Blasphemy Law In Ireland

In Ireland, "publication or utterance of blasphemous matter", defamatory of any religion, was a criminal offence until 17 January 2020. It was a requirement of the 1937 Constitution until removed after a 2018 referendum. The common law offence of blasphemous libel, applicable only to Christianity and last prosecuted in 1855, was believed to fulfil the constitutional requirement until a 1999 ruling that it was incompatible with the constitution's guarantee of religious equality. The Defamation Act 2009 included a provision intended to fill the lacuna while being "virtually impossible" to enforce, and no prosecution was made under it. The 2009 statute increased controversy, with proponents of freedom of speech and freedom of religion arguing for amending the constitution. After the 2018 constitutional amendment, a separate bill to repeal the 2009 provision and residual references to blasphemy was enacted in 2019 by the Oireachtas (parliament) and came into force in 2020. The Prohibition of Incitement to Hatred Act 1989, which includes religion among the characteristics protected from incitement to hatred, remains in force.

Early history

The legal system of Ireland grew out of the common law system of English law, and so Irish jurisprudence on blasphemy largely reflected that of England. The common law offence of blasphemous libel applied only to Christianity. Blasphemy could be committed by written or spoken words, by pictures or gestures. Profanity was generally regarded by legal scholars as synonymous with blasphemy. In 1328, Adam Duff O'Toole was burned alive in Dublin for alleged heresy and blasphemy. Initially tried under canon law, he was handed over to the civil power as a repeat offender. He was a member of the O'Toole family which launched Gaelic raids on the Anglo-Norman Pale, and modern historians regard the charges as politically motivated. In later times, the penalty for a first offence of blasphemous libel was an unlimited fine and imprisonment; for a second offence it was banishment.Defamation Bill, 1961—Committee Stage
Dáil Éireann – Volume 191 – 26 July 1961 The established church was the Anglican Church of Ireland from 1536. Whether blasphemy could be committed against a denomination other than the established church was unclear;Defamation Bill 2006: Report and Final Stages.
Seanad Éireann – Volume 188 – 11 March 2008 John Kelly suggested not.

An act of 1634–5 made it an offence to "profanely swear or curse"; this was replaced as "ineffectual" by the Profane Oaths Act 1695, which applied to profanity in the presence of a justice of the peace or mayor. It had fallen into disuse long before its repeal in 2007. During the Commonwealth and Protectorate, English religious laws, including on blasphemy, were applied to Ireland by the Rump Parliament in 1650 and the Third Protectorate Parliament in 1659. Six bills to suppress "blasphemy and profaneness" were introduced in the Parliament of Ireland between 1697 and 1713, but none was passed into law. An act of 1695 abolished the writ ''de heretico comburendo'' under which heretics were burned at the stake; Church of Ireland courts retained the power to punish "atheism, blasphemy, heresy, or schism, or other damnable doctrines and opinions ... by excommunication, deprivation, degradation, and other ecclesiastical censures, not extending to death".

There was a prosecution in the Kingdom of Ireland for blasphemous libel in 1703: Thomas Emlyn, a Unitarian minister, was convicted at Queen's Bench, fined £1,000 and imprisoned for one year for "blasphemously and maliciously" denying the Divinity of Christ. Emlyn later argued that his action was not blasphemy but heresy, which was not a crime in common law or Anglican canon law (though it was so in Catholic canon law). In 1840 Spencer Perceval shared this view. Emlyn remained in debtor's prison after his initial sentence until the fine was reduced to £70. Narcissus Marsh, the Church of Ireland Archbishop of Dublin, began a prosecution against a Presbyterian minister in Drogheda, which was dropped by the Dublin Castle administration sympathetic to dissenters. Other incidents that century did not result in prosecutions. In 1713, Peter Browne, bishop of Cork and Ross preached that loyal toasts to "the glorious, pious, and immortal memory" of King William were blasphemous. The same year, a convocation of the Church of Ireland recommended prosecution of Robert Molesworth for "an indictable profanation of the holy scriptures", after he had quoted Scripture in the course of an insult to their representatives at a viceregal levée. In 1756, Robert Clayton, Bishop of Clogher, questioned the Nicene Creed in a tract on religious tolerance; he was condemned by other bishops, but died before any prosecution for blasphemy was brought.

