Court: House Of Lords
Title: Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd On Appeal From Regina -v- Lemon
Date: 1979 Feb. 21
Coram: Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies, Lord Russell of Killowen and Lord Scarman
Counsel: Louis Blom-Cooper Q.C. and Geoffrey Robertson for Lemon, Geoffrey Robertson for Gay News Ltd. John Smyth and Jeremy Maurice for the Crown.
Ref:  2 WLR 281
Cur ad vult
February 21 1979
My Lords, the appellants are the editor and publisher of a magazine called "Gay News." As its name suggests its readership consists mainly of homosexuals though it is on sale to the general public at some bookstalls. In an issue of "Gay News" published in June 1976 there appeared a poem by a Professor James Kirkup entitled "The Love that Dares to Speak its Name" and accompanied by a drawing illustrating its subject matter. The poem purports ko describe in explicit detail acts of sodomy and fellatio with the body of Christ immediately after His death and to ascribe to Him during His lifetime promiscuous homosexual practices with the Apostles and with other men.
The issue in this appeal is not whether the words and drawing are blasphemous. The jury, though only by a majority of ten to two, have found them to be so. As expressed in the charge against him they "vilify Christ in His life and in His crucifixion"; and do so in terms that are likely to arouse a sense of outrage among those who believe in or respect the Christian faith and are not homosexuals and probably among many of them that are. The only question in this appeal is whether in 1976 the mental element or mens rea in the common law offence of blasphemy is satisfied by proof only of an intention to publish material which in the opinion of the jury is likely to shock and arouse resentment among believing Christians or whether the prosecution must go further and prove that the accused in publishing the material in fact intended to produce that effect upon believers, or (what comes to the same thing in criminal law), although aware of the likelihood that such effect might be produced, did not care whether it was or not, so long as the publication achieved some other purpose that constituted his motive for publishing it. Wherever I speak hereafter of "intention" I use the expression as a term of art in that extended sense.
At the trial the judge in a carefully considered ruling given after lengthy argument held that the offence was one of strict liability. The ruling made irrelevant (and therefore inadmissible) any evidence by Mr. Lemon, the editor of "Gay News," about his own intentions in publishing the poem and drawing; accordingly he did not go into the witness box and no other evidence was called on behalf of the accused. The judge summed up to the jury in masterly fashion and in accordance with his ruling; the jury by a majority verdict convicted both appellants.
The convictions were upheld by the Court of Appeal, who certified that the following point of law of general public importance was involved in their decision to dismiss the appeals.
"Was the learned trial judge correct (as the Court of Appeal held) first in ruling and then in directing the jury that in order to secure the conviction of the appellants for publishing a blasphemous libel: (1) it was sufficient if the jury took the view that the publication complained of vilified Christ in His life and crucifixion, and (2) it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel?"
My Lords, the offence of publishing a blasphemous libel has a long and at times inglorious history in the common law. For more than 50 years before the prosecution in the instant case was launched the offence seemed to have become obsolete, the last previous trial for it having taken place in 1922. Originally the offence was cognisable only in the ecclesiastical courts. Its history from the 17th century when jurisdiction over it was first assumed by the courts of common law until its apparent disappearance from the criminal calendar after 1922 is traced in fascinating detail in Professor Nokes's work, A History of the Crime of Blasphemy, published in 1928 and now out of print. A shorter historical account is to be found in Lord Sumner's famous speech in Bowman v. Secular Society Ltd.  A.C. 406 but none of the speeches in that case touch at all upon the question of intention. The judgment of the Court of Appeal in the instant case contains a valuable historical survey of most of the relevant cases with special reference to the intention of the publisher in publishing the blasphemous matter. In this House, too, the speeches to be delivered by my noble and learned friends Viscount Dilhorne and Lord Edmund-Davies will each incorporate a critical analysis of the varying terms in which judicial pronouncements on mens rea in blasphemous and seditious libel were expressed as the 19th century progressed. My own complete agreement with Lord Edmund-Davies's analysis relieves me of the task of attempting what would be no more than a paraphrase of it; but, since it leads to a conclusion as to the state of the law upon this topic by the time the century ended which is diametrically opposed to that reached by Viscount Dilhorne (with which my noble and learned friend Lord Scarman also concurs), I feel bound to concede that by the beginning of the present century the law as to the mental elements in the offence of blasphemous libel was still uncertain. The task of this House in the instant appeal is to give to it certainty now, and to do so in a form that will not be inconsistent with the way in which the general law as to the mental element in criminal offences has developed since then.
Two things emerge clearly from the earlier history, first, that between the 17th century and the last quarter of the 19th, when Sir James Fitzjames Stephen published his History of the Criminal Law of England (1883), the characteristics of the substantive offence of blasphemous libel had undergone progressive changes; and secondly that, as Stephen reluctantly acknowledges in his chapter on "Seditious Offences" (vol. II, p. 298), those changes (which he personally regretted) were largely shaped by the procedural changes in the trial of prosecutions for all forms of criminal libel resulting from Fox's Libel Act of 1792 and by the passing of Lord Campbell's Libel Act of 1843.
In the post-Restoration politics of 17th and 18th century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself; so blasphemous and seditious libel were criminal offences that went hand in hand. Both were originally what would now be described as offences of strict liability. To constitute the offence of blasphemous libel it was enough for the prosecution to prove that the accused or someone for whose acts the law of libel held him to be criminally responsible, had published matter which (in trials held before Fox's Libel Act) the judge ruled, or (in trials held after that) the jury found, to be blasphemous, whether the accused knew it to be so or not. Furthermore, criminal libel in its four manifestations - seditious, blasphemous, obscene and defamatory - was unique among common law offences in imputing to any person who carried on the business of publisher or bookseller vicarious criminal liability for acts of publication done by persons in his employment even though these were done without his authority, consent or knowledge. Since in practice prosecutions were brought against publishers and booksellers rather than against authors, so long as this remained the law, as it did until the passing of section 7 of Lord Campbell's Libel Act in 1843, it could not logically be reconciled with the notion that the accused's own actual intention was a relevant element in the offence.
The severity of the law of blasphemous libel had, however, been somewhat mitigated before 1843 by judicial rulings not as to the mens rea but as to the actus reus of the offence. To publish opinions denying the truth of doctrines of the established Church or even of Christianity itself was no longer held to amount to the offence of blasphemous libel so long as such opinions were expressed in temperate language and not in terms of offence, insult or ridicule. Reg. v. Hetherington (1841) 4 St.Tr.N.S. 563. This introduces into the concept of the actus reus, in addition to the act of publication itself, the effect that the material published is likely to have upon the minds of those to whom it is published.
At a period when an accused could not give evidence in his own defence and his intention to produce a particular result by his acts, where this was an ingredient of the offence, was ascertained by applying the presumption that a man intends the natural consequences of his acts, the distinction was often blurred between the tendency of the published words to produce a particular effect upon those to whom they were published and the intention of the publisher to produce that effect. So that one finds Holt in his text book on The Law of Libel published in 1816 (2nd ed.) defining blasphemous libel as requiring the publication to be made "... with an intent to subvert man's faith in God, or to impair his reverence of him" (p. 64) and during the 20 years before Lord Campbell's Libel Act in 1843 one also finds in reported summings up of various judges occasional references to the intention o the accused.
The abolition in 1843 of vicarious criminal liability for blasphemous libel and the growing influence of Starkie's text book on the law of criminal libel (Starkie's Slander and Libel, 1st ed. (1813); 2nd ed. (1830), 3rd ed. (1869); 4th ed. (1876) opened the way for a further development in the definition of the crime of blasphemous libel; but this time in its mental element or mens rea which was brought into closer harmony with the changed concept of the actus reus. Starkie was one of the Criminal Law Commissioners during the 1840s and became Downing Professor of Law at Cambridge. He adopted Holt's definition and elaborated it in a paragraph (4th ed., p. 599) later to be adopted as an accurate statement of the law by Lord Coleridge C.J. in Reg. v. Ramsay and Foote (1883) 15 Cox C.C. 231, 236.
"The law visits not the honest errors, but the malice of mankind. wilful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as moral, - a state of apathy and indifference to the interests of society, - is the broad boundary between right and wrong."
The language in which this statement is expressed is perhaps more that of the advocate of law reform than of the draftsman of a criminal code. The reference to misleading others is probably outdated in this more sceptical and agnostic age unless what misleads is couched in terms that are likely to shock and arouse resentment among believing Christians. Nevertheless, the statement clearly requires intent on the part of the accused himself to produce the described effect on those to whom the blasphemous matter is published and so removes blasphemous libel from the special category of offences in which mens rea as to one of the elements of the actus reus is not a necessary constituent of the offence.
Although Stephen continued to resist in his writings what he described as this "milder view of the law" accepted by Lord Coleridge C.J., it appears to have been adopted by judges in summing up in subsequent prosecutions for blasphemous libel which, after 1883, became very rare. The industry of Professor Nokes (A History of the Crime of Blasphemy) enabled him to identify only five between 1883 and 1922. In the only one in which the summing up is reported in a legal journal, Rex v. Boulter (1908) 72 J.P. 188, Phillimore J. read to the jury the first part of the passage from Starkie (4th ed., p. 599) referring to wilful intention that I have cited above. In Rex v. Gott (1922) 16 Cr.App.R. 87 the summing up is reported only in "The Freethinker" for January 8, 1922. Avory J. is there recorded as being less specific in his citation from Lord Coleridge C.J., but refers, at p. 28, to the necessity for the words to be "... calculated and intended to insult the feelings and the deepest religious convictions of... persons amongst whom we live ..."
I accept that, on the state of the authorities, it is still open to this House to approve the stricter view of the law preferred by Stephen to the milder view adopted by Lord Coleridge C.J. in his summing-up in Reg. v. Ramsay and Foote, 15 Cox C.C. 231; but there are, as it seems to me, compelling reasons why we should not. The paucity of subsequent prosecutions for blasphemous libel does not enable one to point to any judicial developments in the legal concept of the mens rea required in this particular offence; but this does not necessarily mean that the law of blasphemous libel, now the offence has been revived after a lapse of 50 years, should be treated as having been immune from those significant changes in the general concept of mens rea in criminal law that have occurred in the last 100 years. All of these in my opinion point to the propriety of your Lordships adopting the milder view that the offence today is no longer one of strict liability, but is one requiring proof of what was called in Director of Public Prosecutions v. Beard  A.C. 479 a "specific intention," namely, to shock and arouse resentment among those who believe in or respect the Christian faith.
