Defamation

Travers -v- Sunday Newspapers Ltd

 

[2012] IEHC 185 (15 May 2012)

Judgment of Mr. Justice Hedigan delivered the 15th day of May 2012
1. The plaintiff resides at 177, Ardilaun, Portmamock, Co. Dublin. The defendant is a limited liability company, having it’s registered office at 5th Floor, Independent House, 27-31 Talbot Street, Dublin 1.

2. The defendant seeks the following relief:-

1. An Order pursuant to section 14(1) of the Defamation Act 2009 that the publication by the defendant on 31”January 2010 which is the subject matter of these proceedings is not reasonably capable of bearing the following imputations contended for by the plaintiff:-

(i) The imputation contended for at Paragraph 7 (i) of the Statement of Claim.
(ii) The imputation contended for at Paragraph 7 (ii) of the Statement of Claim.

(iii) The imputation contended for at Paragraph 7 (v) of the Statement of Claim.

2. An Order pursuant to section 14(2) b of the Defamation Act 2009, striking out paragraphs 7(i), 7(ii) and 7 (v) of the Statement of Claim, and dismissing the Plaintiffs claim insofar as it relates to those paragraphs, and such further or consequential orders as are necessary.

Background Facts
3.1 In the substantive proceedings, the plaintiff seeks inter alia damages for defamation in respect of an article published by the defendant on the 1st January 2010, under the headline “€7.6m tiger raid was nothing to do with me”. The proceedings were commenced by way of plenary summons issued on 12th March 2010. The statement of claim was delivered on the 12th May 2010. A full defence was delivered by the defendant on the 13th June 2011. At paragraph J of the defence, it is pleaded inter alia that the words and photographs published by the defendant do not bear the meanings set out at paragraph 7 of the statement of claim, save those pleaded at paragraph 7 (iii) and 7 (iv). At paragraph 4 of the defence, it is pleaded inter alia that the material published by the defendant is true in substance and in fact but in its natural and ordinary meanings, and not the meanings pleaded by the plaintiff.
The within application is one brought by the Defendant pursuant to s. 14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant in respect of which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising there from.

3.2 Section 14 of the Defamation Act 2009 provides as follows:-

“14. (1) The court, in a defamation action, may give a ruling:-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) (where the court rules that that statement is reasonably capable of bearing that imputation) as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that:-

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.

(3) An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.
(4) An application under this section may be brought at any time after the bringing of the defamation action concerned including during the course of the trial of the action.”

3.3 The plaintiffs statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the impugned publication meant and was understood to mean that:­
(1) The plaintiff was, in some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State.
(2) The plaintiff had in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad.

(3) The plaintiff was, and remains, suspended from his duties at Bank of Ireland, his place of employment, pending the outcome of a Garda or criminal investigation.

(4) The plaintiff had not satisfied his employers that he was not a member of the group or party who had carried out the said bank heist.

(5) That the plaintiff had some inside information on the said bank heist which he had not disclosed to persons in authority and/or to An Garda Siochana.

The defendant seeks a ruling and an appropriate order pursuant to s.l4(l)(a) of the Defamation Act 2009, that the publication by the Defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7 (i), 7 (ii) and 7 (v) of the statement of claim.
Defendants Submissions
4.1 The defendant submits that in an application such as the present, the question of whether a publication is capable of bearing a particular meaning is a question of law for the judge. The procedure set out in section 14 of the Defamation Act 2009 reflects a practice that had existed both in this jurisdiction and in England and Wales, whereby it is for the judge to lay down the limits of the range of the possible defamatory meanings of which the words are capable, and for the jury to determine the actual meaning of the words within that permissible range. It is stated in Gatley on Libel and Slander 11th Edition, at p.103 that:-

“In ruling on meaning, the court is not determining the actual meaning of the words but delimiting the outside boundaries of the possible range of meanings and setting the “ground rules” for the trial.”
The defendant submits that in the present application, the Court is fully entitled to delimit the range of meanings which the words are reasonably capable of bearing.
4.2 In Duncan and Neill on Defamation, 3rd Edition, at p.33 the authors state inter alia that:-

“The natural and ordinary meaning of the words is the meaning ascribed to the words by the court as the meaning the words would convey to the notional reasonable reader. Where there is a possible range of meanings, a single or ‘right’ meaning is selected as the natural and ordinary meaning”.
In Jeynes v. News Magazines Limited [2008] EW CA Civ 130 The Court of Appeal in England and Wales outlined what is meant by the so-called “reasonable reader”, Clarke M.R. stated at paragraph 14:-
“The legal principles relevant to meaning … may be summarised in this way: (I) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’ …. (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
4.3 A mere reference to a person being under suspicion does not amount to an inference of guilt. In Lowry v Smyth, (Unreported), High Court, 1Oth February 2012, Kearns P. refused an application for summary judgment by the plaintiff under the 2009 Act, and in so doing, referred to the meanings of the words complained of as follows:-
“In relation to the other matter complained of, I certainly believe it is open to the defendant to argue that to report the mere fact that a tribunal is investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license is not necessarily defamatory per se. Two cases amply bear out this proposition. Both were cited to this court in Griffin v. Sunday Newspapers [2011] IEHC 331, in which the defendant newspaper sought an order under s.14 (1)(a) of the Defamation Act 2009 to narrow down the scope of the plaintiffs claim on the basis that certain imputations ascribed to an article were not reasonably capable of bearing the defamatory meanings contended for by the plaintiff.
That case concerned a newspaper article which stated that there was a military investigation underway into allegations that members of the Army Rangers Wing took leave of absence to give weapons training to police in the Seychelles. The issue which the court had to consider was whether a statement that an inquiry or investigation was under way was of itself indicative of wrongdoing and of having the defamatory meanings contended for by the plaintiff.

In the course of argument, reference was made to two cases which provided considerable assistance.

In Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, the facts were that the City Fraud Squad in London were inquiring into the affairs of a limited company of which Mr. Lewis was chairman. Both he and the company of which he was chairman issued writs against the newspapers who had issued front-page stories to that effect. It was alleged that the words were defamatory in their ordinary and natural meaning and were meant and were understood to mean that the plaintiffs had been guilty of fraud or dishonesty. In the course of his judgment Lord Reid stated as follows in relation to reports about ongoing investigations (at p. 259):-

“What an ordinary man, not avid for scandal, would read into the words ‘complained of must be a matter of impression. I can only say that 1 do not think he would infer guilt of fraud merely because an inquiry is on foot. And, if that is so, then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter of law the paragraph is not capable of having that meaning.”
A similar view was expressed by Lord Justice Hirst in Mapp v. Newsgroup Newspapers Ltd. [1998] QB 520, to emphasize that the reference to an investigation could not reasonably be read as imputing guilt to the plaintiffs as contrasted with reasonable suspicion of guilt. In that case the court had to consider whether the reference to the suicide of a police officer in conjunction with a report of the existence of an investigation was such as to transform a reasonable suspicion of guilt into something more.
In Griffin, this Court endorsed the approach taken by Lord Reid in Lewis and by Hirst L.J. in Mapp to hold that, while the impugned article contained many statements to the effect that allegations had been raised, there was no suggestion that these allegations had been proven or that findings had been made adverse to the plaintiff.”

It is clear therefore that a mere reference to a person being under suspicion does not amount to an or inference of guilt.

4.4 The defendant submits that it now well settled law that it is unreasonable to infer guilt from a statement of suspicion. At paragraph 7 (i) of the plaintiff’s statement of claim, the meaning being contended for by the plaintiff is that the plaintiff has criminal responsibility for the robbery. The defendant submits that this contended meaning cannot arise, for a number of reasons but not least since it essentially involves the plaintiff in arguing that the publication excludes the possibility of his being entirely innocent. The headline sets out the plaintiff’s position that the robbery was nothing to do with him. The words above the headline state that he has been released but that the investigation is ongoing. In the third paragraph of the article it is stated that the plaintiff is denying any involvement in the tiger kidnap, and that the plaintiff was “forced” to stuff four laundry bags with money. Further on in the article it is stated that he was released without charge from Garda custody. It is further stated that the defendant “…understands that [the plaintiff] insists that he had nothing to do with the heist”, that the plaintiff was “forced” to drive to the Bank, that the plaintiff reported the matter to Gardai, that on the morning of the raid he arrived at the Bank distraught, and a caption refers to “…the house where [the plaintiff] was kidnapped”. In light of these examples the defendant submits that the hypothetical reasonable reader would not take the meaning contended for by the plaintiff from the article.
Plaintiffs Submissions
5.1 The plaintiff submits that the defendant is not entitled to an Order pursuant to section 14(1) (a) of the Defamation Act, 2009 as sought in the Notice of Motion. The question for determination is whether or not the words are reasonably capable of carrying the meanings contended for by the plaintiff. The plaintiff relies on Gatley on Libel and Slander, 11th ed, 2008, the learned author states as follows at page 101:-.

