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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Corway v. Independent Newspapers (Ireland) Limited  IESC 5;  4 IR 485;  1 ILRM 426 (30th July, 1999)
Cite as:  IESC 5,  4 IR 485,  1 ILRM 426
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appeal raises an important point concerning the position and particulars of the
offence of blasphemy in Irish Law.
appeal is against the Judgment and Order of Geoghegan J., delivered and made
herein on the 23rd day of October, 1996, whereby he refused the Applicant leave
to institute a criminal prosecution for blasphemy against the Respondents
pursuant to the provisions of Section 8 of the Defamation Act, 1961.
the 26th 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
progress - bye bye Father”
followed by a question mark.
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
divorce - bye bye daddy”.
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
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 Section 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
case for the Respondents and each of them to answer in the event of the matter
coming before the Criminal Court.
basic reason for Mr. Justice Geoghegan’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
But he said that had he believed that there was sufficient evidence of an
he would have regarded the act of publishing as being evidence for the purpose
and would not have required evidence of a specific intention to blaspheme.
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:-
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
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
(1 Ventris 293, 3 Keble 607) that
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
Lord Coleridge held that even the fundamentals of religion could be attacked
the decencies of controversy are observed”.
15 Cox C.C. 231.
view was followed in all subsequent prosecutions and was approved by the House
of Lords in
v. Secular Society Ltd.
in the year 1917
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
 1 All ER 898
where the majority in the House of Lords held that an intention to publish
blasphemous matter was sufficient
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.
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.
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:-
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
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 Q.C., defending the
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
in Irish Law,
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 p17), but
this appears to be a misprint for 1855.)
1922 Constitution was a totally secular Constitution. Article 8 of the
Constitution provided (in part) as follows:-
9 provided (in part) as follows:-
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.
73 carried forward the laws of the previous regime:
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
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 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:-
1972 the fifth amendment to the Constitution removed the second two
sub-sections 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 sub-section quoted above.
Constitution also introduced (in Article 40.I) 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.I 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.
constitutional framework is not dissimilar to that mentioned by Lord Scarman as
desirable in the passage from his speech in
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
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.
is no doubt that the crime of blasphemy exists as an offence in Irish Law
because the Constitution says so. It says that the publication or utterance
of blasphemous matter
an offence which shall be punishable in accordance with the 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. The Censorship
of Films Act, 1923 S.7 (2) 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.
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
Supermarket v. Attorney General  IR 1 at p. 23 - 24
written before the passing of the fifth amendment to the Constitution but it
with even greater force to the present text of Article 44 of the Constitution:-
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
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.
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
progress - bye bye Father”.