The first great change that influenced the general concept of mens rea after 1883 was procedural: the passing of the Criminal Evidence Act 1898, which enabled the accused to testify as a witness in his own defence. Prior to this his actual intention could only be ascertained as a matter of inference from what he was proved to have done and the circumstances in which he did it; and juries were instructed to apply what was referred to as the "presumption" that a man intends the natural consequence of his own acts. In the case of blasphemous libel if the jury found that words published by the accused, looked at objectively, had the tendency to produce the effect that it was the policy of the law to prevent, for example to shock and arouse resentment among believing Christians, then the application of the presumption was sufficient to convert this objective tendency into the actual intention of the accused. So the milder view of the law adopted by Lord Coleridge C.J. in 1883 might have had little practical effect if there had been any further prosecutions before the passing of the Act of 1898.
Although this Act enabled the accused to give direct evidence of his own intention and thus added to the available material upon which the jury's finding as to the accused's intention could be based, the presumption that a man intends the natural consequences of his own acts survived as a true presumption at least until the decision of this House in Woolmington v. Director of Public Prosecutions  A.C. 462, that is to say, it was an inference that the jury was bound to draw unless the accused overcame the evidential burden of proving facts of a kind regarded by the law as being sufficient to rebut it.
This presumption, which was of general application to offences in which the intention of the accused to produce a particular proscribed result formed an essential element in the mens rea, has had a chequered history since 1898, both before and after Woolmington. Discussion of it is mainly to be found in cases of homicide. There were two schools of thought among the judges as to how the presumption could be rebutted. The stricter school applied what has come to be known as the "objective test." It took the view that if the result proscribed was foreseeable by a reasonable man as being a likely consequence of his act, the presumption that the accused intended that result could only be rebutted by proof that he was insane or, in charges of murder brought after the passing of the Homicide Act 1957, that he suffered from some abnormality of mind. The onus of proving insanity or abnormality of mind lay on the accused. The milder school, which predominated 20 years ago, when I myself was trying criminal cases, applied the "subjective test." It treated the presumption, prior to Woolmington, as having the effect of casting upon the accused the evidential burden of proving that he had not intended the natural consequences of his act. After Woolmington the evidential burden cast on the accused was the lesser one of inducing doubt in the jury's mind as to whether such was his intention. These competing views as to the nature and effect of the presumption, and the authorities in support of each of them, are cited in the judgments of the Court of Criminal Appeal and of this House in Director of Public Prosecutions v. Smith  A.C. 290. In the Court of Criminal Appeal the milder "subjective test" prevailed; in this House the stricter "objective test" triumphed.
If the law as expounded by this House in Smith had remained unchanged and had been treated as applicable beyond the field of homicide to other crimes which required a specific intention - which, during the next six years, trial judges showed a uniform reluctance to do - blasphemous libel might well have reverted to what in effect would be an offence of strict liability. But Parliament stepped in to reinstate the milder view of the presumption by enacting section 8 of the Criminal Justice Act 1967:
"A court or jury, in determining whether a person has committed an offence, -
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."
This is now the law that your Lordships must apply. It throws no light upon the question whether an intention to produce a particular effect upon those to whom the blasphemous matter is published is an essential element in the offence of blasphemous libel; but, if it is, the section makes the "subjective test" of the accused's intention applicable and the evidence of the actual publisher as to what he intended or foresaw as the result of the publication becomes relevant and admissible to rebut the inference as to his intention that the jury might otherwise draw from what they themselves, as representing the reasonable man, considered would be the likely effect of what was published on those who saw and read it.
My Lords, if your Lordships were to hold that Lord Coleridge C.J. and those judges who preceded and followed him in directing juries that the accused's intention to shock and arouse resentment among believing Christians was a necessary element in the offence of blasphemous libel were wrong in doing so, this would effectively exclude that particular offence from the benefit of Parliament's general substitution of the subjective for the objective test in applying the presumption that a man intends the natural consequences of his acts; and blasphemous libel would revert to the exceptional category of crimes of strict liability from which, upon what is, to say the least, a plausible analysis of the contemporaneous authorities, it appeared to have escaped nearly a century ago. This would, in my view, be a retrograde step which could not be justified by any considerations of public policy.
The usual justification for creating by statute a criminal offence of strict liability, in which the prosecution need not prove mens rea as to one of the elements of the actus reus, is the threat that the actus reus of the offence poses to public health, public safety, public morals or public order. The very fact that there have been no prosecutions for blasphemous libel for more than 50 years is sufficient to dispose of any suggestion that in modern times a judicial decision to include this common law offence in this exceptional class of offences of strict liability could be justified upon grounds of public morals or public order.
The fear that, by retaining as a necessary element in the mens rea of the offence the intention of the publisher to shock and arouse resentment among believing Christians, those who are morally blameworthy will be unjustly acquitted appears to me to manifest a judicial distrust of the jury's capability of appreciating the meaning which in English criminal law is ascribed to the expression "intention" of the accused. When Stephen (History of the Criminal Taw of England) was writing in 1883, he did not then regard it as settled law that, where intention to produce a particular result was a necessary element of an offence, no distinction was to be drawn in law between the state of mind of one who did an act because he desired it to produce that particular result and the state of mind of one who, when he did the act, was aware that it was likely to produce that result but was prepared to take the risk that it might do so, in order to achieve some other purpose which provided his motive for doing what he did. It is by now well-settled law that both states of mind constitute "intention" in the sense in which that expression is used in the definition of a crime whether at common law or in a statute. Any doubts on this matter were finally laid to rest by the decision of this House in Reg. v. Hyam  A.C. 55.
Stephen, who deprecated this development of the criminal law as leading to a legal fiction, did not hesitate to express his own distrust of the jury's ability or willingness to distinguish between intention and motive. In writing of seditious libel he says (History of the Criminal Law of England, vol. II, pp. 360-361):
"A jury can hardly be expected to convict a man whose motives they approve and sympathise with, merely because they regard his intention with disapproval. An intention to produce disaffection is illegal, but the motive for such an intention may be one with which the jury would strongly sympathise, and in such a case it would be hard even to make them understand that an acquittal would be against their oath."
It had been just such judicial distrust of the reliability of juries that had led to the rule of procedure in the 18th century that was eventually abolished by Fox's Libel Act 1792. Dare I suggest that it was just such distrust that led to the decision of this House in Director of Public Prosecutions v. Smith  A.C. 290 as to the legal nature of the presumption that a man intends the natural consequences of his acts, that was reversed by the Criminal Justice Act 1967? If juries through sympathy do occasionally acquit a defendant whom the judge, applying the law strictly, would have convicted, it may be that that is one of the things that juries are for.
My own feeling of outrage at the blasphemous material with which the instant appeal is concerned makes it seem to me improbable that if Mr. Lemon had been permitted to give evidence of his intentions, the jury would have been left in any doubt that, whatever his motives in publishing them may have been, he knew full well that the poem and accompanying drawing were likely to shock and arouse resentment among believing Christians and indeed many unbelievers. Nevertheless, Mr. Lemon was entitled to his opportunity of sowing the seeds of doubt in the jury's mind. By the judge's ruling he was denied this opportunity. For this reason, if the decision had lain with me, I would have allowed the appeal.
VISCOUNT DILHORNE. My Lords, the appellants, Gay News Ltd. and Denis Lemon, were tried at the Central Criminal Court on an indictment which contained the following count:
"Statement of Offence Blasphemous libel. "Particulars of Offence Gay News Ltd. and Denis Lemon on a day or days unknown between May 1 and June 30, 1976, unlawfully and wickedly published or caused to be published in a newspaper called 'Gay News No. 96' a blasphemous libel concerning the Christian religion namely an obscene poem and illustration vilifying Christ in life and in His crucifixion."
After a trial which lasted for seven days they were found guilty by a majority verdict of ten to two. They appealed to the Court of Appeal (Criminal Division) on a number of grounds. Their appeal against conviction was dismissed and they now appeal with the leave of this House, the Court of Appeal having certified that a point of law of general public importance was involved.
By their verdict the jury showed that they were satisfied that the publication complained of, a poem by a Professor James Kirkup and a drawing published alongside it, vilified Christ in his life and crucifixion and was blasphemous. That finding has not been challenged in this appeal, nor could it have been with the slightest prospect of success.
Gay News Ltd. publish a newspaper for homosexuals called "Gay News" of which Denis Lemon is the editor. He holds the majority of the shares in that company. The jury's conclusion that they published the poem and the drawing was not challenged.
The only question to be decided in this appeal is what mens rea has to be established to justify conviction of the offence of publishing a blasphemous libel. The choice does not, in my opinion, lie between regarding the offence as one of strict liability or as one involving mens rea, for, as was said by Stephen in 1883 in his History of the Criminal Law of England, vol. II, p. 351:
"It is undoubtedly true that the definition of libel, like the definitions of nearly all other crimes, contains a mental element the existence of which must be found by a jury before a defendant can be convicted, but the important question is, What is that mental element? What is the intention which makes the act of publishing criminal? Is it the mere intention to publish written blame [sic], or is it an intention to produce by such a publication some particular evil effect?"
He said, at p. 353, that he knew of no authority for saying that the presence of any specific intention other than the intent to publish was necessary before Fox's Libel Act 1792. During the course of the proceedings in Parliament on the Bill which became that Act, a number of questions were put to the judges. In their answer to one of them they said (see Stephen's History of the Criminal Law of England, vol. II, p. 344):
"The crime consists in publishing a libel. A criminal intention in the writer is no part of the definition of libel at the common law. 'He who scattereth firebrands, arrows, and death,' which, if not a definition, is a very intelligible description of a libel, is ea ratione criminal; it is not incumbent on the prosecutor to prove his intent, and on his part he shall not be heard to say, 'Am I not in sport?'"