“Although it has been said that the question as to meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a Jaw that governs the everyday life and actions of all levels of persons in the community yet, only in a very simple case are words capable of conveying a single, clear, indisputable imputation…..Logically anterior, therefore, to the question of whether the words are capable of being defamatory in law is the question of what meaning or meanings the words are reasonably capable of bearing. Where an action for defamation goes to full trial it may be before a jury and the jury is then the arbiter, subject to the limited powers of the court of appeal of what the words do convey and whether they are defamatory. In this sense, therefore, the meaning of words is a question of fact. But it is for the judge to rule whether the words contended for are capable of bearing the meanings contended for and if so whether any of those meanings is capable in law of being defamatory. The judge’s function in this regard is no more and no less than to pre-empt perversity.”
5.2 Meaning is something peculiarly for the jury and neither party is allowed to adduce evidence of meaning. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 is that a trial judge should not withdraw a question of meaning from the jury unless it is satisfied that it would be “wholly unreasonable” to leave that question to the jury. Quigley concerned a well known actor who took a libel action against the publisher of a magazine article. The actor contended that the ordinary meaning of certain words in the article was that he did not work in Ireland and that he chose to work and live in London because the rewards and opportunities there were better than in Ireland. The plaintiff actor was successful before a jury and the publisher appealed. On appeal, the publisher submitted that the relevant words and their meaning as found by the jury were incapable of being defamatory because they only amounted to a statement that the plaintiff had left Ireland to improve his financial position. In disallowing the appeal, the Supreme Court per Walsh J. stated:-
“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libelous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community…”
5.3 In Magee v. MGN Limited [2003] IEHC 87 Mc Kechnie J. referred to the “unique” role of the jury in determining questions of meaning. That case involved an individual who had been convicted of the Brighton bombing. The plaintiff claimed to have been defamed by an assertion fifteen years later inter alia that he was not a supporter of the peace process in Northern Ireland. That case involved a different application than the application the subject matter of the motion before the Court. It was an application to strike out the plaintiff’s claim as frivolous and vexatious. McKechnie J. considered that he could not conclude at that stage of the proceedings that the plaintiff’s proceedings must fail. He stated as follows at paragraph 35:-
“…it seems to me that I cannot say at this stage of the within proceedings that the plaintiffs claim must fail. In other words that it cannot possibly succeed. In other words that before a properly representative jury he could not even argue that the imputations as alleged were defamatory of him. I cannot agree that this is necessarily so. In such altered circumstances I believe that the existence or not, as the case may be, of damage to reputation, is at least capable of argument. Such a finding, one way or the other, as Griffin J. said in Barrett v. Independent Newspaper Ltd. [1986] I.R. 13 at p. 28, is to a considerable extent, “a matter of opinion” as distinct from judgments as to actual fact and. Furthermore in my view, there is no doubt but that society’s opinion is capable in a way recognised by law of changing from time to time either to lead or to respond to events or other social changes. In my opinion, therefore given this crucial role which a jury plays on an issue such as this in a libel action, I cannot. as previously stated, conclude with certainty that right thinking members of society generally could not, despite the plaintiffs past, hold in his favor in the present proceedings.”
5.4 The plaintiff submits that the article meant that he was:-
(i) “In some way, a willing participant in the organization and carrying out of the largest bank heist in the history of the State”.
(ii) That he “in some way benefited and/or gained financially from the bank heist to such an extent as to enable him to enjoy material wealth and riches associated with expensive cars and holidays abroad”

…

(v) That he “had some inside information on the bank heist which he had not disclosed to persons in authority and/or to An Garda Síochána”.

The article includes a photograph of the plaintiff standing in front of a Ferrari and it includes captions such as “high life”. The plaintiff submits that this Court should not remove from the jury, decisions about the overall meaning of the article. This is particularly so when it has to be conceded that the average reader is drawn to large colour photographs and headlines more than to the small text of the article. It is further submitted that because the article is reasonably capable of bearing the meanings contended for by the plaintiff, the defendant’s application must fail.
Decision of Court
6.1 The within application is one brought by the defendant pursuant to s.14 (1) (a) of the Defamation Act 2009, wherein the defendant seeks orders from this Court that certain of the meanings contended for by the plaintiff at paragraph 7 of the statement of claim are meanings that are not reasonably capable of arising from the publication by the defendant on which the plaintiff sues. That is, of the five meanings contended for by the plaintiff, the defendant maintains that three of those meanings are not reasonably capable of arising.

6.2 Section 14 of the Defamation Act 2009 provides as follows:­

“14. (1)The court, in a defamation action, may give a ruling:-

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(b) where the court rules that that statement is reasonably capable of bearing that imputation as to whether that imputation is reasonably capable of bearing a defamatory meaning, upon an application being made to it in that behalf.

(2) Where a court rules under subsection (1) that:-

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or
(b) that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far only as it relates to the imputation concerned.

(3) An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.
(4) An application under this section may be brought at any time after the bringing ofthe defamation action concerned including during the course of the trial of the action.”

6.3 The plaintiff’s statement of claim contends at paragraph 7 that, in its natural and ordinary meaning the publication meant that:-
(i) The plaintiff was a willing participant in the carrying out of the bank heist.
(ii) The plaintiff had gained financially from the heist to such an extent as to enable him to enjoy expensive cars and holidays abroad.

(iii) The plaintiff remains suspended from his duties at Bank of Ireland.

(iv) The plaintiff had not satisfied his employers that he was not a member of the group who had carried out the heist.

(v) That the plaintiff had some inside information on the bank heist.

The defendant seeks a ruling and an appropriate order pursuant to s. 14 (1)(a) of the Defamation Act 2009, that the publication by the defendant on 31st January, 2010 is not reasonably capable of bearing any of the imputations contended for by the plaintiff at paragraphs 7(i) 7 (ii) 7(v) of the statement of claim.
6.4 It is well established that a judge should not withdraw a question of meaning from the jury unless satisfied that it would be “wholly unreasonable” to leave that question to the jury. The test laid down by the Supreme Court in Quigley v. Creation Ltd. [1971] IR 269 where Walsh J. stated as follows at 272:-

“In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libelous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community…”
6.5 In determining an application such as this it seems to me that the same principles apply. I accept therefore that the Court must take into account the “unique” role of the jury in determining questions of meaning see Magee v. MGN Limited [2003]1EHC 87 cited above.
6.6 Written words must be construed in the context in which they appear. The hypothetical reasonable man that is referred to in Jeynes v. News Magazines Limited (cited above) whilst not overly suspicious can read between the lines and determine what is actually meant by the article. There may well be phrases present that are attributable to the plaintiff which claim his innocence, however it seems to me that the fact that the article sets out the plaintiffs denial of involvement in the bank robbery does not preclude the plaintiff from alleging the meanings for which he contends. The article includes captions such as “high life” beside a photograph of the plaintiff standing in front of a ferrari. It is plain that some meaning must be adduced by the reasonable reader from the presence of such a photograph. The high life ferrari style is not normally associated with the life style of a bank clerk. By juxtaposing the photo with the text, the defendant has it seems to me very arguably suggested the plaintiff is not to be believed. Whether this is so is a matter for the jury. It seems to me that the article when viewed objectively from the viewpoint of the hypothetical “reasonable reader” is capable of giving rise to the meanings contended for at paragraphs 7(i) 7(ii) and 7(v) of the statement of claim. I am satisfied therefore that it would be unfairly prejudicial to the plaintiff to prevent the pleas contended for at paragraphs 7(i), 7(ii) and 7(v) of the statement of claim from being put before the jury at the trial of the action. In light of these findings the defendant’s application is refused.

 

Speedie -v- Sunday Newspapers Ltd & Ors

[2017] IECA 15 (02 February 2017)
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 2nd day of February 2017
1. The plaintiff, Mr. David Speedie, is a former professional footballer who played with great distinction for a number of prominent English Premier League clubs – including Chelsea and Liverpool – in the 1980s and early 1990s. He was also capped for Scotland on some 10 occasions. After his retirement from the professional game, Mr. Speedie became involved as a commentator on football matters. At some point he moved from the U.K. to Dublin to be with his then fianceé, a Ms. Grey. Ms. Grey’s sister is in turn married to the brother of a notorious criminal figure.

2. The defendants are, respectively, the publishers of the “Sunday World” newspaper, Mr. McGinty, the editor of the newspaper and Mr. McCaffrey, a specialist crime reporter who is employed by the newspaper.