Two cases in the 1850s reflected Protestant mistrust of Catholicism in what had become the United Kingdom of Great Britain and Ireland. In 1852, John Syngean Bridgman, a Franciscan friar, was convicted at the assizes for County Mayo after burning an Authorized (King James) version of the New Testament.Keane 1991, §15 He viewed it as a souperist work inferior to the Catholic Douay–Rheims Bible. While the indictment described his actions as "in contempt of the Protestant religion", Judge Thomas Langlois Lefroy advised the jury "it is not the version of the Scriptures which will warrant the commission of such an offence" but rather "a want of reverence to the Scriptures".Levy, p.464 In 1855 at Kingstown, a King James Bible and New Testament were burned on a bonfire of "irreligious" books organised by Vladimir Petcherine, a Redemptorist Catholic priest. At Dublin Commission Court, he was acquitted of blasphemy after claiming he had not intended to burn any Bibles. The case, described by as David Lawton as banal and petty, was prosecuted by the Attorney-General for Ireland and the Solicitor-General for Ireland after a complaint from Methodist minister Robert Wallace.

The Irish Church Act 1869 disestablished the Church of Ireland from 1871. In 2003 the UK House of Lords Committee on Religious Offences in England and Wales said it was "arguable that the crime f blasphemydid not survive the disestablishment". There were no subsequent prosecutions before the 1920–1925 partition of Ireland, or in Northern Ireland subsequently.

Independence

Common law precedents persisted after the creation in 1922 of the Irish Free State, provided they were consistent with the 1922 Constitution, and later the current (1937) constitution. The last British prosecution until 1977 was ''Bowman v Secular Society Limited'' in 1917,Keane 1991, §16 in which the Law Lords ruled that the crime of blasphemy implied not just the substance ("denial of Christian doctrine") but also the manner ("vilification, ridicule, or irreverence"). The Irish Law Reform Commission's 1991 consultation paper on the crime of libel states, "if a case had arisen between ''Bowman'' in 1917 and 1937, it seems likely that an Irish court would have found the views in ''Bowman'' persuasive".

The 1937 Constitution as enacted stated "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law" and "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." The constitution also guaranteed certain rights "subject to public order and morality", including citizens' right "to express freely their convictions and opinions" and " eedom of conscience and the free profession and practice of religion". In 1960, Paul O'Higgins criticised the 1937 constitution's blasphemy provision as introducing uncertainty, and possibly increased stricture, compared to the common law as developed to that date.

In Article 44.1 of the constitution as originally enacted, the state recognised "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"; and "also recognise 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." These statements were removed after a 1972 referendum.

In 1956, two Jehovah's Witnesses proselytising in Clonlara were accosted by a mob led by the Catholic parish priest claiming their opposition to Trinitarianism was blasphemous. The priest and ten others were tried for assault and given probation, while the victims were bound over for three months on the legal ground their conduct was likely to lead to a breach of the peace. Both the defendants' counsel and the judge stated the Jehovah's Witnesses had been guilty of blasphemy, leading author Mark O'Brien to comment, "It could also be argued that the last sentence for blasphemy in Ireland was handed down, not in 1703 as often stated, but in 1956".

At the inaugural Dublin Theatre Festival in 1957, '' The Rose Tattoo'' was produced at the Pike Theatre Club, whose owner, Alan Simpson was then prosecuted for "producing for gain an indecent and profane performance", with obscenity later added to the charge. The play's detractors were concerned by its sexual content rather than religion. The Law Reform Commission's 1991 report comments "the equation of indecency and obscenity with profanity is probably misconceived. Although profane matter may sometimes be obscene or indecent, it is not necessarily so."

Section 13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence,Defamation Act, 1961, Section 13
Irish Statute Book which was presumed still to be the common-law offence. The new maximum penalties were seven years' penal servitude, or two years' imprisonment and a £500 fine.

''Corway v. Independent Newspapers''

The only attempted prosecution since 1855 was in 1995–1999,999IESC 5 §24 when John Corway brought private prosecutions against three publications for coverage of the 1995 divorce referendum, specifically an article in '' Hot Press'' and two editorial cartoons, by Wendy Shea in the ''Irish Independent'' and Martyn Turner in ''The Irish Times''. The original cases were dismissed because of the lack of a definition of the crime of blasphemy, with that against Independent Newspapers and editor Aengus Fanning appealed as a test case to the High Court. Shea's cartoon depicted the government parties' leaders snubbing a Catholic priest who was holding out a Communion wafer. Corway submitted, "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."

High Court Justice Hugh Geoghegan

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