In Rex v. Dean of St. Asaph (Rex v. Shipley) (1783) 21 St.Tr. 847 Erskine had argued that it had to be proved that the Dean had had a seditious intent. That argument was rejected in that case as it was by the judges in their answer to Parliament. Prior to 1792 on a charge of publishing a seditious libel, the only questions left to the jury were (1) did the matter published bear the meaning ascribed to it in the indictment or information? and (2) was it published by the defendant? It was for the judges to rule whether the matter published, bearing the sense ascribed to it, was seditious, that being regarded as a question of law (see Rex v. Dean of St. Asaph). I do not doubt that the same procedure was followed when the charge was of publishing any other form of criminal libel.
It thus appears that prior to 1792 the specific intent of the accused was not an ingredient of the offence. Why was that? It is, I think, only explicable on the ground that the evil sought to be prevented by treating the publication of a libel as a criminal offence was the dissemination of libels. The mischief lay in the scattering of firebrands in the form of libels, and if what was published was held to be seditious, the person who published it or was responsible for its publication was guilty. It mattered not, if what had been published was seditious, that he had had no seditious intent (see Rex v. Dean of St. Asaph).
The next question for consideration is, was the definition of a criminal libel altered later, either by Fox's Libel Act 1792 or in the course of the development of the common law, so that, on a charge of publishing a seditious or a blasphemous libel, proof that the defendant had a seditious or blasphemous intent, as the case might be, was essential to establish guilt?
Fox's Libel Act was "An Act to remove doubts respecting the functions of juries in cases of libel." Its preamble stated that doubts had arisen whether on a trial "for the making or publishing any libel" the jury could give their verdict "upon the whole matter in issue" and its first section provided that they might do so and that they should not be directed to find a defendant guilty merely on proof of publication by him and of the sense ascribed to the matter published in the indictment or information.
Parke B. in Parmiter v. Coupland (1840) 6 M. & W. 105, 108 said that the Act was "declaratory ... and put prosecutions for libel on the same footing as other criminal cases." While the Act allowed a trial judge to tell the jury his opinion of the publication, after 1792 it was for the jury to decide what its character was.
I can see nothing in this Act "to remove doubts respecting the functions of juries" to justify the conclusion that it made a change in the definition of the offence of publishing a criminal libel. It does not mention intent, and if it had been the desire of Parliament to give statutory authority to the argument of Erskine in Rex v. Dean of St. Asaph, 21 St.Tr. 847 and to reject the opinion of the judges as to the ingredients of the offence, I regard it as inconceivable that the Act would have taken the form it did. Stephen, however (History of the Criminal Law of England, vol. II, p. 359), regarded it as "having enlarged the old definition of seditious libel by the addition of a reference to the specific intention of the libeller - to the purpose for which he wrote ..." and said that the Act assumed that the specific intentions of the defendant were material. I must confess my inability to find in the Act any basis for either conclusion. Professor Holdsworth in his History of English Law, 2nd ed. (1937) (vol. VIII, p. 342) recognised that the view that "the crime was, not so much the intentional publication of matter bearing the seditious or defamatory meaning ... as its publication with a seditious or malicious intent" began to appear in the 18th century. He did not attribute this to Fox's Libel Act but to the practice of filling indictments "with averments of every sort of bad intention on the part of the defendant," averments which in Stephen's opinion were surplusage.
The conclusion to which I have come is that if any change in the definition of the offence occurred after 1792, it did not result from Fox's Libel Act.
Stephen also asserted that since that Act the law had ever since been administered upon the supposition that the specific intentions of the defendant were material (History of the Criminal Law of England. vol. II, p. 359). My examination of the cases since 1792 leads me to think that that is not so and Professor Holdsworth said that the view that the publication had to be with a seditious or malicious intent was "not ... finally got rid of till the 19th century" (vol. VIII, p. 342). I infer from what he said that he thought that that view was erroneous.
It was not until 1967 by the Criminal Justice Act, section 8, that it was enacted that a court or jury should not be bound in law to infer that an accused intended or foresaw a result of his actions by reason only of its being a natural and probable result of those actions but that whether he intended or foresaw that result had to be decided by reference to all the evidence drawing such inferences from the evidence as appeared proper. If the conclusion was reached that a particular publication was blasphemous and it was proved that the defendant had published it, it could be presumed under the old law that he had done so with intent to blaspheme. In many cases it may be that the existence of such an intent was undeniable but the fact that a man might be presumed to have such an intent or had that intent does not in my opinion lead to the conclusion that the existence of such an intent was an essential element in the crime, though it may account for a reference being made in some cases in the course of a summing up to the accused's intent: see, for instance, The Three Trials of William Hone published by William Hone in 1818; Rex v. Carlile (Richard) (1819) 1 St.Tr.N.S. 1387; Reg. v. Moxon (1841) 4 St.Tr.N.S. 693; Reg. v. Holyoake (1842) 4 St.Tr.N.S. 1381.
In this appeal we are not, as I see it, concerned with how such an intent is to be established or its existence rebutted but whether it is an element in the offence. So with great respect to my noble and learned friend, Lord Diplock, I do not think that the terms of the Criminal Evidence Act 1898 and of section 8 of the Criminal Justice Act 1967 have any relevance to the question to be decided. If in a prosecution for the publication of a blasphemous libel, the accused's intent to blaspheme has to be proved, the Act of 1898 enables him to give evidence that he had no such intent and the Act of 1967 gives guidance as to the proof of such an intent.
What I regard as of great significance is that in none of what I regard as the leading cases on the publication of a blasphemous libel is there to be found any direction to the jury telling them that it had to be proved that the defendant intended to blaspheme, and I have not found in any decided case any criticism of the omission to do so.
In Rex v. Carlile (Mary) (1821) 1 St.Tr.N.S. 1033 in an intervention, at p. 1034, Best J. told the defendant that he would be happy to hear anything that she might urge to show that the publication was not a blasphemous libel and that she was not the publisher. It is not without significance that he said nothing about her intent particularly in view of the fact that in Rex v. Carlile (Richard), 1 St.Tr.N.S. 1387, tried only a short time before, the direction to the jury had referred to the accused's intent.
A case of more importance is Reg. v. Hetherington, 4 St.Tr.N.S. 563. Hetherington was prosecuted for publishing a blasphemous libel, it being alleged that such a libel had been sold from his shop by his employee. He was convicted. It was not suggested that it had to be shown that he had any blasphemous intent, nor, it is to be noted, that the employee had any such intent. It sufficed to show that what was published was a blasphemous libel and that he was responsible for its publication. This vicarious criminal liability is wholly inconsistent with an intent to engage in blasphemy being regarded at that time as an ingredient of the offence.
Two years later Parliament changed the law, not by enacting that proof of such an intent was necessary for a conviction but, by section 7 of Lord Campbell's Act 1843, providing that, on a trial for the publication of a libel where the publication was by the act of a person other than the defendant but with his authority, it was competent for the defendant to prove that the publication was made without his authority, consent or knowledge, and that the publication did not arise from want of care or caution on his part. As Stephen observes (History of the Criminal Law of England, vol. II, pp. 361-362) by virtue of this Act the "negligent publication of a libel by a bookseller who is ignorant of its contents" suffices to render him guilty and the fact that he may be found guilty if negligent is wholly inconsistent with the existence of any necessity to show that he intended to blaspheme. Again it may be noted that the intention of the person actually responsible for the publication was not relevant. If proof of such an intent was and is necessary, this Act did not serve any useful purpose.
I now come to the first of the two cases which I regard as the leading cases in this field. Prior to Reg. v. Bradlaugh (1883) 15 Cox C.C. 217 there had been very considerable controversy about what constituted blasphemy. In the 18th century and before, it appears to have been thought that any attack or criticism, no matter how reasonably expressed, on the fundamental principles of the Christian religion and any discussion hostile to the inspiration and perfect purity of the Scriptures was against the law. That was Stephen's view (History of the Criminal Law of England, vol. II, pp. 473 et seq.) but in this case it was rejected by Lord Coleridge C.J., who told the jury that he thought the law had been accurately stated in Starkie's Slander and Libel, 4th ed., p. 599, in the following terms, at p. 226:
"'A wilful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse offered to sacred subjects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals, - a state of apathy and indifference to the interests of society, - is the broad boundary between right and wrong."
At first sight the citation of this passage by Lord Coleridge C.J. might appear to give support to the view that such an intent on the part of the accused had to be proved but it is to be noted that Lord Coleridge C.J. began his summing up by telling the jury that there were two questions to be considered, first, whether the publications in question were blasphemous libels, and, secondly, whether, assuming them to be so, Mr. Bradlaugh was guilty of publishing them. He did not at any time tell the jury that they had to consider Mr. Bradlaugh's intent, an astonishing omission if he regarded it necessary to prove that he had a blasphemous intent, and the passage he cited from Starkie's Slander and Libel, 4th ed., p. 599, was cited by him as providing the test for determining whether or not the publication itself was blasphemous.
This, to my mind, is shown beyond doubt by the fact that, after citing Starkie, he said, at p. 226:
"That I apprehend to be a correct statement of the law, and if you think the broad boundary between right and wrong that is laid down in the passage, has been overpast in the articles which are the subject matter of this indictment, then it will be your duty to answer the first question ... against the defendant" and by his saying at the end of his summing up, at pp. 230-231:
"It is a question, first of all, whether these things are not in any point of view blasphemous libels, whether they are not calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live; and if so they are not to be tolerated any more than any other nuisance is tolerated. We must not do things that are outrages to the general feeling of propriety among the persons amongst whom we live. That is the first thing. Then the second thing is: Is Mr. Bradlaugh made out to have joined in the publication of these?"
"To say that the crime lies in the manner and not in the matter appears to me an attempt to evade and explain away a law which has no doubt ceased to be in harmony with the temper of the times" was Stephen's view (History of the Criminal Law of England, vol. II, p. 475) but since 1883 it has been accepted that it is the manner in which they are expressed that may constitute views expressed in a publication a blasphemous libel and this passage from Starkie's Slander and Libel, 4th ed., p. 599, has been relied on as providing the test for determining whether the publication exceeds that which is permissible. It is the intention revealed by the publication that may lead to its being held to be blasphemous. There was nothing in Lord Coleridge C.J.'s summing up to support the view that there was a third question for the jury to consider, namely the intent of the accused.