3. In 2011 the plaintiff issued defamation proceedings against the defendants following the publication of two articles in The Sunday World on 10th April 2011 (“Article 1”) and 24th April 2011 (“Article 2”) concerning him. The first article described how the plaintiff had been stopped by Gardaí on a number of occasions and how his relationship with Ms. Grey had brought him into contact with known criminals. The opening paragraphs sum up the essence of Article 1:-

“A former top Premier League striker who has been stopped and quizzed by Gardaí on 17 occasions insisted that he is not a member of [X’s] drug gang.
The Sunday World has learned that retired Liverpool striker, David Speedie, is involved in a relationship with a relative of [X] and has been associating with known gangsters. Speedie, who last week appeared on RTÉ radio as a pundit, is frequently stopped by detectives around Dublin’s south inner city and has even had his car seized.

He was drinking in a Dublin pub when major criminal [Y] was attacked and had his leg broken while his wife was viciously slashed”

4. Article 2 was headed “Speedie the Snake” and referred to the fact that the plaintiff had caused a solicitor’s letter to be written to the newspaper claiming that he had been defamed by Article 1. The rest of Article 2 largely repeated in compressed form the essence of what had been stated in Article 1, save that it also showed a photograph of Mr. Speedie handling a live snake and it further stated that he had been drinking with Y, who was a brother of X. Both X and Y were stated to be well known criminal figures.
5. The essence of that particular complaint by Mr. Speedie in that correspondence was that he contended that the newspaper had alleged either that he was engaged in criminal activity or that the Gardaí had reason to believe that he was involved in gangland crime. In that correspondence Mr. Speedie further denied that he had associated with known criminals.

6. Those complaints were repeated in the defamation proceedings and in his statement of claim the plaintiff alleged that both Article 1 and Article 2 bore these meanings. The newspaper’s defence was a carefully drafted pleading. It denied that the articles in question bore the meaning that the plaintiff had been involved in crime or that he had been wanted for questioning by the Gardaí. The newspaper, however, approached the two articles differently so far as its defence was concerned.

7. So far as Article 1 was concerned, the newspaper denied that it bore the defamatory meanings contended for the plaintiff, but that based solely on the meaning which it submitted the article bore (associating with known criminals), the newspaper contended Article 1 was true in substance and in fact. It is important to note that the newspaper never sought to advance the defence of truth in relation to the allegation that the plaintiff was involved in or reasonably suspected of being involved in crime, since, in any event, it denied that Article 1 bore this meaning.

8. So far as Article 2 was concerned, the newspaper admittedly denied that it bore the meanings for which the plaintiff contended. Critically, however, the newspaper also submitted that even if these meanings ascribed to Article 2 by the plaintiff were the correct ones, the article was nonetheless correct in truth and in substance. No such approach had been taken by the newspaper in respect of Article 1 where the principal defence was to deny that it bore either of the meanings contended for by the plaintiff.

9. The libel action itself took five days before Hedigan J. At the trial the newspaper’s witness were directed at the issue of whether the plaintiff had been associating with criminals. On the fourth day, however, following a lengthy discussion and submissions from counsel for both sides, an issue paper with eight questions was agreed. Counsel made closing submissions to the jury and the judge directed the jury accordingly.

10. As the questions put to the jury and, indeed, the precise sequence of those questions have assumed considerable importance so far as this appeal is concerned, it may be convenient if the issue paper and the jury’s response to those questions is reproduced at this point:-

Question Jury’s Answer
1. Does Article One mean that the plaintiff engaged in criminal activity? “No”

2. Does Article One mean that Gardaí have reason to suspect the plaintiff

of being involved in criminal activity? “Yes”

3. If the answer to either 1 or 2 is yes, assess damages. “Yes
Damages in the sum of €85,000
4. Does Article One mean that the plaintiff associated with known criminals? “Yes”
5. Does Article Two mean that the plaintiff is treacherous like a snake? “Yes”
6. Does Article Two mean that the plaintiff has links to the activities of

[X] “No”

7. If the answer to any of 4 – 6 above is yes, have the defendants proved
that this meaning is true?” “Yes”

8. If the answer to question 7 is no – assess damages. “N/A”

11. The jury’s verdict was to the effect that Article 1 meant that the plaintiff had been reasonably suspected of involvement in criminal activities. The plaintiff was awarded €85,000 damages in respect of that defamation. The jury further found that the allegations contained in Article 2 to the effect that the plaintiff had associated with known criminals and that he was treacherous as a snake were true in substance.
12. The newspaper has appealed this verdict to this Court. The essence of the argument advanced by counsel for the newspaper, was to the effect that there was a mis-trial in that the jury verdict was inconsistent and the trial judge had infringed the “single meaning” rule by allowing Question 2 (Garda suspicion of involvement in criminal activity) and Question 4 (associating with known criminals) both to go to the jury. He further alleged that the sequence of the questions was wrong, since by directing the jury to award damages in question 3 if they found that the newspaper had in fact alleged that the plaintiff was involved in crime or suspected of being involved in crime, this had the effect of depriving the newspaper of its s. 16(2) defence, a topic to which I shall later return. For his part, counsel for the plaintiff, contended that the single meaning rule had not been infringed, since the newspaper had in fact made distinct allegations. He further submitted that the s. 16(2) defence did not apply (again, for reasons to which I shall later return) and that even if did, the newspaper was debarred by its own conduct from challenging the sequence on the issue paper. He finally submitted that the damages award of €85,000 should be increased by this Court.
The single meaning rule
13. In defamation proceedings the court – and, in a jury action, in effect the jury – must settle on a single meaning to be ascribed to the relevant words of a particular, discrete charge contained in the publication in question. The rule in question was explained thus by Warby J. in Yeo v. Times Newspapers Ltd. [2014] EHC 2853, [2015] 1 WLR 971, 995:-

“The starting point is that in a libel action where meaning is disputed the court must settle on a single meaning (“the single meaning rule”). Defamation law ignores the fact that different people may take different meanings from the same set of words. It treats a given set of words as having only one meaning. The court must identify this meaning, which may be inferential or implied, by considering the words used and identifying what the hypothetical reasonable reader would have understood them to mean. See Slim v Daily Telegraph [1968] 2 QB 157, 172 per Diplock L.J., Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 72.
This does not mean that a newspaper article or broadcast can only ever convey a single defamatory charge. More than one charge can be contained in a single publication. As already noted, there may be both a defamatory factual meaning and a defamatory comment. The single meaning rule is that the same words cannot be treated as conveying two or more charges which are different from and inconsistent with one another such as, for instance, both a meaning that the claimant is guilty and that he is reasonably suspected of some particular wrongdoing.”

14. The real object of the single meaning rule is, accordingly, to promote certainty so far as the parties are concerned by fixing on one, single objectively determined meaning to the relevant words of a particular article and thereby to avoid the possibility of inconsistent verdicts. As Warby J. observed in Yeo, this does not mean, however, that one article may not contain more than one defamatory meaning.
15. For my part, however, I do not think that the single meaning rule has been breached in the present case. The only alleged breach of the rule so far as this appeal is concerned was that it was submitted that the trial judge should not have permitted both Question 2 (suspicion of criminal activity) and Question 4 (associating with known criminals) to go to the jury. There was no suggestion that the trial judge had infringed the rule by permitting Question 1 (did the plaintiff engage in criminal activity?) and Question 2 (Gardai suspected the plaintiff of involvement in criminal activity) both to go to the jury.

16. The jury expressly found in its answer to Question 2 that Article 1 meant that the Gardaí had reason to suspect that the plaintiff had been involved in criminal activity and in an answer to a separate question in Question 4 also found that he had associated with known criminals. These, however, are two distinct allegations, each of which are capable of bearing separate defamatory meanings: it was never suggested that these two allegations were conveyed by the same set of words used in Article 1.

17. A suggestion that the Gardaí had reason to believe that a person named in a newspaper article was involved in criminal activity speaks for itself. The claim that a person associates with known criminals does not, however, in and of itself imply that he or she has engaged in criminal activity. Depending on the context of the article, such a claim may suggest poor judgment and may imply an implicit condonation of these criminal activities. An allegation to this effect is certainly capable of bearing a defamatory meaning.

18. At the same time it is perfectly possible for an individual not to be involved in crime while at the same associating with known criminals. This, in effect, is what the jury found concerning the plaintiff in this case. In such circumstances he is entitled to damages for defamation in respect of the untrue allegation, but not, of course, in respect of the allegation found to be true and, indeed, this is precisely what the jury decided in the present case.

