R (Green) v City of Westminster Magistrates’ Court
Reference:  EWHC 2785 (Admin)
Court: Administrative Court
Judge: Hughes LJ & Collins J
Date of judgment: 5 Dec 2007
Summary: Judicial review - offence of blasphemous libel - Art 10 ECHR - s.2(4) Theatres Act 1968 - discretion to issue summons
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Instructing Solicitors: Criminal Law Advocates for C; BBC litigation for Mark Thomspon; Olswang for Jonathan Thoday.
On 8 January 2007, the Claimant, Steven Green, a member of an evangelical organisation called Christian Voice, sought to bring a private prosecution for the ancient offence of blasphemous libel against the BBC and the theatrical producer of Jerry Springer: The Opera. The BBC had broadcast the show in January 2005.
The District Judge refused to issue the summons holding that the prosecution was contrary to the Theatres Act 1968, there was no prima facie case of blasphemous libel and the application appeared vexatious given the passage of time. Mr Geen applied for a judicial review of the District Judge’s decision, requiring a mandatory order to issue the two summonses. The BBC and stage producer were represented as interested parties.
Whether the District Judge’s refusal to issue the summons for blasphemous libel was reasonable and lawful.
Held, dismissing the application for judicial review:
(1) As the District Judge correctly held s. 2(4) of the Theatres Act 1968 prevented the prosecution of theatre producers for common law offences where the propensity to offend was the essence of the offence, as in blasphemous libel.
(2) The second limb of the offence, that the publication tends to endanger the peace and cause civil strife was not made out. There was no evidence that the performance of the play over 2 years in London had undermined public order. A protest outside the BBC prior to its broadcast comprised ‘anticipation’ rather than ‘reaction.’
(3) The District Judge was entitled to consider that the production as a whole was an attack on the exploitative chatshow format rather than the Christian religion or sacred symbols.
The argument that the prosecution of the BBC and producers over Jerry Springer: The Opera infringed Art. 10 without sufficient justification was not properly argued or taken into account by the Court as it had not formed any part of the District Judge’s reasoning. The case that the production would cause public disorder was not made out but would be essential to justify interference with freedom of expression under Art. 10(2). Nor, it was noted, was there any interference with Art. 9, (freedom of thought and religion), which could not be affected by public insults in any case. In modern secular Britain one suspects the offence of blasphemous libel will pass into history.