This case was followed by Reg. v. Ramsay and Foote, 48 L.T. 733, a case greatly relied on by the appellants, a case of great importance and also tried by Lord Coleridge C.J. Again he told the jury that there were two questions for them to consider:
"First, are these publications in themselves blasphemous libels? Secondly, if they are so, is the publication of them traced home to the defendants so that you can find them guilty?" (p. 734)
He went on to say, at p. 734: "The great point still remains, are these articles within the meaning of the law blasphemous libels?" Again he cited the passage from Starkie's Slander and Libel, 4th ed., p. 599, not as indicating that it must be shown that the accused had an intention to blaspheme but as providing the test for determining whether the articles exceeded the permissible bounds. Again Lord Coleridge C.J. gave no direction to the jury as to the intent of the accused, an omission which I regard as of great significance.
Lord Coleridge C.J.'s approach in this case was followed by Phillimore J. in Rex v. Boulter, 72 J.P. 188.
While it may be that the development of the law as to seditious libel has now taken a different course, in Rex v. Aldred (1900) 22 Cox C.C. 1 in the course of his summing up on a charge of publishing a seditious libel, Coleridge J. told the jury that the accused could not plead the innocence of his motive as a defence to the charge, telling them, at p. 3, that:
"The test is not either the truth of the language or the innocence of the motive with which he published it, but the test is this: was the language used calculated, or was it not, to promote public disorder or physical force or violence in a matter of state?" and if the language was calculated to promote public disorder,
"... then, whatever his motives, whatever his intentions, there would be evidence on which a jury might, on which I think a jury ought, and on which a jury would decide that he was guilty of a seditious publication ..." (p. 4.)
This direction was not followed in Rex v. Caunt (unreported), November 17, 1947, a seditious libel case tried in 1947. The transcript of that case shows that counsel agreed that a man published a seditious libel if he did so with a seditious intent and Birkett J. so directed the jury.
It is not necessary in this appeal to decide whether Birkett J.'s direction was right or unduly favourable to the accused and whether Rex v. Aldred, 22 Cox C.C. 1 was rightly decided for we are only concerned with blasphemous libel.
The last case to which I need refer is Rex v. Gott, reported in "The Freethinker" of January 8, 1922. Avory J. in his summing up cited the passage 1 have cited from the end of Lord Coleridge C.J.'s summing up in Reg. v. Bradlaugh, 15 Cox C.C. 217. He did not tell the jury that it was necessary to prove that the defendant had a blasphemous intent. He said nothing about the accused's intent. The case went to appeal but his omission to do so was not a ground of appeal or the subject of adverse comment by the Court of Criminal Appeal.
In the light of the authorities to which I have referred and for the reasons I have stated, I am unable to reach the conclusion that the ingredients of the offence of publishing a blasphemous libel have changed since 1792. Indeed, it would, I think, be surprising if they had. If it be accepted, as I think it must, that that which it is sought to prevent is the publication of blasphemous libels, the harm is done by their intentional publication, whether or not the publisher intended to blaspheme. To hold that it must be proved that he had that intent appears to me to be going some way to making the accused judge in his own cause. If Mr. Lemon had testified that he did not regard the poem and drawing as blasphemous, that he had no intention to blaspheme, and, it might be, that his intention was to promote the love and affection of some homosexuals for Our Lord, the jury properly directed would surely have been told that unless satisfied beyond reasonable doubt that he intended to blaspheme they should acquit, no matter how blasphemous they thought the publication. Whether or not they would have done so on such evidence is a matter of speculation on which views may differ.
The question we have to decide is a pure question of law and my conclusions thereon do not, I hope, evince any distrust of juries. The question here is what is the proper direction to give to them, not how they might act on such a direction; and distrust, which I do not have, of the way a jury might act, does not enter into it.
My Lords, for the reasons I have stated in my opinion the question certified should be answered in the affirmative. Guilt of the offence of publishing a blasphemous libel does not depend on the accused having an intent to blaspheme but on proof that the publication was intentional (or, in the case of a bookseller, negligent (Lord Campbell's Act 1843)) and that the matter published was blasphemous.
I would dismiss these appeals.
LORD EDMUND-DAVIES. My Lords, in June 1976 there appeared in an issue of "Gay News," a newspaper published seemingly for male homosexuals in the main, a poem entitled "The Love that Dares to Speak its Name" and an accompanying drawing. The nature of the poem is sufficiently indicated by Roskill L.J. who said in the Court of Appeal  Q.B. 10, 12 that it "purports to describe in explicit detail acts of sodomy and fellatio with the body of Christ immediately after the moment of His death." The publishers of the newspaper were Gay News Ltd., its editor Mr. Lemon. The publication led to their indictment for blasphemous libel, the particulars of the charge being that they had
"... unlawfully and wickedly published or caused to be published in a newspaper called 'Gay News No. 96' a blasphemous libel concerning the Christian religion namely an obscene poem and illustration vilifying Christ in His life and in His crucifixion."
Before Judge King-Hamilton Q.C. and a jury they were, by a majority verdict, both convicted and sentenced.
The Court of Appeal upheld both convictions and, while refusing leave to appeal, certified in the following terms that a point of law of general public importance was involved:
"Was the learned trial judge correct (as the Court of Appeal held) first in ruling and then in directing the jury that in order to secure the conviction of the appellants for publishing a blasphemous libel: (1) it was sufficient if the jury took the view that the publication complained of vilified Christ in His life and crucifixion, and (2) it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel?"
By your Lordships' leave, the defendants now appeal to this House.
By far the principal contest during the hearing of this appeal was that which gave rise to the certified question. The actus reus of the offence charged was said to be that the published poem and illustration vilified Christ, and in the course of a summing up which, apart from its treatment of the contested matter of intent, has rightly been regarded as a model of its kind, the learned judge correctly directed the jury on the matter of obscenity and vilification. By their verdict they found that the publication, objectively considered, was in fact blasphemous. It followed that, as Roskill L.J. emphasised  Q.B. 10, 14, any quashing of the convictions
"... would not in any way involve overturning the conclusions implicit in the jury's verdict of guilty that the allegedly offending poem and drawing was obscene in the ordinary meaning of that word, or that it 'vilified Christ in His life and crucifixion' in the ordinary meaning of that phrase."
But was that enough to justify the verdicts of guilty? The Court of Appeal thought it was, despite the strong contrary submission of defendants' counsel. Now, although the certified question of law related solely to mens rea, it cannot be answered without regard being had to the actus reus of blasphemous libel. Nor should one overlook the fact that seditious libel, blasphemous libel, obscene libel and defamatory libel all had their common origin in the Star Chamber, which (in the words of J. R. Spencer  Crim.L.R. 383),
"... regarded with the deepest suspicion the printed word in general, and anything which looked like criticism of the established institutions of Church or State in particular."
It was on the abolition of the Star Chamber in 1641 that the Court of King's Bench inherited its criminal jurisdiction, and shortly after the Restoration it tried the dramatist Sir Charles Sedley for indecency and blasphemy (Rex v. Sedley (1663) 17 St.Tr. 155; Pepys' Diary, July 1, 1663). For centuries thereafter
"... a published attack on a high state official ... might be prosecuted as either a seditious or a defamatory libel, and an attack on the Church or its doctrine might be prosecuted as either a blasphemous or a seditious libel. What the attack in question was called seems to have depended largely on the taste in vituperative epithet of the man who drafted the indictment or information. Thus in one case a man was prosecuted for seditious rather than blasphemous libel when he published a book contrary to the teaching of the Church of England: Rex v. Keach (1665) 6 St.Tr. 701."
As to the actus reus, at first all open expressions of a disbelief in Christianity were punishable, the bench repeatedly laying down the plain principle that the public importance of the Christian religion was so great that no one was to be allowed to deny its truth; just as in Reg. v. Bedford (early 18th century, noted in Bacon's Abridgement, 7th ed. (1832), vol. 5, p. 200) a man was convicted of the kindred offence of seditious libel simply for discussing, civilly and gravely and "without any reflection whatever upon any part of the then existing government," the respective advantages of hereditary and elective monarchies. As late as 1841 the Commissioners on Criminal Law reported that "The law distinctly forbids all denial of the Christian religion," but nevertheless added that in actual practice "... the course has been to withhold the application of the penal law unless insulting language is used." These last words mark the second stage in the development of the actus reus of blasphemy, and echo the ruling of Lord Denman C.J. a year earlier in Reg. v. Hetherington, 4 St.Tr.N.S. 563, 590 that criminality lies "... not altogether [on] a matter of opinion, but that it must be, in a great degree, a question as to the tone, and style, and spirit, ..."
My Lords, during the long years when the actus reus of blasphemy was constituted by the mere denial (however decently expressed) of the basic tenets of Christianity or, later, the couching of that denial in scurrilous language, there was no necessity to explore the intention of the accused, for his words were regarded as revealing in themselves what that intention was. And that was so notwithstanding the fact that indictments for blasphemy habitually contained assertions regarding the defendant's intention. Let me illustrate. One finds in the 7th edition of Archbold's Pleading and Evidence (1838), p. 501, an indictment charging that the accused
"... wickedly and profanely devising and intending to bring the Holy Scriptures and the Christian religion into disbelief and contempt among the people of this kingdom ... unlawfully and wickedly did compose, print, and publish; ... a certain scandalous, impious, blasphemous, and profane libel ..."
The appended note gives a cross-reference to an indictment for seditious libel, and, notwithstanding an allegation in the latter of "intending to stir up and excite discontents and seditions amongst His Majesty's subjects." the author observed:
"Whether the defendant really intended, by his publication, to alienate the affections of the people from the Government is ... immaterial; if the publication be calculated to have that effect, it is a seditious libel. Rex v. Burdett (1820) 4 B. & Ald. 95; Rex v. Harvey and Chapman (1823) 2 B. & C. 257."
