In the Case of Wingrove V

In the case of Wingrove v. the UnitedKingdom (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr L.-E. Pettiti,

Mr J. De Meyer,

Mr J.M. Morenilla,

Sir John Freeland,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 29 March, 27 September and

22 October 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

______

Notes by the Registrar

1. The case is numbered 19/1995/525/611. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

______

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 1 March 1995 and by the

Government of the UnitedKingdom of Great Britain and Northern Ireland

("the Government") on 22 March 1995, within the three-month period laid

down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,

art. 47). It originated in an application (no. 17419/90) against the

UnitedKingdom lodged with the Commission under Article 25 (art. 25)

by a British national, Mr Nigel Wingrove, on 18 June 1990.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the UnitedKingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Article 48

(art. 48). The object of the request and of the application was to

obtain a decision as to whether the facts of the case disclosed a

breach by the respondent State of its obligations under Article 10 of

the Convention (art. 10).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of

the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot

the names of the other seven members, namely Mr L.-E. Pettiti,

Mr R. Macdonald, Mr J. De Meyer, Mr J.M. Morenilla,

Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr U. Lohmus (Article 43 in

fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently,

Mr Thór Vilhjálmsson, substitute judge, replaced Mr Macdonald, who was

unable to take part in the further consideration of the case (Rules 22

para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

Government's and the applicant's memorials on 24 November 1995. The

Secretary to the Commission subsequently informed the Registrar that

the Delegate did not wish to reply in writing to the memorials filed.

5. On 17 November 1995, the President, having consulted the

Chamber, had granted leave to Rights International, a New York-based

non-governmental human rights organisation, to submit written comments

on specified aspects of the case (Rule 37 para. 2). Leave was also

granted on the same date, subject to certain conditions, to

two London-based non-governmental human rights organisations, namely

Interights and Article 19, to submit joint written comments. The

comments were received between 2 and 5 January 1996. On

1 February 1996 the applicant submitted an explanatory statement on the

origins and meaning of his video work.

6. In accordance with the President's decision, the hearing took

place in public in the HumanRightsBuilding, Strasbourg, on

27 March 1996. Beforehand, the Court had held a preparatory meeting

and had viewed the video recording in issue in the presence of the

applicant and his representatives.

There appeared before the Court:

(a) for the Government

Mr M.R. Eaton, Deputy Legal Adviser, Foreign and

Commonwealth Office, Agent,

Sir Derek Spencer, Solicitor-General,

Mr P. Havers QC,

Mr N. Lavender, Counsel,

Mr C. Whomersley, Legal Secretariat to the

Law Officers,

Mr R. Clayton, Home Office,

Mr L. Hughes, Home Office, Advisers;

(b) for the Commission

Mr N. Bratza, Delegate;

(c) for the applicant

Mr G. Robertson, QC, Counsel,

Mr M. Stephens,

Mr P. Chinnery, Solicitors.

The Court heard addresses by Mr Bratza, Mr Robertson and

Sir Derek Spencer.

AS TO THE FACTS

I. Circumstances of the case

7. The applicant, Mr Nigel Wingrove, is a film director. He was

born in 1957 and resides in London.

8. Mr Wingrove wrote the shooting script for, and directed the

making of, a video work entitled Visions of Ecstasy. Its running time

is approximately eighteen minutes, and it contains no dialogue, only

music and moving images. According to the applicant, the idea for the

film was derived from the life and writings of St Teresa of Avila, the

sixteenth-century Carmelite nun and founder of many convents, who

experienced powerful ecstatic visions of Jesus Christ.

9. The action of the film centres upon a youthful actress dressed

as a nun and intended to represent St Teresa. It begins with the nun,

dressed loosely in a black habit, stabbing her own hand with a large

nail and spreading her blood over her naked breasts and clothing. In

her writhing, she spills a chalice of communion wine and proceeds to

lick it up from the ground. She loses consciousness. This sequence

takes up approximately half of the running time of the video. The

second part shows St Teresa dressed in a white habit standing with her

arms held above her head by a white cord which is suspended from above

and tied around her wrists. The near-naked form of a second female,

said to represent St Teresa's psyche, slowly crawls her way along the

ground towards her. Upon reaching St Teresa's feet, the psyche begins

to caress her feet and legs, then her midriff, then her breasts, and

finally exchanges passionate kisses with her. Throughout this

sequence, St Teresa appears to be writhing in exquisite erotic

sensation. This sequence is intercut at frequent intervals with a

second sequence in which one sees the body of Christ, fastened to the

cross which is lying upon the ground. St Teresa first kisses the

stigmata of his feet before moving up his body and kissing or licking

the gaping wound in his right side. Then she sits astride him,

seemingly naked under her habit, all the while moving in a motion

reflecting intense erotic arousal, and kisses his lips. For a few

seconds, it appears that he responds to her kisses. This action is

intercut with the passionate kisses of the psyche already described.

