles should apply to an application for leave to institute a prosecution for blasphemous libel. Clearly the origin of the statutory provision requiring leave of a Court for instituting a criminal case of libel against a publisher or editor of a newspaper was to protect the fundamental right of free speech and freedom of the press, but on the other hand to ensure that appropriate criminal prosecutions for libel should not, be impeded in the public interest. A similar balance has now to be struck under the Constitution. Under Article 40(6)(1)(i) the State guarantees the right of the citizens to express freely their convictions and opinions. That right, however, is qualified by the later provisions of the same sub-paragraph where it is stated that

6. No statutory offence of blasphemy was ever created after the Constitution came into force. It is safe to assume that the Oireachtas considered that the common law offences of blasphemy and blasphemous libel would have been carried over under the Constitution as not being inconsistent with it. This at least must have been the view of the Oireachtas which enacted Section 8 of the Defamation Act, 1961. I think that that view is clearly correct. The only doubt that could be thrown on it arises from suggestions in some of the earlier cases that blasphemy consisted in attacks on the doctrines of the then established church or on suggestions that any attacks on the Christian religion, however mildly couched, would be blasphemous. But I would be firmly of the view that as a matter of high probability the framers of the Constitution would have regarded Bowman v. Secular Society Limited , 1917 A.C. 406 as representing the modern law of blasphemy in Ireland as well as England. That pre-1924 decision of the House of Lords would have been binding on the Irish Courts as of the time of the enactment of the Constitution. I am satisfied, therefore, that in considering this application I need not concern myself with any particular words in the Constitution as either having the effect of expanding the meaning of blasphemy or as in some way superseding the common law offences.

7. Returning to the principles laid down by Finlay P., I am of opinion that the Applicant has failed to establish the very first principle to say nothing of the others. There is not a clear prima facie case in the sense that it is a case which is so clear at first sight that there is beyond argument a case to answer if the matter goes before a criminal court. But I take this view not because of an absence of mens rea (the matter which was mainly argued) but because of an absence of actus reus that is of the essential ingredients of the offence. In fact I would go further and say that if I believed there was a clear prima facie case establishing the necessary actus reus, I would have to hold that there was a prima facie case in the sense referred to by the former President that the necessary "mens rea" or, in other words, necessary intention existed.

8. In a Motion under Section 8 of the Defamation Act, 1961 it would be inappropriate and wholly unnecessary to trace the entire history of blasphemous libel and the cases relating to it, though many of them have been opened to me with considerable erudition and I take them into account. As far as the actus reus of the offence is concerned it is not necessary to go behind Bowman v. Secular Society Limited cited above. It is perfectly clear from that case and from earlier case law which it approved and followed, that it is of the essence of blasphemy and ipso facto therefore of the essence of blasphemous libel that the words or picture complained of constitute an attack on some tenet of the Christian religion. It is perfectly clear to me that the controversial cartoon in the Sunday Independent does not in any sense constitute such an attack. Arguably it may well be bad taste or it may well have been shocking to many members of the Catholic Church. But it was not an attack on any doctrine or belief of that church. It was intended to be a comic depiction of the Government rejecting the Church's advice in relation to voting at the Divorce Referendum and was clearly intended to be viewed alongside the article by Dr. Conor Cruise O'Brien. The caption "Hello, Progress - Bye-Bye Father?" was obviously a play on the words used in a slogan of the "No-Divorce Campaign", that is to say "Hello, Divorce - Bye-Bye Daddy". While in a very loose sense, an ordinary Catholic might think it blasphemous to use the chalice and the Eucharist in the cartoon, it is perfectly clear that the cartoon is not intended to suggest that the three ministers depicted or the Government as a whole were attacking either the doctrine or the practice of the Eucharist or the taking of communion whether under single or double species. In her Affidavit of the 11th April, 1996 Wendy Shay, the illustrator and cartoonist who composed the cartoon states, that the central theme of the cartoon was the relationship between Church and State in the immediate aftermath of the Divorce Referendum. She said that the cartoon merely sought to illustrate the belief of many, including Dr. Conor Cruise O'Brien, that the influence of the Catholic Church in our Irish Society was on the wane, as shown by the passage of the Divorce Referendum notwithstanding the Church's opposition. She also avers that she did not intend, either in the preparation or publication of the cartoon, to insult the feelings or religious convictions of any of the readers of the Sunday Independent and in particular she did not and would not wish to treat the sacrament of the Eucharist and its administration as objects of scorn or derision. It is, however, clear from correspondence exhibited that many readers of the Sunday Independent did find the cartoon offensive and complained about it. But as it is a depiction of an alleged factual situation, that is, that the State was no longer willing to follow Church guidance and not an attack on the doctrine or administration of the Eucharist or any other tenet of the Roman Catholic religion, it could not in my view or in the view of any rational jury constitute a blasphemous libel as the essential ingredient would be missing. As to whether it does constitute an attack on doctrines of Christianity or not, is an objective question. It must be irrelevant to the element of actus reus that some readers who might have looked quickly at the cartoon and not read the accompanying article could in some way have assumed that it was a sneering at the doctrine.