Such an assertion in such a book affords a good illustration of the laxity of language employed, certainly up to Lord Campbell's Libel Act of 1843. And it is worthwhile considering at some little length the two cases cited in support of the author's proposition that seditious libel was regarded, in effect, as a crime of strict liability, in order to determine whether in reality they did anything of the sort. In my judgment, they were, if anything, authorities for the directly contrary proposition. Thus, in Rex v. Burdett, 4 B. & Ald. 95 Best J. directed the jury regarding an allegedly seditious libel
"... that the question whether it was published with the intention alleged in the information, was peculiarly for their consideration; but I added, that the intention was to be collected from the paper itself, unless the import of the paper were explained by the mode of publication, or any other circumstances. I added that if it appeared that the contents of the paper were likely to excite sedition and disaffection, the defendant must be presumed to intend that which his act was likely to produce. I told them further, that if they should be of opinion that such was the intention of the defendant, then it was my duty to declare that, in my opinion, such a paper, published with such an intent, was a libel; leaving it, however, to them ... to find whether it was a libel or not."
Now that direction (later upheld by a full court of four judges on a motion for a new trial) in no sense brushed aside as irrelevant the intention of the accused publisher. On the contrary, it stressed the importance of his intention, while at the same time instructing the jury, in effect, that (as Lord Ellenborough C.J. had recently said in Rex v. Dixon (1814) 3 M. & S. 11, 15), it is a
"universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from doing the act. ..."
A similar comment can properly be made regarding the second case cited by Archbold, Rex v. Harvey and Chapman, 2 B. & C. 257, where the proprietor, printer and publisher of a newspaper were charged in relation to a statement that they had good authority for asserting that King George IV laboured under mental infirmity. The defendants admitted that it was false to say that they had good authority for making the assertion, but urged that they nevertheless believed it to be true, in the light of widely prevalent rumours. Having directed the jury that, in his opinion, the publication was a libel calculated to vilify His Majesty, Abbott C.J. added, at p. 258 (as Fox's Libel Act 1792 required him to do): "But you have a right to exercise your own judgment upon the publication, and I invite you so to do." After a retirement, the jury returned and asked for the Lord Chief Justice's opinion whether or not it was necessary that there should be a malicious intention to constitute a libel. They were thereupon told, at p. 259:
"The man who publishes slanderous matter, in its nature calculated to defame and vilify another, must be presumed to have intended to do that which the publication is calculated to bring about, unless he can show the contrary; and it is for him to show the contrary.
Subsequently, on the hearing of an unsuccessful motion for a new trial on the ground of misdirection, Bayley and Best JJ., at pp. 261, 268 made similar observations in upholding Abbott C.J.'s direction.
My Lords, the admirable survey of many of the decided cases (but not including the two last-mentioned) contained in the Court of Appeal judgment delivered by Roskill L.J. fortunately renders it unnecessary to go through them again. But of that thought-provoking judgment I have to say respectfully that the one-sentence reference ( Q.B. 10, 25E) to the presumption as to intending natural consequences pays inadequate attention to the great importance of that concept in evaluating many of the decided cases, and one which goes far to explain the frequent absence of a clear direction regarding the necessity of proving a subjective intention, a point to which the Court of Appeal attached much weight. Another insufficiently appreciated factor, as it appears to me, is that until Lord Campbell's Libel Act 1843 there existed what Lord Coleridge C.J. described in Reg. v. Bradlaugh, 15 COX C.C. 217, 227-228 as
"... the anomaly that whereas in no other case in the criminal law was a man responsible for the act of the agent unless he had authorised the particular act, yet it had been held that in the case of a libel a man might be criminally responsible for the act of an agent to whom he had given only a general authority."
The full vigour of this doctrine of vicarious responsibility was reduced by section 7 of the Act of 1843, and the significant impact of the statutory change was described by Lush J. in Reg. v. Holbrook (1878) 4 Q.B.D. 42, 50-51 in the following terms:
"The effect of it read by the light of previous decisions, and read so as to make it remedial, must be that an authority from the proprietor of a newspaper to the editor to publish what is libellous is no longer to be, as it formerly was, a presumption of law, but a question of fact. Before the Act the only question of fact was whether the defendant authorised the publication of the paper; now, it is whether he authorised the publication of the libel ... when he has proved that the literary department was intrusted entirely to an editor, the question what was the extent of the authority which that employment involved is to be tried upon the principle which is applicable to all other questions of authority. And I think the jury ought to be told, in this as in every other case, that criminal intention is not to be presumed, but is to be proved, and that, in the absence of any evidence to the contrary, a person who employs another to do a lawful act is to be taken to authorise him to do it in a lawful and not in an unlawful manner."
This passage, expressly approved of five years later by Lord Coleridge C.J. in Reg. v. Bradlaugh, 15 Cox C.C. 217, 228, indicated that the change was thus a considerable one. Mr. Richard Buxton has shown in a valuable article  Crim.L.R. 673, to which I desire to acknowledge my indebtedness, that it is essential to have it in mind in considering such pre-1843 cases as Reg. v. Hetherington, 4 St.Tr.N.S. 563, which the Court of Appeal regarded as important. In particular they stressed  Q.B. 10, 23 that Lord Denman C.J. had directed the jury, at p. 593, that:
"The question before you, and the only question for you to decide is a matter of fact and of opinion. Aye or no, is this in your opinion a blasphemous publication, and has the defendant in point of fact issued it knowingly and wilfully? If these questions are answered in the affirmative, it is the duty of the jury to pronounce a verdict accordingly."
But what needs to be remembered is that, when Hetherington was tried in 1840, not only was he incompetent to testify as to his intention, or, indeed, as to anything else, but he was liable to be convicted even had he lacked all knowledge that he had even published a blasphemy, and it would accordingly have been idle to investigate his intention in publishing. And as many of the reported cases of blasphemous libel up to that time involved publishers rather than authors, Mr. Buxton rightly comments, at p. 676, that:
"... the special 'publisher' rule was likely to restrict any general statements [by judges] that might otherwise have been made about the mental element in blasphemy. The surprising thing, in fact, is that references to intention are found even in these unpromising circumstances. And with the abolition of the special rule for publishers in 1843 circumstances became more propitious for a re-statement of the elements of blasphemy in terms of subjective responsibility; ..."
I have already referred to two pre-1843 cases where, far from intention being brushed aside as irrelevant, the jury were directed that they could and should deal with it on the basis of the presumption as to probable consequences. And in 1812 Mr. Starkie (later Downing Professor of Law at Cambridge, one of the Criminal Law Commissioners both in 1833 and 1845, and co-draftsman with Lord Campbell of the Libel Act 1843) declared in his highly esteemed text book on the law of libel (Starkie's Slander and Libel, p. 590) that "The law visits not the honest errors, but the malice of mankind" and (as Professor Courtney Kenny later wrote in 1922 (1 C.L.J. 127, 136)
"... urged that the penalties of blasphemy should be limited to cases where the offender intended either to insult sacred subjects by contumelious language or to mislead his readers by wilful misrepresentation."
Fourteen years after the Act of 1843, Coleridge J. accepted in Reg. v. Pooley (1857) 8 St.Tr.N.S. 1089 the following definition of the offence of blasphemy contained in Stephen's Digest of the Criminal Law (art. 179):
"'Every publication ... which contains matter relating to God, Jesus Christ, the Bible, or the Book of Common Prayer, and intended to wound the feelings of mankind, or to excite contempt and hatred against the Church by law established or to promote immorality.'" (Italics supplied.)
But the Court of Appeal would presumably have held that the only mental element there being referred to was the defendant's decision to publish the words complained of. That was seemingly the view they took of the two important cases on blasphemous libel consecutively decided by Lord Coleridge C.J. in 1883.
My noble and learned friend, Viscount Dilhorne, has emphasised that in the first of these (Reg. v. Bradlaugh, 15 Cox C.C. 217) the Lord Chief Justice directed the jury in these words, at p. 225:
"The question really and substantially raised is one and only one, whether Mr. Bradlaugh published these libels. Of course the two questions are legally raised: first, whether the publications which are the subject matter of indictment are or are not blasphemous libels; the second is whether, assuming they are so, Mr. Bradlaugh is guilty of publishing them so as to be amenable to the criminal law?"
The Lord Chief Justice used similar words when directing the jury a few days later in the second trial, that of Reg v. Ramsay and Foote, 15 Cox C.C. 231, 233, and my noble and learned friend considers it astonishing that in these two passages there should be no reference to the defendant's intent if it be the law that intent is in truth an essential ingredient in blasphemous libel. My Lords, my submission is that, when the reports of the two cases are considered in their entirety, the inescapable conclusion is that such was indeed Lord Coleridge C.J.'s view of the law.
Addressing himself to his first question in Reg. v. Bradlaugh, Lord Coleridge C.J. said, at p. 225: "To the law on that subject laid down by Mr. Starkie [Starkie's Slander and Libel, 4th ed., p. 599] (and read by Sir H. Giffard [for the Crown]) I entirely assent." To what was he assenting? He made this clear beyond doubt by saying, at p. 226:
"The law has been laid down, in my judgment, with perfect accuracy in the passage read from the work of Mr. Starkie - 'The wilful intention to insult and mislead others by means of licentious and contumelious abuse offered to sacred subjects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals - a state of apathy and indifference to the interests of society - is the broad boundary between right and wrong."
And, by way of applying the law as laid down by Starkie, Lord Coleridge C.J. concluded, at p. 230:
"It is a question, first of all, whether these things are not in any point of view blasphemous libels, whether they are not calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live; and if so they are not be tolerated any more than any other nuisance is tolerated." (Italics supplied.)
Turning now to Reg. v. Ramsay and Foote, after asking the question, "Are these passages within the meaning of the law blasphemous libels?" Lord Coleridge C.J. directed the jury in clear terms, at p. 235, that "... to asperse the truth of Christianity cannot per se be sufficient to sustain a criminal prosecution for blasphemy." What, then, did he consider was further required? For answer, he again turned to what he described as one of "the best books of authority" - Starkie's Slander and Libel - and quoted, at p. 236, a passage from the 4th edition, p. 599 dealing with "'... the splendid advantages which result to religion and truth from the exertions of free and unfettered minds'" and continuing with these words:
"'It is the mischievous abuse of this state of intellectual liberty which calls for penal censure. The law visits not the honest errors, but the malice of mankind.'"