Finally, St Teresa runs her hand down to the fixed hand of Christ and

entwines his fingers in hers. As she does so, the fingers of Christ

seem to curl upwards to hold with hers, whereupon the video ends.

10. Apart from the cast list which appears on the screen for a few

seconds, the viewer has no means of knowing from the film itself that

the person dressed as a nun in the video is intended to be St Teresa

or that the other woman who appears is intended to be her psyche. No

attempt is made in the video to explain its historical background.

11. Visions of Ecstasy was submitted to the British Board of

Film Classification ("the Board"), being the authority designated by

the Home Secretary under section 4 (1) of the Video Recordings Act 1984

("the 1984 Act" - see paragraph 24 below) as

"the authority responsible for making arrangements

(a) for determining, for the purposes of [the] Act whether or

not video works are suitable for classification

certificates to be issued in respect of them, having

special regard to the likelihood of video works in

respect of which such certificates have been issued being

viewed in the home,

(b) in the case of works which are determined in accordance

with the arrangements to be so suitable

(i) for making such other determinations as are

required for the issue of classification

certificates, and

(ii) for issuing such certificates ...

..."

12. The applicant submitted the video to the Board in order that

it might lawfully be sold, hired out or otherwise supplied to the

general public or a section thereof.

13. The Board rejected the application for a classification

certificate on 18 September 1989 in the following terms:

"Further to your application for a classification certificate

..., you are already aware that under the

Video Recordings Act 1984 the Board must determine first of all

whether or not a video work is suitable for such a certificate

to be issued to it, having special regard to the likelihood of

video works being viewed in the home. In making this judgment,

the Board must have regard to the Home Secretary's Letter of

Designation in which we are enjoined to `continue to seek to

avoid classifying works which are obscene within the meaning

of the Obscene Publications Acts 1959 and 1964 or which

infringe other provisions of the criminal law'.

Amongst these provisions is the criminal law of blasphemy, as

tested recently in the House of Lords in R. v. Lemon (1979),

commonly known as the Gay News case. The definition of

blasphemy cited therein is 'any contemptuous, reviling,

scurrilous or ludicrous matter relating to God, Jesus Christ

or the Bible ... It is not blasphemous to speak or publish

opinions hostile to the Christian religion' if the publication

is 'decent and temperate'. The question is not one of the

matter expressed, but of its manner, i.e. `the tone, style and

spirit', in which it is presented.

The video work submitted by you depicts the mingling of

religious ecstasy and sexual passion, a matter which may be of

legitimate concern to the artist. It becomes subject to the

law of blasphemy, however, if the manner of its presentation

is bound to give rise to outrage at the unacceptable treatment

of a sacred subject. Because the wounded body of the crucified

Christ is presented solely as the focus of, and at certain

moments a participant in, the erotic desire of St Teresa, with

no attempt to explore the meaning of the imagery beyond

engaging the viewer in an erotic experience, it is the Board's

view, and that of its legal advisers, that a reasonable jury

properly directed would find that the work infringes the

criminal law of blasphemy.

To summarise, it is not the case that the sexual imagery in

Visions of Ecstasy lies beyond the parameters of the `18'

category; it is simply that for a major proportion of the

work's duration that sexual imagery is focused on the figure

of the crucified Christ. If the male figure were not Christ,

the problem would not arise. Cuts of a fairly radical nature

in the overt expressions of sexuality between St Teresa and the

Christ figure might be practicable, but I understand that you

do not wish to attempt this course of action. In consequence,

we have concluded that it would not be suitable for a

classification certificate to be issued to this video work."

14. The applicant appealed against the Board's determination to the

Video Appeals Committee ("the VAC" - see paragraph 25 below),

established pursuant to section 4 (3) of the 1984 Act. His notice of

appeal, prepared by his legal representatives at the time, contained

the following grounds:

"(i) that the Board was wrong to conclude that the video

infringes the criminal law of blasphemy, and that a

reasonable jury properly directed would so find;

(ii) in particular, the Appellant will contend that upon a

proper understanding of the serious nature of the video

as an artistic and imaginative interpretation of the

`ecstasy' or `rapture' of the

sixteenth-century Carmelite nun, St Teresa of Avila, it

would not be taken by a reasonable person as

contemptuous, reviling, scurrilous or ludicrous or

otherwise disparaging in relation to God, Jesus Christ or

the Bible. The appeal will raise the question of mixed

fact and law, namely whether publication of the video,

even to a restricted degree, would contravene the

existing criminal law of blasphemy."