19. None of this, however, involves any breach of the single meaning rule and I would accordingly reject the argument of the newspaper to this effect.
Section 16 of the 2009 Act
20. The other objection raised by the newspaper was that the sequence of the questions on the issue paper prevented the jury from properly considering the scope of the newspaper’s s. 16(2) defence. In order to assess this argument it is necessary first to consider the terms of s. 16(1) of the 2009 Act which provides:

“It shall be a defence (to be known and in this Act referred to as the ‘defence of truth’) to a defamation action for the defendant to prove that the statement in respect of which the action was brought is true in all material respects.”
21. Section 16(2) of the 2009 Act provides:-
“In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegations.”
22. It is clear from this Court’s decision in McDonagh v. Sunday Newspapers Ltd. [2015] IECA 225 that this sub-section is essentially a liability defence. In essence, the defence of the newspaper in relation to Article 1 was that it did not bear either of the two meanings for which the plaintiff contended (i.e., involved in crime or suspected by Gardai of being involved in crime), but that if it did bear either of these meanings, it not seek to defend the truth of either such allegation. The newspaper nonetheless submitted that even in such circumstances it should be permitted to run a s. 16(2) defence by reason of its success in respect of the third allegation in Article 1 (i.e., that the plaintiff had associated with known criminals), the words “not proved to be true” did not materially injure his reputation “have regard to the truth of the remaining allegations.”
23. On this basis, therefore, the newspaper argued that the sequence of the questions on the jury’s issue paper prevented the jury from giving proper consideration to this question. It contended that the sequence of the questions on the issue paper meant that in the event that the jury considered that Article 1 bore either of the meanings for which the plaintiff contended – and which meanings were denied by the newspaper – the jury must proceed immediately to an assessment of damages and was thereby deprived of the opportunity of considering the s. 16(2) defence.

24. The plaintiff for his part contended that s. 16(2) had no application at all on the facts of the present case precisely because the newspaper never sought to rely on the defence of truth in respect of either of the first two meanings in respect of Article 1 for which he had contended. Specifically, counsel for the plaintiff observed that the newspaper had never advanced the defence of truth at all in the case of the allegation in Article 1 regarding the suspicion of engagement in criminal activities, since its defence in relation to that plea was simply that Article 1 never bore that meaning. He contended that the circumstances of the present case rather came within the parameters of s. 31(4)(i) of the 2009 Act which requires the jury to have regard to a range of factors when making an award of general damages, including:-

“(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement.”
25. The issues raised by the parties in relation to the construction of s. 16(2) of the 2009 Act are undoubtedly difficult. For the sub-section to apply must, for example, the newspaper seek to defend the proceedings on the basis of the truth of every distinct allegation of every distinct allegation? If that were so, then let us suppose that a newspaper alleged that a particular person had accumulated a large number of motoring offences (including convictions for drunk driving and no insurance), but also alleged that he had been convicted for not wearing a seat belt. Would it then follow that if the newspaper offered no evidence to support the (relatively minor) no seat belt conviction, but could prove a long series of drink driving and no insurance convictions, the s. 16(2) defence could not come into play on the ground that the newspaper had not attempted to prove every element of the defamatory imputation? Or, alternatively, is the newspaper confined in such a case simply to the damages defence provided for in s 31(4)(i), to which reference has just been made?
26. A further difficulty is highlighted by the following passage in Gatley on Libel and Slander (12th ed.) (at 11.16) with regard to the corresponding provisions of s. 5 of the (English) Defamation Act 1952 (which itself has been subsequently amended):-

“Evidently s. 5 postulates that there can be a standard or scale of values by which the relative worth of multiple defamatory charges may be weighed or measured. No guidance is given, however, on how this scale is to be calibrated. If D alleges that C is an adulterer and a thief, and proves only that he a thief, it is not clear by what reasoned scheme a judge or jury is to determine whether the unproved charge of adultery does or does not materially injury C’s reputation. The logic of the provision is that the harm to reputation caused by the allegation(s) found to be true, in respect of which damages may be recovered, is such as to render any injury to reputation that notionally might have been caused by the unproven allegation nugatory to the point of irrelevance.”
27. In my view, however, it is unnecessary to decide any of these potentially difficult issues having regard to the run of the case; the discussion before the trial judge on the 4th day of the trial on 26th June 2015 and the conclusions reached in relation to the issue paper.
28. It is clear from that discussion that the issue concerning s. 16(2) of the 2009 Act was not raised at all during the debate in relation to the issue paper itself. Indeed, counsel for the newspaper conceded that there was no need to re-organise the issue paper:

“So you can leave the issue paper as it is, judge, I think with the meanings question first and then there is a question about truth. You can tell the jury which meanings are open to them as capable of being true and then the last question is the damages question. So I don’t think one needs to reorganize the order of the Court’s draft issue paper.”
29. Nor was the issue of s. 16(2) raised by the newspaper during the course of the closing speeches to the jury. In fact, save for a passing mention towards the close of the trial judge’s address to the jury, the issue of s. 16(2) really first arose following a question from the jury concerning the meaning of Question 7 on the issue paper some three hours after the jury had commenced its deliberations. The question from the jury was in the following terms:-
“Query on Question 7. Does this question mean that if any one of the Questions 4 to 6 are proved by the defendants, then there is no assessment of damages even if another question of 4 – 6 is not proved?”
30. It was at that point that the newspaper made it clear that it wanted to run the s. 16(2) defence in respect of Question 4 (associating with known criminals) in the event that the newspaper failed in its defence that Article 1 did not imply that the plaintiff had engaged in criminal activity (Question 1) or that the Gardaí had reason to suspect that the plaintiff had engaged in such criminal activity (Question 2). Counsel for the plaintiff objected to this, saying:-
“Well, except that it is not on the issue paper, judge….I know in a justification case that section is there, but it is a basic question on the issue paper, and if it is not on the issue paper, I would respectfully urge not to add another question to the issue paper now. In my respectful submission, that would not be right.”
31. There was then a further discussion between counsel and the judge on this question. Counsel for the newspaper submitted that s. 16(2) had to be addressed as a matter of law. The judge ultimately answered the jury’s question by answering the question in the negative, but he also drew attention in what, in effect, was a form of re-charge to the jury to the s. 16(2) issue but only so far as the Questions 4 to 7 were concerned. In other words, the s. 16(2) re-charge was on the assumption that the jury would or might find that the various meanings contended for by the plaintiff in Questions 4, 5 and 6 were correct, but that some (but not all) of the defamatory imputations would be found to be untrue.
32. As it happens, however, by reason of the jury’s findings, the question of the application of s. 16(2) to Questions 4 to 7 simply did not arise. By their answers to these questions the jury found that while the newspaper articles did imply that the plaintiff associated with known criminals and was as treacherous as a snake, they also found that these allegations were true.

33. Reviewing, therefore, the specific questions contained on the issue paper and the jury’s answers to them, the only circumstances where on these facts s. 16(2) might have come into play was in respect of Question 2 (Gardaí suspect plaintiff of involvement in crime) (false) and Question 4 (plaintiff associated with known criminals) (true).

34. If the newspaper would have been entitled as a matter of law to run the s. 16(2) defence in respect of these two issues, then I agree with counsel for the newspaper that it would have been necessary to alter the sequence of the questions with Question 3 and Question 4 inverted, so that the jury could not immediately proceed to award damages if they found that Article 1 implied that the plaintiff was either guilty of crime or was suspected by Gardaí of being involved in such activity. In addition, however, a further question would have been necessary directed specifically to the substance of any such s. 16(2) defence. In other words, the jury would had to have been directed not to award damages (Question 3) if (i) they found that Article 1 had implied that the Gardaí suspected the plaintiff of involvement in crime (false) (Question 2), but that (ii) he had associated with known criminals (true)(Question 4) if they also concluded (iii) that the “words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegations.”

35. By that stage, however, it was, I think, too late to run the s. 16(2) defence in respect of these particular issues since the issue paper had already been in the hands of the jury for several hours. The issue paper was already very long (with eight questions) and any proper consideration of this issue would, have required – as I have just noted – the re-organisation of the sequence of the questions, together with the addition of a further question addressed to the s. 16(2) defence. Furthermore, both parties had already made their closing speeches to the jury and been charged accordingly by the trial judge by reference to the existing issues as identified by the issue paper. In such circumstances the potential for confusion on the part of the jury would have been too real and the risk of injustice arising from that confusion would have been just too great.

36. In my view, in these particular circumstances the newspaper must be held to be estopped by its own conduct from objecting to the procedure which was actually adopted. It was, after all, a matter for the newspaper to decide whether it would run that particular defence (even assuming as a matter of law it were available) and the failure to raise that defence at the appropriate time – at the latest when the issue paper inviting the special verdicts of the jury was being drafted – can only be regarded as a de facto waiver of the point.

37. This point is illustrated by the two well known decisions of the Supreme Court from the late 1970s. In Corrigan v. Irish Land Commission [1977] I.R. 317 the plaintiff went ahead with a hearing before an appeal tribunal, which tribunal later confirmed a compulsory purchase order in respect of his property. The plaintiff then claimed that one member of the tribunal was disqualified from adjudicating by reason of his prior involvement in the matter. The plaintiff had, however, known of the tribunal member’s prior involvement and had nonetheless elected to proceed with the hearing. A majority of the Supreme Court held that the plaintiff was debarred by his conduct – and, specifically, his failure to raise the objection in a timely fashion – from later complaining about the eligibility of the tribunal member.