There then followed those words which Lord Coleridge C.J. had quoted a few days earlier in Reg. v. Bradlaugh, 15 Cox C.C. 217, 226, beginning with "A wilful intention to pervert, insult, and mislead others ..." And the matter was not left to rest even there, for in the final passage of his summing up, he said, at pp. 238-239:
"The defendant Foote has admitted that these publications were intended to be attacks on Christianity and on the Hebrew Scriptures, and he has cited a number of passages from approved writers which he says are to the same effect ... But no one can fail to see the difference between the works ... [which] have been quoted and the language used in the publications now before us; and I am obliged to say that it is a difference not only in degree, but in kind and nature. There is a grave and earnest tone, a reverent - perhaps I might even say a religious - spirit about the very attacks on Christianity itself which we find in the authors referred to, which shows that what they aimed at was not insult to the opinions of the majority of mankind nor to Christianity itself; but real, quiet, earnest pursuit of truth." (Italics supplied.)
The passages quoted from Starkie and their setting in the direction to the jury, both in Bradlaugh and in Ramsay and Foote, surely went beyond mere consideration of the language of controversy. They made clear that the proper answer to the first question posed by Lord Coleridge C.J. in each of the two cases depended not merely on the words used but on the state of mind of the person using them. In other words, what was his "aim"? Yet the Court of Appeal concluded  Q.B. 10. 27 that:
"Intent in the sense for which the defendants have contended was not a live issue in Reg. v. Ramsay and Foote, 15 cox c.c. 231, for Foote ... had admitted his intention. It is, we think, a legitimate comment that since this was the position in that case, the passages in Starkie, 4th ed. (1876), p. 599 approved by Lord Coleridge C.J. cannot have been thought by Lord Coleridge C.J. to have borne the meaning contended for by the defendants."
But, as to this, the only admission was that the publications complained of "... were intended to be attacks on Christianity and on the Hebrew Scriptures" (15 COX C.C. 231, 238). And Mr. Buxton has rightly observed  Crim.L.R. 673, 680:
"But Lord Coleridge C.J. thought that simply to attack Christianity did not constitute the actus reus of blasphemy. It therefore cannot be assumed that Foote, by admitting what he did, thereby also admitted an intent to blaspheme, as defined by Lord Coleridge C.J."
In my judgment, accordingly, the intention of the defendants in publishing was assuredly a live issue in both trials, and Lord Coleridge C.J. made it clear that such was his view of the law.
Between Reg. v. Ramsay and Foote, 15 COX C.C. 231 and Rex v. Gott (1922, unreported save briefly in 16 Cr.App.R. 87) there were very few blasphemy prosecutions, and none thereafter until the present trial. Of the intervening cases, the direction of Phillimore J. in Rex v. Boulter, 72 J.P. 188 is, despite the misleadingly emphatic headnote, equivocal as to the necessity for intention, and the same is true of Avory J.'s direction in Rex v. Gott itself ("The Freethinker," January 8, 1922, p. 28). But it was the latter decision which sparked off Professor Kenny's survey of the relevant law, which led him to the conclusion that
"... in criminal proceedings, guilt can only arise where the offensive matter was published with full knowledge of its contents and with readiness to offend. 'Wilful intention,' as Professor Starkie said, 'is the criterion and test of guilt'" (1922) 1 C.L.J. 127, 140.
My Lords, we have seen that sedition and blasphemy were in origin twin types of criminal libel, the latter consisting in its earliest stage as any attack upon the Christian Church, as part of the state, and Lord Hale C.J. declaring in Taylor's case (1676) 1 Vent. 293 that "Christianity is parcel of the laws of England." I understood the respondents to this appeal to accept that, in relation to sedition, the intention of the defendant is an essential ingredient, and such cases as Reg. v. Burns (1886) 16 Cox C.C. 355, 360 and Rex v. Caunt (unreported) proceeding upon that basis. It would be inexplicable were intention relevant in the one case but not in the other. Reg. v. Burns is also important as illustrating the lessening respect paid, as the 19th century progressed, to the presumption as to intention, Cave J. saying, at p. 364:
"In order to make out the offence of speaking seditious words there must be a criminal intent upon the part of the accused, they must be words spoken with a seditious intent; and, although it is a good working rule, to say that a man must be taken to intend the natural consequences of his acts, and it is very proper to ask a jury to infer, if there is nothing to show the contrary, that he did intend the natural consequences of his acts, yet, if it is shown from other circumstances that he did not actually intend them, I do not see how you can ask a jury to act upon what has then become a legal fiction."
My Lords, allow me to summarise. This appeal raises the questions whether it is sufficient for conviction that the defendants intended to publish the blasphemous words for which they were indicted, as the learned trial judge held. Or was it necessary that they should have also known of their offensive character and have intended to offend, alternatively that they published with reckless indifference to the consequences of publication? Different answers to these questions were called for at different stages in the evolution of the law of blasphemy. In the earliest stage it was clearly a crime of strict liability and consisted merely of any attack upon the Christian Church and its tenets. In the second stage the original harshness of the law was ameliorated, and the attack was not punishable unless expressed in intemperate or scurrilous language. In the third stage, opinions were mixed. Some judges held that the subjective intention of author or publisher was irrelevant, others that it was of the greatest materiality. The stricter view was explicable on several grounds:
(1) By reason of the presumption of intention as to the probable consequences of one's actions, which, though increasingly unpopular, was not finally eliminated until section 8 of the Criminal Justice Act 1967 was enacted.
(2) By reason of the fact that, as until Fox's Libel Act 1792 it was for the judge (and not the jury) to decide whether a publication was blasphemous, he was relieved of any necessity for directing the jury as to intention. In the view of Stephen (History of the Criminal Law of England (vol. II, pp. 358-9):
"The effect of the Libel Act ... was thus to embody in the definition of the crime of seditious libel the existence of some kind of bad intention on the part of the offender. ... And a seditious libel might since the passing of that Act be defined (in general terms) as blame of public men, laws, or institutions, published with an illegal intention on the part of the publisher."
And, as Nokes pointed out (History of the Crime of Blasphemy, p. 80): "... there is no distinction in the Act between seditious and blasphemous libels; ..."
(3) By reason of the doctrine of vicarious responsibility, earlier discussed, which subsisted in an unqualified form until Lord Campbell's Libel Act 1843.
(4) By reason of the fact that, until the Criminal Evidence Act 1898, persons accused of blasphemy were incompetent to give evidence on their own behalf.
The preponderance of authority was nevertheless increasingly and markedly in favour of the view that intention to blaspheme must be established if conviction was to ensue. In my judgment, such is now indeed the law - and any 20th-century cases in conflict with it - such as Rex v. Aldred, 22 Cox C.C. 1 - should be regarded as wrongly decided.
Something should, however, be said about certain practical difficulties suggested by the Court of Appeal  Q.B. 10 in the way of adopting this final view of the law. They asked, at pp. 27-28:
"If subjective intention were a necessary ingredient in this offence, whose intention has to be proved? Is it the intention of anyone concerned in the publication, or only the intention of the accused? If it is only his, could it be a defence that his only intention when putting the offending matter into circulation was to make money, or to inform the world of the writings of another? If it be the intention of the author that matters, then the fate of the publisher might depend, at least in the case of a dead writer, upon an intention difficult to ascertain save from the language of that which was known to have been written or spoken in the past."
My Lords, these are, with respect, imagined difficulties, and the answers to such questions are, I think, clear. The subjective intention to blaspheme or recklessness as to the blasphemous effect of the words published must be brought home in turn to each person charged. If he is the author, the all-important question is what was his state of mind in supplying the material for publication; if he is the editor or publisher of the words of another, it is as to their state of mind in playing their respective roles in the act of publishing. And it would be nihil ad rem that one or all of them were motivated by, for example, the desire to make money or to make known the blasphemous words of another.
My Lords, even were the reported cases so divided in their effect as to render it impossible to say that the necessity of a subjective intention to blaspheme has hitherto been decisively established over the years, I should urge that this House, being free in such circumstances to declare what the law is, should now hold that such is indeed the law. My noble and learned friend Lord Diplock has rightly observed that section 8 of the Criminal Justice Act 1967 is concerned simply with how intention is to be proved when intention is of relevance, and says nothing about when intention is to be proved. Such indeed was the view I expressed in Reg. v. Majewski  A.C. 443, and I adhere to it. But the section is nevertheless of significance in relation to the present proceedings in its manifestation of conformity with the increasing tendency in our law to move away from strict liability in relation both to statutory offences (see Sweet v. Parsley  A.C. 132, especially at pp. 149C and 163C) and to common law crimes (see Lim Chin Aik v. The Queen  A.C. 160, 172 and Reg. v. Morgan  A.C. 182, 210G-H). For in truth it is with strict liability that we are concerned in this appeal, for "... an offence is regarded - and properly regarded - as one of strict liability if no mens rea need be proved as to a single element in the actus reus" (Smith and Hogan, Criminal Law, 4th ed. (1978), p. 79).
There are those who dislike this tendency. But to treat as irrelevant the state of mind of a person charged with blasphemy would be to take a backward step in the evolution of a humane code. Unfortunately, despite the exemplary care taken by the learned trial judge, lacking as he did the prolonged and patient probing into the law of which this House has had the benefit, I am afraid that that is what has happened in this case. Accordingly, despite my strong feelings of revulsion over this deplorable publication, I find myself most reluctantly compelled to answer the certified question in the negative and to hold that these appeals against conviction should be allowed.
For the sake of completeness, and so as to show that I have not overlooked the point, I should add that I am at one with the Court of Appeal in upholding as "faultless" the learned judge's outright rejection of a further submission for some of the appellants that, in order to justify a conviction for blasphemous libel, the publication, when objectively considered, must tend to lead to a breach of the peace.