9. If I am wrong in the view which I have taken about the essential ingredient of the offence and if it be considered that a crime of blasphemy is constituted by any matter likely to offend Christian religious sensibility, then I think that I should indicate what my view would be in that event about the element of mens rea.

10. There is no modern Irish case dealing with mens rea in the crime of blasphemy. But there is a modern English case decided in the House of Lords which must be of some persuasive authority. That is the case of R. v. Lemon , 1979, 1 All E.R. 898. The single issue which was before the House of Lords in that case was whether in order to secure a conviction for the offence of publishing a blasphemous libel, it was sufficient, for the purposes of establishing mens rea, for the prosecution to prove an intention to publish material which was in fact blasphemous or whether it was necessary for them to prove further that the Defendants intended to blaspheme. The Law Lords by three to two held that a special intent was not necessary. The majority view was held by Viscount Dilhorne, Lord Russell of Killowen and Lord Scarman, whereas the minority view that a special intent was necessary was adopted by Lord Diplock and Lord Edmund-Davies. The consultative paper on the crime of libel issued by the Law Reform Commission in 1991 favours the minority view point. Counsel for the Respondents, Mr. McMenamin, has urged on me to adopt that view. However, I do not find it necessary to express any view one way or the other because if, contrary to my understanding of the law, it should be held that a cartoon offensive to religious sensibilities is blasphemous irrespective of whether it is actually attacking religious beliefs or not, then clearly this cartoon would arguably be blasphemous in that sense and as I interpret the speeches in the House of Lords, the necessary mens rea would have been present irrespective of whether one accepts the majority or the minority view. Although Lord Diplock and Lord Edmund-Davies argued for a special intent, Lord Diplock makes it perfectly clear that what is meant by that is either an actual intent to produce the effect on believers or a recklessness as to whether the effect would be produced on believers or not. To quote Lord Diplock:-

11. Lord Edmund-Davies was obviously also using the word "intention" in the same sense. If the majority view of the House of Lords is correct then arguably the necessary mens rea would have been present here in that there was an intention to publish the cartoon in the Sunday Independent. If, on the other hand, the minority view is correct, there was arguably recklessness on the part of the Respondents in permitting a cartoon to be published involving what Catholics believed to be the body and blood of Christ and which was arguably going to be deeply offensive to many members of that church. For that reason I take the view that this case does not turn on mens rea. Rather it turns on actus reus. There are passages in the Lemon case which might seem to suggest that the gist of the offence of blasphemy was offence and shockability but I think that that would be a misreading of the views expressed by the Law Lords. Lemon's case was strictly confined to the issue of mens rea and the Appellate Committee did not in any way concern itself with what were the necessary ingredients of the offence of blasphemy or in other words the actus reus. The leading English authority on that matter is still Bowman v. Secular Society Limited cited above. The causing of offence constantly referred to in Lemon's case is of course a necessary ingredient of the modern crime of blasphemy but it accompanies, as I understand the law, an attack on some tenet or practice of the Christian religion. There was a time when it was considered that any criticism of the Christian religion, however moderately couched, was blasphemous. That is no longer considered to be the law and it is in that context that elements of offence are referred to.

12. But even if the cartoon did constitute on a prima facie basis the crime of blasphemy, I would still not give leave to institute the proposed prosecution. I would have to address the fourth of the principles set out by Finlay P., that is to say, does the public interest require the institution of criminal proceedings? I cannot see that any public interest would be served by instituting the proposed prosecution. It was an isolated cartoon in a national newspaper. There is no evidence before me that the same newspaper makes a practice of offending Christian or more particularly Catholic beliefs and it is perfectly obvious what the purpose of the cartoon was upon a proper examination of it and its context in juxtaposition to the article by Dr. Conor Cruise O'Brien, whatever might be the misunderstandings of some readers. Gannon J. refused leave on grounds of public interest in the Hilliard case. In my opinion that was a much stronger case for granting leave than this case is. Even if I were wrong, therefore, on the view I have taken that the cartoon is not capable of being considered blasphemous in law, I would still refuse leave on the ground that such a prosecution would not be in the public interest.

13. Having regard to the views which I have taken, it is not necessary to consider the other questions relating to proof of the Respondents' connection with the newspaper but I will consider permitting the filing of any additional affidavits after hearing Counsel.