15. The Board submitted a formal reply to the VAC explaining its

decision in relation to its functions under section 4 of the 1984 Act:

"The Act does not expressly set out the principles to be

applied by the authority in determining whether or not a

video work is suitable for a classification certificate to be

issued in respect of it. In these circumstances, the Board has

exercised its discretion to formulate principles for

classifying video works in a manner which it believes to be

both reasonable and suited to carrying out the broad objectives

of the Act. Amongst these principles, the Board has concluded

that an overriding test of suitability for classification is

the determination that the video work in question does not

infringe the criminal law. In formulating and applying this

principle, the Board has consistently had regard to the

Home Secretary's Letter of Designation under the

Video Recordings Act ...

The Board has concluded on the advice of leading Counsel that

the video work in question infringes the criminal law of

blasphemy and that a reasonable jury properly directed on the

law would convict accordingly. The Board submits and is

advised that in Britain the offence of blasphemy is committed

if a video work treats a religious subject (in particular God,

Jesus Christ or the Bible) in such a manner as to be calculated

(that is, bound, not intended) to outrage those who have an

understanding of, sympathy towards and support for the

Christian story and ethic, because of the contemptuous,

reviling, insulting, scurrilous or ludicrous tone, style and

spirit in which the subject is presented.

The video work under appeal purports to depict the erotic

fantasies of a character described in the credits as

St Teresa of Avila. The 14-minute second section of the

video work portrays 'St Teresa' having an erotic fantasy

involving the crucified figure of Christ, and also a

Lesbian erotic fantasy involving the 'Psyche of St Teresa'.

No attempt is made to place what is shown in any historical,

religious or dramatic context: the figures of St Teresa and her

psyche are both clearly modern in appearance and the erotic

images are accompanied by a rock music backing. The work

contains no dialogue or evidence of an interest in exploring

the psychology or even the sexuality of the character

purporting to be St Teresa of Avila. Instead, this character

and her supposed fantasies about lesbianism and the body and

blood of Christ are presented as the occasion for a series of

erotic images of a kind familiar from 'soft-core' pornography.

In support of its contentions, the Board refers to an interview

given by the appellant and published in Midweek magazine on

14 September 1989. In this interview, the appellant attempts

to draw a distinction between pornography and 'erotica',

denying that the video work in question is pornographic but

stating that `all my own work is actually erotica'. Further

on, the interviewer comments:

`In many ways, though, Visions calls upon the standard

lexicon of lust found in down market porn: nuns,

lesbianism, women tied up (Gay Nuns in Bondage could have

been an alternative title in fact). Nigel Wingrove

flashes a wicked grin. `That's right, and I'm not

denying it. I don't know what it is about nuns, it's the

same sort of thing as white stocking tops I suppose.' So

why does he not consider Visions to be pornography, or at

least soft porn? `I hope it is gentler, subtler than

that. I suppose most people think pornography shows the

sex act, and this doesn't.'

It is clear from the appellant's own admissions that, whether

or not the video work can rightly be described as pornographic,

it is solely erotic in content, and it focuses this erotic

imagery for much of its duration on the body and blood of

Christ, who is even shown to respond to the sexual attentions

of the principal character. Moreover, the manner in which such

imagery is treated places the focus of the work less on the

erotic feelings of the character than on those of the audience,

which is the primary function of pornography whether or not it

shows the sex act explicitly. Because there is no attempt, in

the Board's view, to explore the meaning of the imagery beyond

engaging the viewer in a voyeuristic erotic experience, the

Board considers that the public distribution of such a

video work would outrage and insult the feelings of believing

Christians ...

...

The Board ... submits that the appeal should be dismissed and

its determination upheld."

16. The applicant then made further representations to the VAC,

stating, inter alia:

"The definition of the offence of blasphemy set out in ... the

reply is too wide, being significantly wider than the test

approved in the only modern authority -

see Lemon & Gay News Ltd v. Whitehouse [1979] Appeal Cases 617,

per Lord Scarman at 665. For example, there is no uniform law

of blasphemy in Britain; the last recorded prosecution for

blasphemy under the law of Scotland was in 1843 -

see Thos Paterson [1843] I Brown 629. Nor is any

religious subject protected - the reviling matter must be in

relation to God, Jesus Christ or the Bible, or the formularies

of the Church of England as by law established.

In the Appellant's contention, these limitations are of the

utmost significance in this case since the video is not

concerned with anything which God or Jesus Christ did, or