LORD RUSSELL OF KILLOWEN. My Lords, it must be made at the outset absolutely clear that it is accepted by the appellants that the publication of a blasphemous libel is still a criminal offence: it is no part of your Lordships' function in this case to hold the contrary. Moreover, if the only ingredient of the offence is the knowing publication of matter which will in fact shock and outrage the feelings of ordinary Christians it must equally be made clear that, as the jury found, this publication was a blasphemous libel. It is not for your Lordships to agree or disagree with that finding: though speaking for myself as an ordinary Christian, I found the publication quite appallingly shocking and outrageous.
There is in this case one question only: whether an intention in the publisher to shock and outrage, or an indifference to a recognised possibility that it will do so, is a necessary ingredient of the offence. If it is such an ingredient, then the refusal of the trial judge to allow Mr. Lemon to give evidence of his subjective intention was an error in law: and however much one may doubt, as I do, that Mr. Lemon would have been able to persuade a jury that he did not think that the publication was likely to shock and outrage, yet if the direction was thus erroneous in law I would not consider that the conviction should be supported under the proviso [to section 2 (1) of the Criminal Appeal Act 1968].
It should be noted that the only evidence which could be said to be erroneously excluded was that of Mr. Lemon's state of mind. Of this only he could speak. "Expert" evidence would surely have been irrelevant, on any footing. I do not doubt that he had a motive in making this publication which seemed to him to justify it; supposedly (though I am guessing) that those of his usual readers who were active or passive homosexuals should not feel that they were for that reason excluded from the fellowship of Christianity. But whether intention is or is not an ingredient of the offence, motive is certainly not a defence.
So I return to the question of intent. The authorities embrace an abundance of apparently contradictory or ambivalent comments. There is no authority in your Lordships' House on the point. The question is open for decision. I do not, with all respect to the speech of my noble and learned friend Lord Diplock, consider that the question is whether this is an offence of strict liability. It is necessary that the editor or publisher should be aware of that which he publishes. Indeed that was the function of Lord Campbell's Act (1843), which assumed the law to be that an intention in the accused to blaspheme was not an ingredient of the offence, since it removed by statute a vicarious liability for an act of publication done by another without authority.
Why then should this House, faced with a deliberate publication of that which a jury with every justification has held to be a blasphemous libel, consider that it should be for the prosecution to prove, presumably beyond reasonable doubt, that the accused recognised and intended it to be such or regarded it as immaterial whether it was? I see no ground for that. It does not to my mind make sense: and I consider that sense should retain a function in our criminal law. The reason why the law considers that the publication of a blasphemous libel is an offence is that the law considers that such publication should not take place. And if it takes place, and the publication is deliberate, I see no justification for holding that there is no offence when the publisher is incapable for some reason particular to himself of agreeing with a jury on the true nature of the publication.
Accordingly I would answer the certified question of law in the affirmative and dismiss the appeal, and order the respondent's costs to be paid out of public funds.
LORD SCARMAN. My Lords, I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquility of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. Professor Kenny in his brilliant article on "The Evolution of the Law of Blasphemy" (1922) 1 C.L.J. 127 gives two quotations which are very relevant to British society today. When the Home Secretary (Mr. Shortt) was pressed to remit the sentence on Gott after the dismissal of his appeal (Rex v. Gott, 16 Cr.App.R. 87), he wrote:
"'The common law does not interfere with the free expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country. Mr. Shortt could not support any proposal for an alteration of the common law which would permit such outrages on the feelings of others as those of which Gott was found to be guilty '" ((1922) 1 C.L.J. 127.)
When nearly a century earlier Lord Macaulay protested in Parliament against the way the blasphemy laws were then administered, he added (Speeches, p. 116): "If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque" (1922) C.L.J. 127, 135. When Macaulay became a legislator in India, he saw to it that the law protected the religious feelings of all. In those days India was a plural society: today the United Kingdom is also.
I have permitted myself these general observations at the outset of my opinion because, my Lords, they determine my approach to this appeal. I will not lend my voice to a view of the law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religious feeling from outrage and insult. My criticism of the common law offence of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history.
While in my judgment it is not open to your Lordships' House, even under the Lord Chancellor's policy announcement of July 26, 1966 (H.L. Debates, July 26, 1966, col. 677) [Practice Statement (Judicial Precedent)  1 W.L.R. 1234], to extend the law beyond the limits recognised by the House in Bowman v. Secular Society Ltd.  A.C. 406, or to make by judicial decision the comprehensive reform of the law which I believe to be beneficial, this appeal does offer your Lordships the opportunity of stating the existing law in a form conducive to the social conditions of the late 20th century rather than to those of the 17th, 18th, or even the 19th century. This is, my Lords, no mere opportunity: it is a duty. As Lord Sumner said in his historic speech in Bowman's case, at pp. 446-467:
"The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which 150 years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to society is a question of the times, and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion, as known to the law, which prevents us from varying their application to the particular circumstances of our time in accordance with that experience."
The point of law certified by the Court of Appeal as of general public importance upon which the House gave leave to appeal is in these terms:
"Was the learned trial judge correct (as the Court of Appeal held) first in ruling and then in directing the jury that in order to secure the conviction of the appellants for publishing a blasphemous libel: (1) it was sufficient if the jury took the view that the publication complained of vilified Christ in His life and crucifixion; and (2) it was not necessary for the Crown to establish any further intention on the part of the appellants beyond an intention to publish that which in the jury's view was a blasphemous libel?"
The appellants' case is that it was necessary for the Crown to establish a further specific intention, and their counsel formulated the intention as follows:
"... the intention to attack the Christian religion so violently or scurrilously as to insult the adherents of the Christian religion to such an extent that a breach of the peace is likely."
The Crown led no evidence to prove any intention other than the intention to publish the words complained of: and the judge directed the jury in effect that any such evidence would be irrelevant. If, therefore, the appellants are correct in law that an intention beyond that of publication must be proved, it matters not whether their counsel have accurately formulated the specific intention required. Their convictions must be quashed.
The appellants Gay News Ltd. publish a newspaper for homosexuals called "Gay News." The appellant Mr. Lemon is its editor. An issue of the paper, published in 1976, contained a poem entitled "The Love That Dares to Speak its Name" written by Professor James Kirkup. The poem was printed with an illustration of the Crucifixion featuring the body of Christ in the embrace of a Roman centurion. The appellants were indicted for the offence of blasphemous libel. They were tried in July 1977 at the Central Criminal Court before Judge King-Hamilton and a jury. After a masterly summing up (for such it was, whether or not correct on the question of intention), the jury by a majority found both appellants guilty. Upon appeal, the Court of Appeal upheld the convictions.
In a judgment (delivered by Roskill L.J.) remarkable for its learning and historical research the Court of Appeal reached the conclusion that for a defendant to be guilty of publishing a blasphemous libel it was not necessary for the Crown to prove an intent other than an intent to publish the words of which complaint was made. It was enough, the court held, to prove that the defendant intended to publish that which offended.
In your Lordships' House it was recognised that no challenge could effectually be made against the finding of the jury that the poem and illustration were blasphemous. Equally it has to be recognised that no intention to insult or outrage has been established by the modern criteria of English law. No doubt because the judge ruled that any intention other than an intention to publish was irrelevant, Mr. Lemon did not give evidence. Had he given evidence, I have little doubt that he would have said, and truly said, that he had no intention to shock Christian believers but that he published the poem not to offend Christians but to comfort practising homosexuals by encouraging them to feel that there was room for them in the Christian religion. I am prepared to assume the honesty and sincerity of his motives.
The "actus reus" of the offence of blasphemy consists of the publication of words spoken or written. In the 17th century words challenging or questioning the doctrines of the established church were regarded as blasphemy: for "... Christianity is parcel of the laws of England; and therefore to reproach the Christian religion, is to speak in subversion of the law," as Sir Mathew Hale put it in Taylor's case, 1 Vent. 293. His view was accepted in 1729 in Rex v. Woolston (Fitzg. 64, 66), though Raymond C.J. did add: "we do not meddle with any differences of opinion - ... we interpose only when the very root of Christianity itself is struck at."
Nevertheless in almost all the reported cases (including Taylor's case and Rex v. Woolston) the words complained of were scurrilous, insulting, or offensive: indeed Ventris reports Hale as saying expressly that "contumelious reproaches of the established religion are punishable here." And in one famous case, that of Rex v. Dean of St. Asaph, 21 St.Tr. 847, in which there was no element of scurrility, the defendant was ultimately acquitted.
The watershed between the old and the modern law comes with the cases of Reg. v. Hetherington, 4 St.Tr.N.S. 563 and Reg. v. Ramsay and Foote, 15 Cox C.C. 231. Lord Denman C.J.'s summing up in Reg. v. Hetherington contains the remarkable passage quoted by the Court of Appeal in this case. Its importance is such that I make no apology for quoting it again (pp. 590-591):
"Now, gentlemen, upon the question whether it is blasphemous or not I have this general observation to make, which I have often heard from Lord Tenterden in cases of this description, namely, that the question is not altogether a matter of opinion, but that it must be, in a great degree, a question as to the tone, and style, and spirit, in which such inquiries are conducted. Because, a difference of opinion may subsist, not only as between different sects of Christians, but also with regard to the great doctrines of Christianity itself; and I have heard that great judge declare, that even discussions upon that subject may be by no means a matter of criminal prosecution, but, if they be carried on in a sober and temperate and decent style, even those discussions may be tolerated, and may take place without criminality attaching to them; but that, if the tone and spirit is that of offence, and insult, and ridicule, which leaves the judgment really not free to act, and, therefore, cannot be truly called an appeal to the judgment, but an appeal to the wild and improper feelings of the human mind, more particularly in the younger part of the community, in that case the jury will hardly feel it possible to say that such opinions, so expressed, do not deserve the character which is affixed to them in this indictment. With that general observation, I leave the question of libel to you. Is it, or is it not, a blasphemous libel which the defendant appears to have published in his shop?"
In Reg. v. Ramsay and Foote, 15 Cox C.C. 231, Lord Coleridge C.J. finally dispelled any further possibility of a mere denial of the truth of the Christian religion being treated as a blasphemous libel. The "attack" on Christianity or the Scriptures must be, he directed the jury, "calculated to outrage the feelings of the general body of the community."
