Ireland (1992) the Irish government banned a voluntary body from

advertising in Ireland abortion services available in England. Although

abortion was then unlawful under the Irish constitution it was not

unlawful under Irish law for an Irish person to have an abortion in

England. The ban was held by a majority of fifteen to eight to be

contrary to Art. 10. The majority held that the ban was for a legitimate

purpose, namely the protection of morals, but that it went well beyond

what was necessary for that purpose even given the margin of appre-

ciation. The court therefore avoided ruling on the broader question

whether banning abortion was contrary to the convention. This would

have involved the right to privacy and might have raised the question

of the right to life. However the majority rejected the argument that

protecting the life of an unborn child outweighed all other interests.

In Dudgeon v. UK (1981) the court was split on the question whether

Northern Ireland could outlaw homosexual acts between consenting

adults in private. A majority held that this went beyond what was

reasonably necessary in a democratic society to preserve order and

morality while the minority deferred to the predominant moral view in

the province, arguing that a shared morality was a legitimate concern

of the state.

It is unlikely that the Human Rights Act 1998 will substantially

affect English law in relation at least to obscenity. Not only is there the

specific public morality override but it is also arguable that public

displays of pornography violate the right to privacy in Art. 8 and may

also be discriminatory (see R. v. Butler (1992), Canadian Supreme

Court). It is an offence to publish an ‘obscene’ article (including films

and videos, and placing obscene material on the Internet: Obscene

Publications Act 1959 s. 2, Criminal Justice and Public Order Act 1994

s. 168). There is a similar offence under the Theatres Act 1968 in

relation to live performances, and the Video Recordings Act 1984 as

amended by the Criminal Justice and Public Order Act 1994 makes it

470 General Principles of Constitutional and Administrative Law

an offence to supply a video that has not been classified by the British

Board of Film Censors.

The statutory meaning of obscene is that the article taken as a whole

has a tendency to ‘deprave and corrupt’ a significant proportion of

those likely to see, hear or read it (s. 1 (1)). The meaning of deprave

and corrupt has been left to the jury or magistrate and is therefore

subject to public opinion as to the limits of acceptable behaviour.

Anti-social behaviour is not required (see DPP v. Whyte (1972); DPP

v. A&BC Chewing Gum Ltd (1968)). The emphasis on those likely to

have access to offending material is an important element of ECHR

jurisprudence. For example, an exhibition open to the public at large

without warning as to its contents may lawfully be controlled (see

Muller v. Switzerland (1988)). The same applies to material targeted at

vulnerable groups (Handyside v. UK (1974)).

There is a defence of ‘public good’ (s. 4) where the publication,

although obscene, is in the interests of science, literature, art or learn-

ing or other objects of general public concern and in the case of films,

drama, opera, ballet or any other art (see DPP v. Jordan (1977)).

A similar defence applies under the Theatres Act 1968. The defence of

public good is a classical example of an attempt to ‘balance’ incom-

mensurables. Being corrupted is an evil, but is it possible rationally to

decide when the evil is outweighed by literary merit?

The police have power under s. 3 of the Obscene Publications Act

1959 to seize under a magistrate’s warrant any ‘article’ (including

books, magazines, pictures, films, tapes and disks) which they have

reason to believe is obscene. The magistrates may then make a forfeiture

order to destroy the article. This might be regarded as disproportionate

under the Convention in relation to property rights. Customs officers

have an even wider power to confiscate materials which are ‘indecent’ or

obscene (Customs and Excise Management Act 1979). It seems that

indecent material is something that is capable of causing offence

whether or not it depraves and corrupts (see R. v. Stanley (1965)). There

is also a common law offence of indecency which requires only public

offence (see R. v. Gibson: (1990)). This might be challenged under the

Human Rights Act 1998 as disproportionate.

There are many statutory offences connected with obscenity and

indecency which are designed to protect particular interests such as

those of children (Protection of Children Act 1978, Criminal Justice

and Public Order Act 1994 s. 57 (7), indecent photography and com-

puter images) or which apply to particular outlets (Indecent Displays

(Control) Act 1981; Local Government (Miscellaneous Provisions)

Act 1982). The latter statute which gives local authorities draconian

471

Freedom of Political Expression

powers to regulate sex shops has survived considerable challenge (see

Quietlynn Ltd v. Southend on Sea BC (1990); McMonagle v. West-

minster City Council (1990); R. v. Birmingham City Council ex parte

Sheptonhurst (1990)).

19.3.3 Hate speech

Blasphemy

This is an ancient common law offence the gist of which is an attack

upon religion. Until the nineteenth century, church and state were

closely related, so blasphemy could be used as a political weapon. The

modern law claims to be neutral as to religious faith so religious belief

can be denied or questioned provided that ‘the decencies of controversy

are observed’ (see Bowman v. Secular Society (1917); R. v. Ramsey &

Foot (1883)). However, the offence is a wide one and is committed by

conduct which seriously offends the ordinary Christian by ‘insulting or

vilifying the deity, God or Christianity’ (see R. v. Lemon (1979); poem

depicting Christ as homosexual). The offence seems to apply only to

the Christian faiths and is not related to public order (R. v. Chief

Metropolitan Stipendiary Magistrate ex parte Choudhury (1991); cf. R.

v. Gott (1922); R. v. Gathercole (1938)). Reformers are divided between

those who would abolish blasphemy and those who would extend it to

other religions in order to reflect our multi-cultural society.

The European Convention gives considerable importance to protect-

ing freedom of religion particularly in the case of dominant religions.

Moreover the Human Rights Act 1998 s. 13 requires the court to have

particular regard in matters involving religious organisations to the

importance of freedom of thought, conscience and religion. This could

be read as authorising religious organisations to violate other rights

such as privacy or to discriminate on religious grounds.

In Otto Preminger Institut v. Austria (1994) the state seized a film

which offended the Roman Catholic sensibilities of most of the people

of the Tyrol. Among other things the film depicted Christ and his

mother as in league with the devil. The ECHR held that the seizure

was lawful for the purpose of protecting the rights of others. However,

it is difficult to see how an insult that does not prevent the practice of a

religion can be regarded as interfering with rights, particularly as the

film in question was limited to a small specialist cinema. Any harm lay

merely in knowing that the film existed.

Recognising that there are differences in religious sensibilities

between states and regions, the Court conceded a wide margin of

appreciation to the state. Similarly in Wingrove v. UK (1996) the Court

472 General Principles of Constitutional and Administrative Law

upheld a decision of the UK film censors not to grant a distribution

certificate to a video on the grounds of blasphemy. Indeed in Otto

Preminger Institut the court seems to have gone further by saying that

‘in the context of religious opinion and beliefs . . . may legitimately

be included an obligation to avoid as far as possible expressions that

are gratuitously offensive to others and thus an infringement of their

rights, and which therefore do not contribute to any form of public

debate capable of furthering progress in human affairs.’ This seems

to run counter to at least one of the rationales for protecting free-

dom of expression by allowing the state to decide what is a worthy

purpose of speech.

The Anti-Terrorism, Crime and Security Bill proposed offences rela-

ting to religious hatred by the device of extending the law relating to

racial hatred (below) to religious hatred including lack of religious

belief. This would be a significant restriction upon freedom of expres-

sion in that unlike racial characteristics, religious beliefs are held