By Amber Melville-Brown, David Price Solicitors and Advocates, London


Musicals and blasphemous libel

It's not everyone's idea of an entertaining evening. In Jerry Springer the Opera, hideously caricatured versions of the social misfits that feature in the type of chat shows hosted by Jerry Springer and others caterwaul their distress over their unfaithful loved ones or their concern over sexual inadequacies until, eventually, the show's host is shot by one of the tortured guests at the end of the first act. In a dream sequence in the second act, the show's host descends into hell where amid much profane language and excessive behaviour, the chat show's guests are now Satan, Christ, God, Mary and Adam and Eve.



But does that make it blasphemous libel? According to Stephen Green, a member of the organisation Christian Voice, that is just what it is and he attempted to bring a private prosecution against the producers of the show and the BBC in January 2007 (R (Green) v City of Westminster Magistrates' Court [2007] EWHC 2785 (Admin)).



While the West End production was a box office hit, a BBC broadcast of the show caused outrage even before transmission. Complaints flooded in before and after the broadcast, and the BBC board of governors and Ofcom both undertook reviews. However, neither found a breach of the codes of conduct. Ofcom accepted that 'a large number of people were deeply offended by the transmission' but that 'the show was an important work and commentary on modern television'. There had been clear advance warnings as to content, the religious figures were depicted as characterisations, not real, and a balance had been sought and achieved between any harm to religious beliefs and freedom of expression.



Mr Green's attempt to bring legal proceedings against the theatrical producers and the BBC for blasphemous libel was met with a refusal by the district judge to issue the summons. He sought judicial review of that decision - the intended defendants and the civil rights group Liberty were represented as interested parties - and Lord Justice Hughes handed down the ruling of he and Mr Justice Collins before Christmas 2007.



The district judge had held that the prosecution was contrary to the Theatres Act 1968, as section 2(4) protects producers from prosecution for common law offences where the essence of the offence is the propensity to offend, as it is in blasphemous libel. Lord Justice Hughes agreed that its aim was to abolish censorship in the theatre, and that it had been correctly applied, and that a similar provision in the Broadcasting Act 1990 protected the BBC from prosecution for its broadcast of the play.



The district judge had also found on the evidence before her that there was no prima facie case of blasphemous libel. The claimant's case was, as summarised by Lord Justice Hughes, that 'no matter what the merits or demerits of the artistic qualities of this work, it contains material which is contemptuous and reviling of the Christian religion, of Christ and several biblical characters, and of the formalities and tenets of the Church, and further that it is delivered in a scurrilous and ludicrous manner'. Indeed, the cartoon religious figures assembled in act two, as if in a hellish version of the Springer show, fight and swear at each other, Christ tells Satan to 'talk to the stigmata', there are references to Mary and a failed condom, and Christ is accused of being 'a bit gay' - and appears to accept it. But was that enough to constitute blasphemous libel?



The offence has been used only once since 1922, in the case of Whitehouse v Lemon [1979] AC 617. The Court of Appeal accepted that the offence was good law, but clarified that a two-stage approach was required to justify a conviction: (1) there must be contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the bible or the formalities of the Christian Church, and (2) the publication must be such as tends to endanger society as a whole by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife. In his judgment, Lord Justice Hughes reiterated that the second element 'must not be watered down'.



It was not always thus, as Lord Justice Hughes summarised: 'Until the second half of the seventeenth century, after the restoration, blasphemy was dealt with by the ecclesiastical courts or Star Chamber. Thereafter it was recognised to be a common law misdemeanour and so punishable in the ordinary courts. At that time, any attack on Christianity or the Church of England would, because of the identity of church and state, and the near universality of Christian conviction in this country (whatever the sectional differences), have led to a ready assumption that the second element would follow naturally from the first'. In other words, and crudely to summarise further, in those days we were all such a fervently religious lot, and most of us Church of England Christians to boot, that any scurrilous attack on God would necessarily tend to whip us up into a frenzy such as to endanger society as a whole.



But things changed. 'The mere denial of the truth of the Christian religion or of the Scriptures is not enough' to constitute a blasphemous libel, is how Lord Coleridge CJ put it in Ramsay and Foote [1883] 15 Cox CC 231. In Whitehouse v Lemon, Lord Justice Roskill observed on the development of the offence that 'the state only became interested in the offence if the actions of the alleged offender affected the safety of the state'. In no uncertain terms, Lord Justice Hughes set out in the present case 'what is necessary to make such material a crime is that the community (or society) generally should be threatened. This element will not be shown merely because some people of particular sensibility are, because deeply offended, moved to protest'.



In considering the two-stage test, he found that the target of Jerry Springer the Opera was 'the "tasteless" chat show' and that 'the play as a whole was not and could not reasonably be regarded as aimed at, or an attack on Christianity or what Christians held sacred'. As for the second limb, no evidence had been put before the district judge to satisfy it. For two years, characters with the voices of angels but the morals of the devil tramped the boards, yet their doing so did not undermine society. Demonstrations on the day before and the day of the BBC broadcast - of 75 and 500 people respectively - could hardly be seen as endangering society as a whole. The district judge's reasoning was correct and the judicial review failed.



There may be some who mourn the loss of an era when religion played a fundamental role and underpinned the very fabric of society. But despite the demise of the importance of the Church of

England in modern British society, it could be argued there is a silver lining.



Modern Britain is unlikely to be moved en masse to take up arms as a result of an attack in an artistic endeavour on the Christian Church. It may be argued not only that this modern Britain appreciates the significant value of freedom of speech and has widened its horizons in terms of what constitutes art, but also that this lack of a united religious identity, despite the fact that it can itself spill over into unrest, is evidence that Britain has become a welcome melting pot of diverse cultures, faiths and religions.