Seán Sherlock (Cork East, Labour) | Oireachtas source

I think we are all republicans here.

The sentence in paragraph (i) of Article 40.6.1^ocurrently reads: "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." As I understand it, as amended, the sentence will read: "The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law."

I want to refer to the Corway v. Independent Newspapers (Ireland) Ltd., case of 1999. In that case the Supreme Court pointed out the difficulty in prosecuting the offence of blasphemy. The case arose out of an attempt by Mr. Corway to bring a private prosecution against the newspaper for publishing what he claimed was a blasphemous cartoon. The difficulty for the court was that neither the Constitution nor any legislation provided a definition setting out the ingredients of the offence of blasphemy.

At common law, blasphemy consisted only of attacks on the doctrines of the established church, Anglicanism, by way of vilification, ridicule or irreverence. The Minister has alluded to this previously. Mr. Justice Barrington gave the lead judgment and stated:

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... The task of defining the crime is one for the legislature, not for the courts.

The question for the Government is whether we could not make exactly the same criticism about at least one of the two offences the Government is proposing to leave in the Constitution. Is the Minister for Justice and Equality satisfied that he could provide a clear and comprehensive definition of the offence of indecent publication? None of the rest of us could. Is the Internet, for instance, covered by the Constitution? Although we still have laws that prohibit indecency-obscenity in various circumstances, there is no constitutional or statutory definition of either indecency or obscenity.

However, this is precisely the problem the Supreme Court identified in regard to blasphemy. As Mr. Justice Barrington stated: “The task of defining the crime is one for the legislature, not for the courts." Therefore, what was the thinking behind the decision to keep some offences in Article 40^owhile deleting this one, given that all three give rise to the same difficulties?

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