Monday, 29 October 2018

Religious intolerance ~ ES v Austria

Ireland has held a referendum in which the majority voted to remove the offence of Blasphemy from their law - The Observer 27 October 2018.  The referendum saw 64.85% vote yes to remove the offence of blasphemy, with 35.15% in favour of retaining it.  A total of 951,650 people voted for the change, with 515,808 opposing the move. The decision on a turnout of 43.79%, was the latest reflection of seismic social and political changes in Ireland, which the Taoiseach, Leo Varadkar, has described as a “quiet revolution”.

In 1985 the Law Commission for England and Wales recommended the abolition (without replacement) of the common law criminal offences of Blasphemy and Blasphemous Libel - see Offences against Religion and Public Worship
The Law Commission noted that the offences extended only to the Christian Religion.  After consideration of arguments for and against retaining the offences, the report concluded that "where members of society have a multiplicity of faiths or none at all, it [was] invidious to single out that religion, albeit in England the established religion, for protection."

It took Parliament until 2008 to get around to their abolition - Criminal Justice and Immigration Act 2008 section 79 which entered into force on 8 July 2008.  The generally welcomed abolition of those ancient and ill-defined offences applied only to England and Wales.

There were to be no more trials such as the prosecution brought by the late Mary Whitehouse (1910-2001) of "Gay News" and its editor Mr Denis Lemon  - see History Today: Blasphemy on Trial.   The case was concerned with James Kirkup's poem The Love that Dares to Speak its Name  published in the 3 June 1976 issue of Gay News.   The poem, written from the viewpoint of a Roman centurion, graphically describes him having sex with Jesus after his crucifixion.

The poem would probably have hardly been noticed by the general public but for the prosecution.  Having brought it to public attention there was no doubt that many found it offensive but, as far as I can recall, almost nobody seriously thought that the writer or the magazine should be prosecuted for it.  

Mr Lemon received a nine month suspended prison sentence and was fined £500 whilst Gay News was fined £1,000.   In March 1978, the Court of Appeal quashed Lemon’s suspended prison sentence.  The remaining convictions were finally put before the Law Lords in February 1979 where they were upheld by a majority of 3 to 2.  The Court of Appeal judgment in Whitehouse v Lemon is at [1979] QB 10 and the House of Lords judgment at [1979] AC 617.

Following the Lords judgment, an interesting conversation about the appeal took place between broadcaster and barrister Robin Day and Denis Lemon and it may be heard via Youtube.

Interestingly, an attempt to bring a prosecution for blasphemous libel failed in 2007.  Mr Stephen Green, a member of an organisation called Christian Voice, sought to bring a private prosecution for blasphemous libel.  His target was a theatrical work entitled 'Jerry Springer: the Opera'.  This had been performed in various theatres in the UK, including runs within the jurisdiction at the National and Cambridge Theatres in London between April 2003 and February 2005; the last performance alleged was at Brighton in July 2006.  One live but also recorded performance had been broadcast by the BBC on 8 January 2005.  The Claimant sought from the Magistrates Court summonses against the producer of the stage play and the Director General of the BBC.  The District Judge refused to issue the summonses and that decision was upheld by the High Court - see R (Stephen Green) v City of Westminster Magistrates' Court [2007] EWHC 2785 Admin - Hughes LJ and Collins J.  The offence is discussed at paragpahs 10-17.

Racial and Religious Hatred:

The Racial and Religious Hatred Act 2006 inserted Part 3A into the Public Order Act 1984.  The Act defined “religious hatred” as hatred against a group of persons defined by reference to religious belief or lack of religious belief.

Defining Islamophobia:

An All-Party Parliamentary Group on British Muslims is seeking to have a statutory definition of Islamophobia. - see, for example, Ilford Recorder 18 September 2018.   Ilford North MP Wes Streeting, co-chair of the all-party parliamentary group on British Muslims, held the last in a series of community consultations to create a working definition of Islamophobia at Gardens of Peace, in Elmbridge Road, on Monday, September 17.  Opening the meeting, Mr Streeting said: “What we are looking to do is have, for the first time, a statutory definition of Islamophobia.”

It is unsurprising that some see this as a step towards an Islamic Blasphemy Law in Britain .  This article at Altnewsmedia argues that this must be opposed - "Such a law would further deprive British citizens of their birth right: the freedom to express their opinions, without which true liberty is impossible .... "

E.S. v Austria - European Court of Human Rights:

E.S. v Austria is a judgment by the 5th Section of the European Court of Human Rights  The case was concerned with whether the conviction in Austria of an individual for "disparaging religious doctrines" (contrary to Austria's Criminal Code Article 188) contravened the individual's right to freedom of expression under Article 10.

Article 188 states - "Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

The court has published a Press release and the judgment is also available. 

The essential facts of the case were:

The Court noted that those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention could not expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs.  Only where expressions under Article 10 went beyond the limits of a critical denial, and certainly where they were likely to incite religious intolerance, might a State legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures. 

The Court observed also that the subject matter of the instant case was of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, it considered that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country. 

The Court reiterated that it has distinguished in its case-law between statements of fact and value judgments. It emphasised that the truth of value judgments was not susceptible to proof. However, a value judgment without any factual basis to support it might be excessive. The Court noted that the domestic courts comprehensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation; specifically, they had not been made in an objective manner contributing to a debate of public interest (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship. It agreed with the domestic courts that Mrs S. must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others. The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the Court saw no reason to depart from the domestic courts’ qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made. The Court found in conclusion that in the instant case the domestic courts carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.

The Court held further that even in a lively discussion it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression. Lastly, since Mrs S. was ordered to pay a moderate fine and that fine was on the lower end of the statutory range of punishment, the criminal sanction could not to be considered as disproportionate. Under these circumstances, and given the fact that Mrs S. made several incriminating statements, the Court considered that the Austrian courts did not overstep their wide margin of appreciation in the instant case when convicting Mrs S. of disparaging religious doctrines. Overall, there had been no violation of Article 10.

The judgment is discussed by EJIL: Talk and  Law and Religion and by Barrister Blogger.

The result under this judgment is that a national criminal offence of "disparaging religion" is not necessarily incompatible with the European Convention.  The case has NOT done any of the following:
  • established a blasphemy law applicable to Europe 
  • altered English law
  • require the UK Parliament to legislate for any new offence
  • made criticising or insulting Islam a crime
  • given Islam any legal protection over and above that offered to other religions.
Whilst blasphemy laws have been disappearing over Europe, this case has the appearance of endorsing a national law - disparaging religion - which is effectively a form of blasphemy law!  The judgment has drawn wide attention to the views expressed by E.S. and, by doing so, is bound to give succour to right-wing anti-Islam sentiments.

Furthermore, the message sent out by the court - an international human rights court - could be used as an argument that the death penalty is acceptable in States where it exists for offences against religion or religious belief.  At the time of the Strasbourg judgment, Asia Bibi was under sentence of death under Pakistan's blasphemy laws and she was awaiting the outcome of her appeal to the Pakistan Supreme Court - see The Tablet 8 October 2018.  In the event, the Supreme Court acquitted her - BBC News 31 October 2018.

E.S. v Austria is a very poor judgment which erodes freedom of speech and almost certainly increases religious intolerance.  It is to be hoped that the trend against blasphemy laws continues rather than the opposite of encouraging their return in some disguise or other.

At the time of writing it remains possible that the case could go to the Grand Chamber though it may be doubtful that right-wing elements will wish to pursue that route.  After all, the court has probably given them exactly what they wanted !


Blasphemy laws generally:

For the position in European countries see here

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