The furore over the cartoons depicting the prophet Muhammad has sparked debate over whether the UK’s blasphemy laws suit a multicultural society, reports Alex Wade


Few lawyers would pretend to have been overly familiar with the Danish newspaper Jyllands-Posten before it published caricatures of the Prophet Muhammad last September. Had it not been for the republication of the images by several European newspapers in January, this would have probably remained the case.


But in the wake of the intense controversy engendered by subsequent widespread republication of the caricatures across Europe, Jyllands-Posten is now firmly etched in the minds of UK media lawyers, at least. Thanks to the Danish newspaper, our antediluvian blasphemy laws and their relationship to modern concepts of freedom of expression are again in the spotlight.


The tide of discontent caused by the cartoons began with protests by governments of Islamic countries in October last year, and has swelled to boycotts of Danish products and death threats against the caricaturists, with violent demonstrations in the UK and France. The reaction of the Muslim community in Britain has not been uniform, but those Muslims who would hope to turn to the law of blasphemy for redress will be disappointed. Islam is not a faith recognised by this branch of the law.


In this, it is not alone. As has been the case for centuries, the common law offence of blasphemy only arises in relation to outrage against the Christian faith. Indeed, the ambit of what is technically known as ‘blasphemous libel’– the publication of outrageous, vilifying and usually indecent comments about God or holy personages – is yet narrower. In 2003, a House of Lords select committee’s report on Religious Offences in England and Wales stated that the law of blasphemy only protected the Church of England. Catholicism, as well as Islam, does not find shelter under this branch of the common law.


Not, though, that shelter is often sought, even by the Church of England. The last time anyone was sent to prison for blasphemy was in 1921, when John Gott was sentenced to nine months’ hard labour after publishing satires comparing Jesus to a circus clown. As Caroline Kean, a media partner at Cheltenham firm Wiggin, puts it: ‘The offence of blasphemy has all but vanished. It is difficult to think of circumstances in today’s essentially secular society in which a prosecution would be successful.’


Ms Kean’s view was presaged half a century ago by no less a figure than Lord Denning. In a 1949 speech, he opined: ‘It was thought that a denial of Christianity was liable to shake the fabric of society, which was itself founded upon Christian religion. There is no such danger to society now and the offence of blasphemy is a dead letter.’


But Lord Denning’s lack of enthusiasm was not embraced by his colleagues among the judiciary. In 1977, in the only prosecution for blasphemy since the Gott case, a jury found by a majority of ten to two that the publishers of Gay News had published a blasphemous libel in the form of a poem, suggesting that the universality of Jesus Christ’s love included homosexuality.


On appeal to the House of Lords – which upheld the conviction by three to two – Lord Scarman scotched the Denning line: ‘I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in modern law… The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom.’


Such language seems at odds with the reality of modern Britain, not least because of the requirements of the Human Rights Act 1998. Domestic law now has to be compatible with the European Convention on Human Rights, which, in article 10, confers a positive right to freedom of expression. In a world dominated by instantaneous on-line communication of virtually everything, save for the most sensitive of government secrets, it often appears that the right to freedom of expression has become as sacrosanct as the religion that the old common law blasphemy law sought to protect. But the right is not absolute, and may be fettered if prescribed by law, in pursuance of a legitimate aim or to satisfy a pressing social need.


Fetters such as the laws of defamation and contempt of court are well known to the media. Another exists in the form of the Public Order Act 1986. This prohibits the use of threatening, abusive or insulting words or behaviour, or the display of any written material which is threatening, abusive or insulting with the intention of stirring up racial hatred, or where racial hatred is likely to be stirred up. Racial hatred is defined as hatred against a group of persons in the UK defined by reference to colour, race, nationality – including citizenship – or ethnic or national origins. But as Nigel Tait, a partner with City media firm Carter-Ruck, says: ‘Incitement to religious hatred is not covered by the legislation. Arguably, it should be. Why should freedom of expression be used to facilitate the publication of material that could lead at best to breaches of the peace, or, worse, to death?’


Incitement to religious hatred is covered by the government’s Racial and Religious Hatred Bill, which was passed by both Houses of Parliament last month. The Bill is designed to make it illegal to ‘threaten people because of their religion, or to stir up hatred against a person because of their faith’.


Significantly, the Lords won two amendments to safeguard freedom of speech. The Bill will only cover threatening words or behaviour, not ‘generally abusive or insulting words about religion that are not actually threatening’. It will also be necessary for the speaker to have intended to stir up racial hatred – and specifically excludes proselytising, discussing, criticising, insulting, abusing and ridiculing religion, beliefs or religious practice.


The tendency towards an emphasis on freedom of expression, allied with the disuse into which the law of blasphemy has fallen, explains why the artists Gilbert and George are unlikely to find themselves prosecuted for their current exhibition at east London’s White Cube Gallery. Entitled ‘Sonofagod Pictures, Was Jesus Heterosexual?’, the show appears intended to suggest that religion is tantamount to superstition. One picture is illustrated with the words ‘God Loves F***ing’ in large letters, and the exhibition was condemned by Tory MP Ann Widdecombe as ‘blasphemous in the extreme’. But to amplify her criticism, Ms Widdecombe chose not to rely on the law, but to warn that Gilbert and George would learn of the error of their ways ‘when they finally stand before the Son of God’.


A reliance on faith can be taken to extremes, such as Iranian clerical leader Ayatollah Khomeini’s 1989 fatwa, in which he called for Salman Rushdie’s death following the publication of The Satanic Verses. Domestic law had, of course, proved useless to Muslims outraged by the novel. The High Court upheld Bow Street magistrates’ decision to refuse to issue a summons for blasphemy against the novel, accepting that it was ‘a gross anomaly’ that the law protected only the Church of England, but stating that, even if it had the power to do so, it would not extend the law. It said: ‘The existence of an extended law of blasphemy would encourage intolerance, divisiveness and unreasonable interference with freedom of expression.’


Ms Kean shares this view: ‘There are clearly inconsistencies in the law. But in a sensitive area such as religion, we need less law, not more. The more the law seeks to codify religion, the more danger there is that it unwittingly promotes division. There is also the problem of defining religion in a statute. Would Scientology be accorded the same status as Islam or Christianity?’


For David Hooper, a media partner at Reynolds Porter Chamberlain in London, freedom of expression is key. ‘It is anomalous, in a multicultural society, that we retain the blasphemy law in favour of one religion. But the answer is not to extend the law to cover other faiths. As it is, it is always possible for special interest groups to hijack the law for their own divisive aims, when what should happen is that each religion takes its chance in a society that encourages debate that may be prejudiced, or even offensive to many civilised people, but which is nevertheless free.’


Or, as Voltaire put it: ‘I do not agree with what you have to say, but I’ll defend to the death your right to say it.’


Alex Wade is a freelance journalist