38. A similar approach is evident in The State (Byrne) v. Frawley [1978] I.R. 326. In that case the applicant was on trial before the Circuit Court and a jury when in the course of that trial the Supreme Court held in another case, de Búrca v. Attorney General [1976] I.R. 38, that the provisions of the Juries Act 1927 were unconstitutional. The applicant nonetheless elected to proceed with the trial and was convicted. Although he later sought to assert that the trial was unconstitutional in view of the decision in de Búrca, a majority of the Supreme Court held that he was debarred by his conduct from asserting that unconstitutionality. He had failed to raise the objection in a timely fashion and having elected to proceed with his trial, he was later held to be estopped from raising the point.

39. While it is true that the elements of knowing election which were present in both Corrigan and Byrne are not present here, the result is nonetheless the same. The newspaper allowed the issue paper to go to the jury and for closing speeches to be made without having raised the s. 16(2) defence in respect of Question 2 and Question 4 at the appropriate time and in the appropriate fashion. It is true that the newspaper subsequently endeavoured to raise the sequence of the questions on the issue paper and the s. 16(2) defence when the jury came back with a question regarding the meaning of Questions 4 to 7. But by that stage it was just too late.
Quantum of damages
40. It remains only to consider the question of the quantum of damages. Although counsel for the plaintiff urged us to consider increasing the award of €85,000, I do not think that this Court could say that this award in some way failed to recognise the seriousness of the libel or that it was disproportionate in some way. I see no basis for interfering with the jury’s finding so far as the size of the award is concerned.
Conclusions
41. In summary, therefore, I am of the view that:

42. First, I do not consider that the single meaning rule was infringed in the present case. The single meaning rule exists essentially to ensure that the same set of words contained in a published piece has a fixed, settled meaning, thereby providing certainty for the parties and mitigating the risk of inconsistent jury verdicts arising from confusion as to the meaning of the words in question. The single meaning rule is not, however, infringed where (as here) a particular publication contains two or more distinct allegations which are conveyed by different sets of words in the publication in question.

43. In the present case two distinct allegations were made by different words in Article 1 (suspicion of involvement in crime and associating with known criminals). It was perfectly possible to conclude that Article 1 carried these two imputations and that one was true while the other was false.

44. Second, no objection was taken to the sequence of the questions on the issue paper and nor was s. 16(2) itself raised as a specific question for the issue paper. Even assuming that the s. 16(2) defence could properly have been raised by the newspaper, it would have to have been raised in a timely fashion. It would also have been necessary to alter the sequence of the present Questions 3 and 4 and to add a question relating to the potential operation of s. 16(2) in the context of Article 1.

45. The parties, moreover, made their closing speeches to the jury without reference to the s. 16(2) defence and saving for a passing mention in the judge’s charge to the jury, the first time that s. 16(2) was raised in terms at this point in the trial was following a question from the jury in respect of Questions 4 to 7 some three hours into their deliberations. But by that stage it was too late to undo the manner in which the issues had been formulated, closing speeches made and the issue paper entrusted into the hands of the jury. It must also be recalled that the newspaper never sought to prove the truth of allegation in Q. 2 (Gardai had reason to suspect the plaintiff of criminal activity) on the issue paper. That did not form part of the newspaper’s defence. In all the circumstances, the newspaper must be adjudged to have waived its right to raise the s. 16(2) defence in relation to the meaning alleged (and disputed) that the Gardai suspected the plaintiff of involvement in crime.

46. Finally, I see no basis upon which the amount of the jury’s award of €85,000 should be interfered with.

47. It follows, therefore, that the appeal must be dismissed.

 

Criminal Libel Leave (Repealed)

In the Matter of the Defamation Act 1961 and

John Corway v. Independent Newspapers (Ireland) Ltd

Independent Newspapers plc and Aengus Fanning
1996 Nos. 322 and 345

Supreme Court

30 July 1999

[2000] 1 I.L.R.M. 426
(Hamilton CJ, Barrington, Murphy, Lynch and Barron JJ)

BARRINGTON J

delivered the judgment of the court on 30 July 1999 saying: This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish law.

The appeal is against the judgment and order of Geoghegan J, delivered and made herein on 23 October 1996, whereby he refused the applicant leave to institute a criminal prosecution for blasphemy against the respondents pursuant to the provisions of s. 8 of the Defamation Act 1961.

S. 8 of the Defamation Act 1961 reads as follows:

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

Facts
The applicant is a carpenter and resides at Harolds Cross, Dublin. The first and second named respondents are the proprietors, and the third named respondent the editor, of the Sunday Independent which is a weekly newspaper with a large circulation in Ireland.

On 26 November 1995 the Sunday Independent, in the wake of the divorce referendum, carried an article, by Dr Conor Cruise-O’Brien, on the implications of that referendum. Associated with the article was a cartoon which depicted on the right a plump and comic caricature of a priest. The priest was holding a host in his right hand and a chalice in his left hand. He appears to be offering the host to three figures on the left hand side of the cartoon. The three figures are the prominent politicians Mr Prionsias de Rossa, Mr Ruari Quinn and Mr John Bruton. But they are turning away and appear to be waving goodbye. At the top of the cartoon are printed the words ‘Hello progress — bye bye Father’ followed by a question mark.

The words at the top of the cartoon are clearly meant to be a play upon a phrase used, during the referendum campaign, by some of the campaigners against divorce. That is to say ‘Hello divorce — bye bye daddy’.

*429

The applicant maintains that the cartoon picture and caption appear calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the eucharist and its administration as objects of scorn and derision.

He continues:

As one professing and endeavouring to practise the Christian religion through membership of the Roman Catholic Church I have suffered offence and outrage by reason of the insult, ridicule and contempt shown towards the sacrament of the eucharist as a result of the publication of the matter complained of herein and I am aware of other persons having also so suffered. It is intended that the proposed charge of blasphemous libel shall refer in particular to the cartoon and captions hereinbefore exhibited.

The applicant says that he has been advised by counsel and solicitor and believes that the composition, printing and publication of the matter complained of could be held to constitute offences to which the provisions of s. 13(1) of the Defamation Act 1961 will apply and that he has also been advised and believes that the subject matter of the application herein is such that there is a clear prima facie case for the respondents and each of them to answer in the event of the matter coming before the criminal court.

S. 13(1) of the Defamation Act 1961, provides as follows:

Every person who composes, prints or publishes any blasphemous … libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years.

The basic reason for Geoghegan J’s decision was that he did not believe that the facts complained of amounted to blasphemy. In other words he did not believe that there was any actus reus. But he said that had he believed that there was sufficient evidence of an actus reus he would have regarded the act of publishing as being evidence for the purpose of establishing mens rea and would not have required evidence of a specific intention to blaspheme.

Constitutional provision
The reference to blasphemy in the Constitution occurs in Article 40.6.1°(i). Significantly it appears as a reservation on the ‘right of the citizens to express freely their convictions and opinions’. Having guaranteed liberty for the exercise of that right the Constitution goes on to provide that:

The publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law.

*430

There is no definition of blasphemy in the Constitution nor is there any Act of the Oireachtas defining blasphemy. Mr Murdoch in his Dictionary of Irish Law (Topaz Publications, Dublin 1988) defines blasphemy as follows:

The crime which consists of indecent and offensive attacks on Christianity, or the scriptures, or sacred persons or objects calculated to outrage the feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law …. The mere denial of Christian teaching is not sufficient to constitute the offence.

There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commission’s Consultation Paper on The crime of libel .

Blasphemy and common law
The court would like to acknowledge its indebtedness to the researches of counsel and of the Law Reform Commission on the history of the crime of blasphemy. We propose to consider first the evolution of the crime of blasphemy in England and then its evolution in Ireland. When the Common Law Courts took over jurisdiction in blasphemy from the Courts of Star Chamber and the Ecclesiastical Courts they seem to have started from the proposition that ‘Christianity is parcel of the laws of England’. Whether this was because they believed that the common law was founded on Christianity or whether it was that Christianity, in its Protestant form, was the established religion in England, is not clear. If they made the distinction they probably took the latter view. Sir Matthew Hale is reported as having said in Taylor’s Case 1 Ventris 293; 3 Keble 607 that:

… contumelious reproaches of God, or the religion established are punishable here … the Christian religion is a part of the law itself.

Originally any challenge to the fundamentals of Christianity was regarded as blasphemous but, from an early stage the law sought to make room for controversies between learned men on the finer points of religion. Towards the end of the 19th century in R. v. Ramsay and Foote (1883) 15 Cox CC 231, Lord Coleridge held at p. 238 that even the fundamentals of religion could be attacked ‘if the decencies of controversy are observed’. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd [1917] AC 406 in the year 1917.

