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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Corway v. Independent Newspapers (Ireland) Limited [1999] IESC 5; [1999] 4 IR 485; [2000] 1 ILRM 426 (30th July, 1999)
Cite as: [1999] IESC 5, [1999] 4 IR 485, [2000] 1 ILRM 426

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Corway v. Independent Newspapers (Ireland) Limited [1999] IESC 5; [1999] 4 IR 485; [2000] 1 ILRM 426 (30th July, 1999)


Hamilton C.J. 345/96
Barrington J.
Murphy J.
Lynch J.
Barron J.













JUDGMENT of the Court delivered on the 30th day of July,
1999, by Barrington J.

1. This appeal raises an important point concerning the position and particulars of the offence of blasphemy in Irish Law.

2. The 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.

Section 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”.


3. The Applicant is a carpenter and resides at Harolds Cross, Dublin.

4. The first and second Respondents are the proprietors, and the third Respondent the Editor, of the “Sunday Independent” which is a weekly newspaper with a large circulation in Ireland.

5. On 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 “Hello progress - bye bye Father” followed by a question mark.

6. 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”.

7. 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”.

8. 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 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 prima facie case for the Respondents and each of them to answer in the event of the matter coming before the Criminal Court.

Section 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”.

9. The 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 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.


10. The reference to blasphemy in the Constitution occurs in Article 40.6 paragraph 1 sub-paragraph (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”.

11. 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”.

12. There is an extremely useful discussion on the law concerning blasphemy in the Law Reform Commissions Consultation Paper on “The crime of libel”.


13. 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 and of the religion established are punishable here.... the Christian religion is part of the law itself”.

14. 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 Ramsay and Foote , Lord Coleridge held that even the fundamentals of religion could be attacked “if the decencies of controversy are observed”. [1883] 15 Cox C.C. 231. This view was followed in all subsequent prosecutions and was approved by the House of Lords in Bowman v. Secular Society Ltd. in the year 1917 [1917] AC 406.

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 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 pg. 466):-
“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”.

15. 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.

16. 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”.

17. 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.

18. 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 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;”
A.G. v. Drummond (1842 ) 1 Or. and War. 353 at 384.

The case of John Syngean Bridgman [referred to in R. v. Petcherine (1855) 8 St. Ir. (N.S.) 1086 at 1087; 7 Cox C.C. 79 at 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 Srping Assizes, 1852, for burning and blaspheming the Holg Scriptures (Dublin, 1852), p.13]

19. 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:-

“ 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 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 to be held that, when the law of the land sanctions a certain version, and calls it the authorised version, it is 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]

20. 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 Q.C., 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]

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

22. 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 M.L.R 151, 162-163]

23. In 1869 the Church of Ireland was disestablished.

24. 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 p17), but this appears to be a misprint for 1855.)

25. 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.


26. 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....”

27. 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.”

28. 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.

29. 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”.

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

in relation to blasphemy.

31. 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.


32. 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:-

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.
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.
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”.

33. In 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.

34. The 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.

35. 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.

36. There 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 “is 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.

37. 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 p. 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, s. 1, sub-s. 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, s. 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”.

38. 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 neither 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.


39. 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.

40. 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”.

41. 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.


© 1999 Irish Supreme Court

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