The High Court has allowed a legal challenge to a magistrate's decision not to issue a private prosecution for blasphemy over Jerry Springer the Opera.
Mr Justice Underhill has granted a judicial review of the ruling of District Judge Caroline Tubbs not to issue a summons on the application of Stephen Green, National Director of Christian Voice.
Stephen Green laid information in January this year against both the Director General of the BBC, Mark Thompson, who allowed Jerry Springer the Opera to be screened on BBC2, and the show's producer, Jonathan Thoday, who staged it at the Cambridge Theatre in London's West End and then in a nation-wide tour last year. But sitting at Horseferry Road Magistrates' Court, the District Judge refused to allow the summons to be issued.
Lawyers for both Mark Thompson and Jonathan Thoday submitted papers to the High Court as interested parties. Those papers were read by Mr Justice Underhill together with the application for judicial review from Stephen Green and the ruling of District Judge Tubbs.
The judgment means the case will go straight to an oral hearing. It is the most positive of three possible outcomes. His Lordship found on his viewing of the papers that it could be argued that the magistrate was wrong on both reasons she gave for refusing to issue the summons. His ruling says:
'The District Judge appears to have refused to issue the summons on 2 alternative grounds 1 that a prosecution was precluded by s 2 4 of the Theatres Act and 2 that the facts alleged by the claimant did not disclose that the essential ingredients of the offence were prima facie present.
'As to 1 I consider that the District Judge was wrong to take the view that s 2 4 applied to the offence of blasphemy. With respect to the submissions of the first interested party the question is one of law not of judicial discretion.'
On 2, the ruling says: '... given the definitions of the scope of the law of blasphemy endorsed in Whitehouse, I do consider it arguable that the DJ's assessment that the facts alleged disclose in effect no case fit to go to the jury was wrong in law...'
Michael Phillips, representing Stephen Green, said:
'The High Court has three options when considering a case for judicial review. It can give full permission on the written evidence alone, it can order an oral hearing to seek permission, or it can refuse permission altogether. His Lordship has given permission for a full judicial review. Therefore the judicial review proceeds straight to the full hearing, there is no permission hearing. It also seems to be a relatively strong indication from the judge that there is a good case for us to make.'
However, Mr Justice Underhill was careful not to prejudge either the judicial review hearing or any ultimate prosecution. He went on: 'I should in the circumstances of this case emphasise that I am saying no more than that the challenge to the District Judge's decision was arguable. That does not necessarily mean that it will succeed; still less that any eventually prosecution would succeed.'
Stephen Green, National Director of Christian Voice, said today:
'Even with His Lordship's caveat, I praise God that this is the most positive outcome we could have had. I shall look forward to the hearing with some confidence.'
The High Court will give a date for the judicial review hearing in a couple of weeks.