In Bowman’s Case, the House of Lords had to decide whether a bequest to the secular society which was a company formed for the purpose of promoting the view that ‘human conduct should be based upon natural knowledge, and not upon supernatural belief, was invalid as being a bequest for an unlawful *431 purpose constituting the offence of blasphemous libel. The case brought to a head the debate as to whether the mere questioning of the truth of Christianity could be blasphemy or whether it was necessary that the attack should be couched in scurrilous language. As Lord Parker put the matter (at p. 446):

In my opinion to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace.

As long as the mere publication of an attack on Christianity amounted to blasphemy there was no necessity to consider the intentions of the author or the publisher because the mere words were regarded as revealing his intentions.

This matter came to a head in Whitehouse v. Lemon [1979] 1 All ER 898 where the majority in the House of Lords held that an intention to publish blasphemous matter was sufficient mens rea to constitute the offence of blasphemy and that it was not necessary to prove a specific intention to blaspheme. Geoghegan J appears to have accepted this line of reasoning in his judgment in the present case.

The speech of Lord Scarman contains the following remarkable rationale for the existence of an offence of blasphemy at pp. 921–922:

… 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 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 tranquillity 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 …. 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 feelings from outrage and insult.

Ireland
It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.

Speaking of this case, over a century later, Sir Edward Sugden said:

… I am not called upon to give any opinion, whether that prosecution was *432 right or wrong; but it proves this, which is of great importance, that as the law was then administered, it was blasphemy to deny the divinity of Christ; Attorney General v. Drummond (1842) 1 Dr and War 353 at p. 384.

The case of John Syngean Bridgman (referred to in R. v. Petcherini (1855) 8 St Ir (NS) 1086 at p. 1087; 7 Cox CC 79 at p. 84) arose out of disputes between Roman Catholic clergy and Protestant ministers in the middle of the 19th Century. In a fit of anger Bridgman, who was a Franciscan friar, had apparently burnt a Protestant bible in public. The indictment against him certainly appears to reflect a view that any deliberate attack on the Protestant religion as by law established would amount to blasphemy. It reads, in part, as follows:

that he not having the fear of God before his eyes, but intending to scandalise and vilify the true Protestant religion, as by law established within these realms, and to blaspheme the Holy Gospel of God and of Our Saviour Jesus Christ … unlawfully, wickedly, and blasphemously, in the presence of divers liege subjects of our Queen, set fire to and partly consumed by fire a copy of the Holy Gospel of God, being the authorised version thereof, appointed to be read in Churches, called the New Testament; and then and there holding in his hands said New Testament, wickedly and blasphemously, in the presence and hearing of divers liege subjects, then and there pronounced and spoke with a loud voice, and published of and concerning said New Testament, as aforesaid, these profane and most blasphemous words, that is to say, that it (meaning the New Testament) is not the Word of God, but the Word of the Devil, and the Devil’s Book — Luther’s Bible, or your Heretic Bible — to the great dishonour of Almighty God, and in contempt of the Protestant religion, and to the great scandal of the profession thereof, and against peace, etc. [Rev. P. M’Loskey, The Trial and Conviction of a Franciscan Monk, at Mayo Spring Assizes, 1852, for burning and blaspheming the Holy Scriptures (Dublin, 1852), p. 13]

However, Baron Lefroy, in charging the jury, seems to suggest that any burning of any version of the bible would be blasphemous although he does stress that the bible actually burned was the authorised version. He states as follows:

… you are to try whether the traverser is at liberty to indulge his uncharitable feelings under the plea of the conduct of others [there had been a suggestion that his action had been provoked by the activities of the Protestant missionaries], and, by his conduct insult Christianity itself …. It is for you to say whether these charges have been proved or not, and whether you are satisfied that he said he was not burning the Word of God, but the Word of the Devil, and whether the words were applied to the authorised version of the Scriptures; because whether it be the Douay Bible or the Rhenish Testament; and the words used would be blasphemous against either version, as showing a want of reverence for the Scriptures; because it is not the version of the Scriptures which will warrant the commission of such an offence. It is not because fallible man *433 cannot agree upon the translation of a portion of the Scriptures, that they are to be treated with this want of reverence; that because it is not a particular translation, it shall be treated with such vilification. Is it to be held that, when the law of the land sanctions a certain version, and calls it the authorised version, is it to be said that any man, be his opinions what they may, shall pour contempt upon it, and thus be guilty of a violation of the law? Is he to be at liberty to throw that book into the fire, and say that he vilify that book which the law has sanctioned? It has been said to you that this act must be done with intent, and on that the law is clear; every man is presumed to understand the consequences of his own acts. If a man can throw a book into the fire, whether it be the Douay Bible or the authorised version, and if you believe that he did not intend any contempt, then you should acquit him: But if you believe that he did burn the book, and made use of the language it will be your duty to find him guilty [Rev P. M’Loskey, op. cit., pp. 26–27]

Another case involving bible burning occurred later in 1855. The accused was a Redemptorist Father who had delivered a series of sermons in Kingstown (as it then was) aimed at discouraging people from reading ‘evil’ literature. He invited his listeners to collect together any such literature they might find in their homes and to bring them to him for burning on a bonfire in the chapel yard. Mr Thomas O’Hagan QC, defending the priest said:

And the people obeyed his call, and multitudes of books were brought to him — pamphlets in bundles — infamous periodicals which are the daily food of the popular mind in England — translations of sensual novels from the French, and vile English novels, whose very names are an abomination [See Selected Speeches and Arguments of the Rt. Hon. Thomas, Baron O’Hagan (ed. G. Teeling, London, 1885), p. 261]

Unfortunately among the pile of books, unknown to the Rev Father, was a copy of the bible.

On a prosecution of the priest for blasphemy Baron Green told the jury that it did not matter which particular version of the bible had been burned. What was material was whether the defendant intended to burn it. The defendant was acquitted. [See Paul O’Higgins, Blasphemy in Irish Law (1960) 23 MLR 151, 162–163].

In 1869 the Church of Ireland was disestablished. There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. (The Law Reform Commission’s report put the last mentioned case in 1885 (see p. 17), but this appears to be a misprint for 1855.)

It is worth noting that all three prosecutions for blasphemy of which we have record in Ireland involved the prosecution of clergymen — one Unitarian minister and two Roman Catholic priests.

*434

The 1922 Constitution
The 1922 Constitution was a totally secular Constitution. Article 8 of the Constitution provided (in part) as follows:

Article 8. Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status ….

Article 9 provided (in part) as follows:

Article 9. The right of free expression of opinion … is guaranteed for purposes not opposed to public morality.

The right of freedom of conscience, freedom of religion and freedom of expression as set out in the 1922 Constitution are wide enough to cover the views of citizens of all religions and of none. The tenets of any one religion do not enjoy greater protection in law than those of any other. There can be no question therefore of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality.

Article 73 carried forward the laws of the previous regime:

Subject to this Constitution and to the extent to which they are not inconsistent therewith.

It is debatable to what extent, if at all, it carried forward the common law in relation to blasphemy.

If the Church of England had been disestablished and if England had introduced a secular Constitution it is highly probable that the debate in the House of Lords in Whitehouse v. Lemon would have taken a very different course. That case would not, therefore, appear to be a safe guide for this Court to follow in the present case.

Constitution of Ireland
The Constitution of Ireland re-enacted the provisions of the Constitution of the Irish Free State guaranteeing freedom of conscience and the free profession and practice of religion. It also re-enacted the provision prohibiting the State from imposing any disability or making any discrimination on the ground of religious profession, belief or status. It did however add a new section in the following terms: *435

Article 44.

1.1° The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2° The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.

3° The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.

In 1972 the fifth amendment to the Constitution removed the second two subsections quoted above leaving the religious guarantee in effect, as it had been under the Constitution of the Irish Free State, but subject to the significant addition of the first subsection quoted above.

The Constitution also introduced (in Article 40.1) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.1 goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.

This constitutional framework is not dissimilar to that mentioned by Lord Scarman as desirable in the passage from his speech in Whitehouse v. Lemon quoted earlier in this judgment. But as with Lord Scarman’s suggestion, though for different reasons, the implications of it for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established church and an established religion could survive in such a constitutional framework. Certainly it is difficult to see how the view of the majority in the House of Lords in Whitehouse v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion.

There is no doubt that the crime of blasphemy exists as an offence in Irish law because the Constitution says so. It says in Article 40.6.1°(i) that the pub *436 lication or utterance of blasphemous matter ‘is an offence which shall be punishable in accordance with law’. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. S. 7(2) of the Censorship of Films Act 1923 and s. 13(1) of the Defamation Act 1961 assume that the crime exists without defining it. It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern state which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.