Since Reg. v. Ramsay and Foote, the modern law has been settled and in 1917 it received the accolade of this House's approval. "What the law censures or resists is not the mere expression of anti-Christian opinion" said Lord Sumner in Bowman v. Secular Society Ltd.  A.C. 406, 460. The words must constitute, as it is put by Odgers, Libel and Slander, 6th ed. (1929), p. 404, an interference with our religious feelings, creating a sense of insult and outrage "by wanton and unnecessary profanity."
This is an appropriate moment to mention two points made on behalf of the appellants, albeit in the context of the intention to be proved. It was said that to constitute a blasphemous libel the words must contain an attack (emphasis supplied) upon religion and must tend to provoke a breach of the peace, and that the accused must so intend. The plausibility of the first point derives from the undoubted fact that, as a matter of history, most of the reported cases are of attacks upon the doctrines, practice, or beliefs, of the Christian religion. Since Reg. v. Hetherington, 4 St.Tr.N.S. 563 it has been clear, however, that the attack is irrelevant: what does matter is the manner in which "the feelings of the general body of the community" have been treated. If the words are an outrage upon such feelings, the opinion or argument they are used to advance or destroy is of no moment. In the present case, had the argument for acceptance and welcome of homosexuals within the loving fold of the Christian faith been advanced "in a sober and temperate ... style" (Reg. v. Hetherington, at p. 590), there could have been no criminal offence committed. But the jury (with every justification) rejected this view of the poem and drawing.
The trial judge and the Court of Appeal effectually dealt with the second point. I would only add that it is a jejune exercise to speculate whether an outraged Christian would feel provoked by the words and illustration in this case to commit a breach of peace. I hope, and happen to believe, that most, true to their Christian principles, would not allow themselves to be so provoked. The true test is whether the words are calculated to outrage and insult the Christian's religious feelings: and in the modern law the phrase "a tendency to cause a breach of peace" is really a reference to that test. The use of the phrase is no more than a minor contribution to the discussion of the subject. It does remind us that we are in the field where the law seeks to safeguard public order and tranquillity.
What, then, is the "mens rea" required by law to constitute the crime? No one has suggested that blasphemy is a crime of strict liability. The issue is as to the nature of the intention which has to be proved. As Eveleigh L.J. is reported to have put it in argument in this case  Q.B. 10, 16:
"must the defendants have had an intention to offend in the manner complained of, or is it enough that he or they intended to publish that which offends?"
Bowman v. Secular Society Ltd.  A.C. 406 throws no light upon the point. The history of the law is obscure and confused. The point is, therefore, open for your Lordships' decision as a matter of principle. And in deciding the point your Lordships are not saying what the law was in the past or ought to be in the future but what is required of it in the conditions of today's society. As Lord Sumner said in Bowman v. Secular Society Ltd., at p. 467:
"The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed."
The history of the law affords little guidance for a number of reasons. First, the nature of an indictment was, until the reforms in criminal procedure of the last 100 years, more an exercise in an advocate's skill in vituperation than a temperate formulation of the legal ingredients of the offence charged. Secondly, it was not until the enactment of the Criminal Evidence Act 1898 that an accused could give evidence in his own behalf. He was not, therefore, always heard in his own defence: and his intention had to be gathered from the words he had used. (One may mention, in passing, that persons accused of blasphemy very often defended themselves and so enabled the jury to form a view as to their intention. Richard Carlile at his trial read to the jury the whole of Paine's Age of Reason: Rex v. Carlile (Richard) 1 St.Tr.N.S. 1387.) Thirdly, it was not until the enactment of section 8 of the Criminal Justice Act 1967 that courts finally put away the notion that a man must be presumed to have intended the natural consequences of his acts.
The combined influence of these three factors was to obscure the distinction between the meaning and effect of the words and the intention of the accused. The words, as interpreted and understood - by the judge before Fox's Libel Act 1792 and by the jury after that Act - were the best, perhaps the only, indication of the accused's intention. And the high rhetoric to be found in the indictment charging the accused with devising and intending ("machinans et intendens," in the old cases) all manner of wickedness and evil against the Church and State was not traversable at trial. Indeed the more outrageous the rhetoric of the indictment the more likely I suspect it was that the crime being charged was one of "strict liability." Certainly poor Taylor in his case Taylor's Case, 1 Vent. 293) got nowhere with the defence that he did not mean the words in the sense "they ordinarily bear."
My Lords, I agree with the historical analysis of the case law to be found in the judgment of the Court of Appeal and in the speech of my noble and learned friend, Viscount Dilhorne. Lord Denman C.J. stated the law correctly as it was in his time when in Reg. v. Hetherington, 4 St.Tr.N.S. 563, 593 he told the jury that the only question for them to decide was a matter of fact and of opinion: "Aye or no, is this in your opinion a blasphemous publication, and has the defendant ... issued it knowingly and wilfully?" In context his adverb "wilfully" meant no more than "deliberately." As Holt commented in his work on The Law of Libel, 2nd ed., p. 47, "Malice, in legal understanding, implies no more than wilfulness" and the first inquiry of a court is to see if there is present the mark of a voluntary act. He then quotes, at p. 48, the advice of the judges to the House of Lords on April 27, 1792:
"The crime consists in publishing a libel; ... He who scatters firebrands, arrows, and death (which, if not an accurate definition, is a very intelligible description of a libel), is ea ratione criminal. - It is not incumbent in the prosecutor to prove his intent; and, on his part, he shall not be heard to say, 'Am I not in sport? '"
Was the law changed by the famous summing-up of Lord Coleridge C.J. in Reg. v. Ramsay and Foote, 15 COX C.C. 231? For the reasons given by the Court of Appeal and developed by my noble and learned friend, Viscount Dilhorne, I do not think it was. There was never any doubt, or issue, in that case as to the accused's intention. Lord Coleridge C.J. drew upon the passage in Professor Starkie's famous work (Starkie's Slander and Libel, 4th ed., p. 599) to explain not the mens rea but the nature of the "actus reus" of blasphemy. "Mens rea" not being an issue in the case, I do not think it legitimate to read the direction as an authority upon the nature of the "mens rea" required to establish the offence.
Neither Lord Denman C.J. (Reg. v. Hetherington, 4 St.Tr.N.S. 563) nor Stephen's Digest of Criminal Law, 7th ed., art. 231 and Draft Code of the Criminal Law (Report of the Royal Commission Appointed to Consider the Law relating to Indictable Offences (1879) (C.2345), Appendix), section 141 nor the subsequent case law supports Starkie's view (Starkie's Slander and Libel, 4th ed., p. 599) quoted by Lord Coleridge C.J. in Reg. v. Ramsay and Foote, 15 Cox C.C. 231, 236 that a "wilful intention to pervert, insult, and mislead others .. . is the criterion and test of guilt." Indeed, if Starkie's view of the law on this point were correct, it is inconceivable that Avory J. could have summed up in Rex v. Gott as he did, or that the Court of Criminal Appeal could have affirmed him, as they did, 16 Cr.App.R. 87. Your Lordships have had the opportunity of seeing the full report of the summing-up in Rex v. Gott published in the issue of "The Freethinker" of January 8, 1922. The whole weight of the summing-up was directed to the question: were the words complained of "... anything more than vilification and ridicule of the Christian religion and of the Scriptures" (p. 28)?
For these reasons I am of the opinion that historically the law has required no more than an intention to publish words found by the jury to be blasphemous. Yet I recognise that another view, such as that developed by my noble and learned friend Lord Edmund-Davies, has great persuasive force. Indeed, it has the formidable support of my noble and learned friend Lord Diplock.
The issue is, therefore, one of legal policy in the society of today. There is some force in the lawyer's conceptual argument that in the matter of "mens rea" all four species of criminal libel (seditious, blasphemous, obscene and defamatory) should be the same. It is said that an intention to stir up sedition is necessary to constitute the crime of seditious libel. I am not sure that it is or ought to be: contrast Rex v. Aldred, 22 Cox C.C. 1 with Birkett J.'s direction in Rex v. Count (unreported). Prior to the enactment of the Obscene Publications Act 1959 it was not necessary to establish an intention to deprave and corrupt in order to prove an obscene libel: Reg. v. Hicklin (1868) L.R. 3 Q.B. 360. At worst, the common law may be said to have become fragmented in this area of public order offences: at best, it may be said (as I believe to be true) to be moving towards a position in which people who know what they are doing will be criminally liable if the words they choose to publish are such as to cause grave offence to the religious feelings of some of their fellow citizens or are such as to tend to deprave and corrupt persons who are likely to read them.
The movement of the law is illustrated by recent statutes. The Obscene Publications Act 1959 focuses attention upon the words or article published, not the intention of the author or publisher. The test of obscenity depends on the article itself. Section 5 of the Public Order Act 1936 has been significantly amended by the addition of a new section, 5A. The Race Relations Act 1976, section 70 (2), by providing that section 5A be added, has made it unnecessary to prove an intention to provoke a breach of the peace in order to secure a conviction for incitement to racial hatred. All this makes legal sense in a plural society which recognises the human rights and fundamental freedoms of the European Convention [Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Cmd. 8969)]. Article 9 provides that every one has the right to freedom of religion, and the right to manifest his religion in worship, teaching, practice and observance. By necessary implication the article imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others. Article 10 provides that every one shall have the right to freedom of expression. The exercise of this freedom "carries with it duties and responsibilities" and may be subject to such restrictions as are presented by law and are necessary "for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others..." It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens. This is no way forward for a successful plural society. Accordingly, the test of obscenity by concentrating attention on the words complained of is, in my judgment, equally valuable as a test of blasphemy. The character of the words published matter; but not the motive of the author or publisher.
For these reasons as well as for those developed in the speeches of my noble and learned friends, Viscount Dilhorne and Lord Russell of Killowen, with both of which I agree, I would dismiss these appeals. In my judgment the modern law of blasphemy is correctly formulated in article 214 of Stephen's Digest of the Criminal Law, 9th ed. (1950):
"Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. "Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. "Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy."
Respondent's costs to be paid out of central funds.