Green, R (on the application of) v City of Westminster Magistrates' Court & Ors

Criminal blasphemous libel requires both offensive treatment of Christianity or sacred subjects and a tendency to threaten society generally by endangering public peace, depraving public morality, shaking the fabric of society or causing civil strife. Deep offence to a particular group is insufficient. In deciding whether a private prosecution should proceed, a magistrate must independently assess whether the essential ingredients are prima facie present. Where the facts are undisputed, the magistrate may refuse process if no properly directed jury could convict. The context and target of a work are relevant: offensive words placed in a character’s mouth do not necessarily constitute blasphemy where the work is not an attack on Christianity. The Theatres Act 1968 and the Broadcasting Act 1990 prevented the proposed prosecutions in respect of the theatrical performances and broadcast.

The claimant sought judicial review of a District Judge’s refusal to issue summonses against the producer of Jerry Springer: the Opera and the Director General of the BBC. The proposed private prosecutions alleged criminal blasphemous libel arising from stage performances and a BBC broadcast.

The District Judge held that the Theatres Act 1968 barred prosecution in respect of the theatrical performances and that there was no prima facie case of blasphemous libel. The central issues were the statutory bars, the ingredients of blasphemous libel, the proper approach to the evidence and the relevance of delay and alleged vexation.

1. Application refused. The District Judge had correctly refused to issue the summonses.
2. Blasphemous libel requires material relating to God, Christ, the Bible or the formularies of the Church of England which is contemptuous, reviling, scurrilous or ludicrous, together with a tendency to endanger society generally. The second element is essential and is not established merely because particularly sensitive individuals are deeply offended. It requires a reasonable reaction involving civil strife, damage to the fabric of society or an equivalent threat to public order. The court regarded that requirement as consistent with Article 10 of the European Convention on Human Rights, although it did not decide the separate Article 10 defence. (paras [10]–[17])
3. Section 2(4) of the Theatres Act 1968 bars proceedings for a common-law offence where it is of the essence of the offence that the performance, or what was said or done, was offensive or injurious to morality. Offensiveness was essential to blasphemous libel. The provision therefore barred prosecution for the live performances. The equivalent wording in Schedule 15 paragraph 6 of the Broadcasting Act 1990 barred prosecution for the broadcast. (paras [18]–[24])
4. The court rejected the alternative argument that section 8 of the Theatres Act 1968 required the Attorney General’s consent to a blasphemy prosecution. Section 8 applied to the specified new offences and criminal defamatory libel, not to every prosecution connected with a play. Blasphemous libel was not a subdivision of defamatory libel. (para [25])
5. The District Judge had exercised her own judgment. Earlier judicial review proceedings and the BBC Governors’ Programme Complaints Committee decision were relevant material, but they did not determine the issue. The District Judge was entitled to conclude that, on the undisputed evidence, no properly directed jury could convict. The play’s target was the exploitative television chat show, not Christianity, and its dramatic context weakened or eliminated any relevant attack on Christianity. There was also no evidence of the required threat to society generally. (paras [27]–[33])
6. A magistrate may consider delay and vexation when deciding whether to issue a summons. Delay alone will rarely justify refusal, and its effects are usually better examined after proceedings have begun. The District Judge had not relied on delay or vexation as a reason for refusal, and the court declined to make a vexation finding itself. (paras [35]–[37])

The claimant sought judicial review of the District Judge’s refusal to issue summonses. The Administrative Court dismissed the application and upheld both reasons given by the District Judge.