From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or of polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not? The following passage from the judgment of Walsh J in Quinn’s Supermarket v. Attorney General [1972] IR 1 at pp. 23–24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:

Our Constitution reflects a firm conviction that we are religious people. The Preamble to the Constitution acknowledges that we are a Christian people and Article 44.1.1°, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44.1 of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so.

In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out nei *437 ther the actus reus nor the mens rea is clear. The task of defining the crime is one for the legislature, not for the courts. In the absence of legislation and in the present uncertain state of the law the court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents.

The present case
Mr Brady, in the manner of an able advocate, got across to the court the indignation which his client felt at what he perceived to be an insult to the sacrament of the eucharist.

The cartoon may indeed have been in very bad taste. But the court having studied the cartoon and the article by Dr Conor Cruise-O’Brien which it accompanies, is convinced that no insult to the blessed sacrament was intended and that no jury could reasonably conclude that such insult existed or was intended to exist. The theme of Dr Conor Cruise-O’Brien’s article, whether well founded or not, was that the politicians had resisted the guidance of the Roman Catholic Church on the issue of divorce but that it was not equally clear that they would resist such guidance on future occasions. It appears to the court that the cartoon was meant to illustrate this theme and no more. That is why the question mark is placed after the phrase ‘Hello progress — bye bye Father’.

The court fully agrees with the opinion of the learned High Court judge on this aspect of the case and will accordingly dismiss the appeal.

 

In the Matter of the Defamation Act 1961 and

John Corway v. Independent Newspapers (Ireland) Ltd, Independent Newspapers plc and Aengus Fanning

1996 Nos. 322 and 345

Supreme Court

30 July 1999

[2000] 1 I.L.R.M. 426
(Hamilton CJ, Barrington, Murphy, Lynch and Barron JJ)

BARRINGTON J

delivered the judgment of the court on 30 July 1999 saying: This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish law.

The appeal is against the judgment and order of Geoghegan J, delivered and made herein on 23 October 1996, whereby he refused the applicant leave to institute a criminal prosecution for blasphemy against the respondents pursuant to the provisions of s. 8 of the Defamation Act 1961.

S. 8 of the Defamation Act 1961 reads as follows:

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

Facts
The applicant is a carpenter and resides at Harolds Cross, Dublin. The first and second named respondents are the proprietors, and the third named respondent the editor, of the Sunday Independent which is a weekly newspaper with a large circulation in Ireland.

On 26 November 1995 the Sunday Independent, in the wake of the divorce referendum, carried an article, by Dr Conor Cruise-O’Brien, on the implications of that referendum. Associated with the article was a cartoon which depicted on the right a plump and comic caricature of a priest. The priest was holding a host in his right hand and a chalice in his left hand. He appears to be offering the host to three figures on the left hand side of the cartoon. The three figures are the prominent politicians Mr Prionsias de Rossa, Mr Ruari Quinn and Mr John Bruton. But they are turning away and appear to be waving goodbye. At the top of the cartoon are printed the words ‘Hello progress — bye bye Father’ followed by a question mark.

The words at the top of the cartoon are clearly meant to be a play upon a phrase used, during the referendum campaign, by some of the campaigners against divorce. That is to say ‘Hello divorce — bye bye daddy’.

*429

The applicant maintains that the cartoon picture and caption appear calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the eucharist and its administration as objects of scorn and derision.

He continues:

As one professing and endeavouring to practise the Christian religion through membership of the Roman Catholic Church I have suffered offence and outrage by reason of the insult, ridicule and contempt shown towards the sacrament of the eucharist as a result of the publication of the matter complained of herein and I am aware of other persons having also so suffered. It is intended that the proposed charge of blasphemous libel shall refer in particular to the cartoon and captions hereinbefore exhibited.

The applicant says that he has been advised by counsel and solicitor and believes that the composition, printing and publication of the matter complained of could be held to constitute offences to which the provisions of s. 13(1) of the Defamation Act 1961 will apply and that he has also been advised and believes that the subject matter of the application herein is such that there is a clear prima facie case for the respondents and each of them to answer in the event of the matter coming before the criminal court.

S. 13(1) of the Defamation Act 1961, provides as follows:

Every person who composes, prints or publishes any blasphemous … libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years.

The basic reason for Geoghegan J’s decision was that he did not believe that the facts complained of amounted to blasphemy. In other words he did not believe that there was any actus reus. But he said that had he believed that there was sufficient evidence of an actus reus he would have regarded the act of publishing as being evidence for the purpose of establishing mens rea and would not have required evidence of a specific intention to blaspheme.

Constitutional provision
The reference to blasphemy in the Constitution occurs in Article 40.6.1°(i). Significantly it appears as a reservation on the ‘right of the citizens to express freely their convictions and opinions’. Having guaranteed liberty for the exercise of that right the Constitution goes on to provide that:

The publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law.

*430

There is no definition of blasphemy in the Constitution nor is there any Act of the Oireachtas defining blasphemy. Mr Murdoch in his Dictionary of Irish Law (Topaz Publications, Dublin 1988) defines blasphemy as follows:

The crime which consists of indecent and offensive attacks on Christianity, or the scriptures, or sacred persons or objects calculated to outrage the feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law …. The mere denial of Christian teaching is not sufficient to constitute the offence.

There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commission’s Consultation Paper on The crime of libel .

Blasphemy and common law
The court would like to acknowledge its indebtedness to the researches of counsel and of the Law Reform Commission on the history of the crime of blasphemy. We propose to consider first the evolution of the crime of blasphemy in England and then its evolution in Ireland. When the Common Law Courts took over jurisdiction in blasphemy from the Courts of Star Chamber and the Ecclesiastical Courts they seem to have started from the proposition that ‘Christianity is parcel of the laws of England’. Whether this was because they believed that the common law was founded on Christianity or whether it was that Christianity, in its Protestant form, was the established religion in England, is not clear. If they made the distinction they probably took the latter view. Sir Matthew Hale is reported as having said in Taylor’s Case 1 Ventris 293; 3 Keble 607 that:

… contumelious reproaches of God, or the religion established are punishable here … the Christian religion is a part of the law itself.

Originally any challenge to the fundamentals of Christianity was regarded as blasphemous but, from an early stage the law sought to make room for controversies between learned men on the finer points of religion. Towards the end of the 19th century in R. v. Ramsay and Foote (1883) 15 Cox CC 231, Lord Coleridge held at p. 238 that even the fundamentals of religion could be attacked ‘if the decencies of controversy are observed’. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd [1917] AC 406 in the year 1917.

In Bowman’s Case, the House of Lords had to decide whether a bequest to the secular society which was a company formed for the purpose of promoting the view that ‘human conduct should be based upon natural knowledge, and not upon supernatural belief, was invalid as being a bequest for an unlawful *431 purpose constituting the offence of blasphemous libel. The case brought to a head the debate as to whether the mere questioning of the truth of Christianity could be blasphemy or whether it was necessary that the attack should be couched in scurrilous language. As Lord Parker put the matter (at p. 446):

In my opinion to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace.

As long as the mere publication of an attack on Christianity amounted to blasphemy there was no necessity to consider the intentions of the author or the publisher because the mere words were regarded as revealing his intentions.

This matter came to a head in Whitehouse v. Lemon [1979] 1 All ER 898 where the majority in the House of Lords held that an intention to publish blasphemous matter was sufficient mens rea to constitute the offence of blasphemy and that it was not necessary to prove a specific intention to blaspheme. Geoghegan J appears to have accepted this line of reasoning in his judgment in the present case.

The speech of Lord Scarman contains the following remarkable rationale for the existence of an offence of blasphemy at pp. 921–922:

… 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 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 tranquillity 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 …. 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 feelings from outrage and insult.

Ireland
It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.

Speaking of this case, over a century later, Sir Edward Sugden said:

… I am not called upon to give any opinion, whether that prosecution was *432 right or wrong; but it proves this, which is of great importance, that as the law was then administered, it was blasphemy to deny the divinity of Christ; Attorney General v. Drummond (1842) 1 Dr and War 353 at p. 384.

The case of John Syngean Bridgman (referred to in R. v. Petcherini (1855) 8 St Ir (NS) 1086 at p. 1087; 7 Cox CC 79 at p. 84) arose out of disputes between Roman Catholic clergy and Protestant ministers in the middle of the 19th Century. In a fit of anger Bridgman, who was a Franciscan friar, had apparently burnt a Protestant bible in public. The indictment against him certainly appears to reflect a view that any deliberate attack on the Protestant religion as by law established would amount to blasphemy. It reads, in part, as follows:

that he not having the fear of God before his eyes, but intending to scandalise and vilify the true Protestant religion, as by law established within these realms, and to blaspheme the Holy Gospel of God and of Our Saviour Jesus Christ … unlawfully, wickedly, and blasphemously, in the presence of divers liege subjects of our Queen, set fire to and partly consumed by fire a copy of the Holy Gospel of God, being the authorised version thereof, appointed to be read in Churches, called the New Testament; and then and there holding in his hands said New Testament, wickedly and blasphemously, in the presence and hearing of divers liege subjects, then and there pronounced and spoke with a loud voice, and published of and concerning said New Testament, as aforesaid, these profane and most blasphemous words, that is to say, that it (meaning the New Testament) is not the Word of God, but the Word of the Devil, and the Devil’s Book — Luther’s Bible, or your Heretic Bible — to the great dishonour of Almighty God, and in contempt of the Protestant religion, and to the great scandal of the profession thereof, and against peace, etc. [Rev. P. M’Loskey, The Trial and Conviction of a Franciscan Monk, at Mayo Spring Assizes, 1852, for burning and blaspheming the Holy Scriptures (Dublin, 1852), p. 13]

However, Baron Lefroy, in charging the jury, seems to suggest that any burning of any version of the bible would be blasphemous although he does stress that the bible actually burned was the authorised version. He states as follows:

… you are to try whether the traverser is at liberty to indulge his uncharitable feelings under the plea of the conduct of others [there had been a suggestion that his action had been provoked by the activities of the Protestant missionaries], and, by his conduct insult Christianity itself …. It is for you to say whether these charges have been proved or not, and whether you are satisfied that he said he was not burning the Word of God, but the Word of the Devil, and whether the words were applied to the authorised version of the Scriptures; because whether it be the Douay Bible or the Rhenish Testament; and the words used would be blasphemous against either version, as showing a want of reverence for the Scriptures; because it is not the version of the Scriptures which will warrant the commission of such an offence. It is not because fallible man *433 cannot agree upon the translation of a portion of the Scriptures, that they are to be treated with this want of reverence; that because it is not a particular translation, it shall be treated with such vilification. Is it to be held that, when the law of the land sanctions a certain version, and calls it the authorised version, is it to be said that any man, be his opinions what they may, shall pour contempt upon it, and thus be guilty of a violation of the law? Is he to be at liberty to throw that book into the fire, and say that he vilify that book which the law has sanctioned? It has been said to you that this act must be done with intent, and on that the law is clear; every man is presumed to understand the consequences of his own acts. If a man can throw a book into the fire, whether it be the Douay Bible or the authorised version, and if you believe that he did not intend any contempt, then you should acquit him: But if you believe that he did burn the book, and made use of the language it will be your duty to find him guilty [Rev P. M’Loskey, op. cit., pp. 26–27]

Another case involving bible burning occurred later in 1855. The accused was a Redemptorist Father who had delivered a series of sermons in Kingstown (as it then was) aimed at discouraging people from reading ‘evil’ literature. He invited his listeners to collect together any such literature they might find in their homes and to bring them to him for burning on a bonfire in the chapel yard. Mr Thomas O’Hagan QC, defending the priest said:

And the people obeyed his call, and multitudes of books were brought to him — pamphlets in bundles — infamous periodicals which are the daily food of the popular mind in England — translations of sensual novels from the French, and vile English novels, whose very names are an abomination [See Selected Speeches and Arguments of the Rt. Hon. Thomas, Baron O’Hagan (ed. G. Teeling, London, 1885), p. 261]

Unfortunately among the pile of books, unknown to the Rev Father, was a copy of the bible.

On a prosecution of the priest for blasphemy Baron Green told the jury that it did not matter which particular version of the bible had been burned. What was material was whether the defendant intended to burn it. The defendant was acquitted. [See Paul O’Higgins, Blasphemy in Irish Law (1960) 23 MLR 151, 162–163].

In 1869 the Church of Ireland was disestablished. There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. (The Law Reform Commission’s report put the last mentioned case in 1885 (see p. 17), but this appears to be a misprint for 1855.)

It is worth noting that all three prosecutions for blasphemy of which we have record in Ireland involved the prosecution of clergymen — one Unitarian minister and two Roman Catholic priests.

*434

The 1922 Constitution
The 1922 Constitution was a totally secular Constitution. Article 8 of the Constitution provided (in part) as follows:

Article 8. Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status ….

Article 9 provided (in part) as follows:

Article 9. The right of free expression of opinion … is guaranteed for purposes not opposed to public morality.

The right of freedom of conscience, freedom of religion and freedom of expression as set out in the 1922 Constitution are wide enough to cover the views of citizens of all religions and of none. The tenets of any one religion do not enjoy greater protection in law than those of any other. There can be no question therefore of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality.

Article 73 carried forward the laws of the previous regime:

Subject to this Constitution and to the extent to which they are not inconsistent therewith.

It is debatable to what extent, if at all, it carried forward the common law in relation to blasphemy.

If the Church of England had been disestablished and if England had introduced a secular Constitution it is highly probable that the debate in the House of Lords in Whitehouse v. Lemon would have taken a very different course. That case would not, therefore, appear to be a safe guide for this Court to follow in the present case.

Constitution of Ireland
The Constitution of Ireland re-enacted the provisions of the Constitution of the Irish Free State guaranteeing freedom of conscience and the free profession and practice of religion. It also re-enacted the provision prohibiting the State from imposing any disability or making any discrimination on the ground of religious profession, belief or status. It did however add a new section in the following terms: *435

Article 44.

1.1° The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2° The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.

3° The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.

In 1972 the fifth amendment to the Constitution removed the second two subsections quoted above leaving the religious guarantee in effect, as it had been under the Constitution of the Irish Free State, but subject to the significant addition of the first subsection quoted above.

The Constitution also introduced (in Article 40.1) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.1 goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.

This constitutional framework is not dissimilar to that mentioned by Lord Scarman as desirable in the passage from his speech in Whitehouse v. Lemon quoted earlier in this judgment. But as with Lord Scarman’s suggestion, though for different reasons, the implications of it for the crime of blasphemy would need to be worked out in legislation. It is difficult to see how the common law crime of blasphemy, related as it was to an established church and an established religion could survive in such a constitutional framework. Certainly it is difficult to see how the view of the majority in the House of Lords in Whitehouse v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience, and the free profession and practice of religion.

There is no doubt that the crime of blasphemy exists as an offence in Irish law because the Constitution says so. It says in Article 40.6.1°(i) that the pub *436 lication or utterance of blasphemous matter ‘is an offence which shall be punishable in accordance with law’. Yet the researches of the Law Reform Commission would appear to indicate that the framers of the Constitution did not intend to create a new offence. This may explain why there is no statutory definition of blasphemy. S. 7(2) of the Censorship of Films Act 1923 and s. 13(1) of the Defamation Act 1961 assume that the crime exists without defining it. It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern state which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.

From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or of polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult but anothers did not? The following passage from the judgment of Walsh J in Quinn’s Supermarket v. Attorney General [1972] IR 1 at pp. 23–24 was written before the passing of the fifth amendment to the Constitution but it applies, mutatis mutandis, with even greater force to the present text of Article 44 of the Constitution:

Our Constitution reflects a firm conviction that we are religious people. The Preamble to the Constitution acknowledges that we are a Christian people and Article 44.1.1°, acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith. In Article 44.1 of the Constitution the State recognises the existence of the several religious denominations there named, including the Jewish Congregations, as well as all other unnamed ones existing at the date of the coming into operation of the Constitution. This declaration is an express recognition of the separate co-existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomination, and it does not permit the State to do so.

In this state of the law, and in the absence of any legislative definition of the constitutional offence of blasphemy, it is impossible to say of what the offence of blasphemy consists. As the Law Reform Commission has pointed out nei *437 ther the actus reus nor the mens rea is clear. The task of defining the crime is one for the legislature, not for the courts. In the absence of legislation and in the present uncertain state of the law the court could not see its way to authorising the institution of a criminal prosecution for blasphemy against the respondents.

The present case
Mr Brady, in the manner of an able advocate, got across to the court the indignation which his client felt at what he perceived to be an insult to the sacrament of the eucharist.

The cartoon may indeed have been in very bad taste. But the court having studied the cartoon and the article by Dr Conor Cruise-O’Brien which it accompanies, is convinced that no insult to the blessed sacrament was intended and that no jury could reasonably conclude that such insult existed or was intended to exist. The theme of Dr Conor Cruise-O’Brien’s article, whether well founded or not, was that the politicians had resisted the guidance of the Roman Catholic Church on the issue of divorce but that it was not equally clear that they would resist such guidance on future occasions. It appears to the court that the cartoon was meant to illustrate this theme and no more. That is why the question mark is placed after the phrase ‘Hello progress — bye bye Father’.

The court fully agrees with the opinion of the learned High Court judge on this aspect of the case and will accordingly dismiss the appeal.