Today a challenge is launched in the High Court that puts the blasphemy laws on trial. Stephen Green, of an evangelical group called Christian Voice, is seeking the right to bring a private prosecution for the common law offence of blasphemous libel.

The case arises over the production and presentation of the award-winning musical Jerry Springer — The Opera at theatres around Britain from October 2003 to July 2006 and then its broadcast on BBC in January 2005. Mr Green wants to prosecute Jonathan Thoday for the production of the play and Mark Thompson, then Director-General of the BBC, for the broadcast.

He applied last year, two years after the broadcast, for a summons to bring the prosecution but was refused at the City of Westminster magistrates' court. Now he is going to the divisional court to challenge that refusal.

Blasphemous libel is the publication of any matter that insults, offends or vilifies the Deity, or Christ, or the Christian religion. It is irrelevant whether there was an intention to blaspheme - the intention to publish the material is sufficient.

But the district judge who heard the initial application held that it was arguable that the Theatres Act prohibits prosecution on the ground of blasphemy; and in any event, Mr Green had not shown a prima facie case. However, Mr Green then won leave from Mr Justice Underhill to seek a judicial review of the district judge’s ruling.

The case is a key test of whether the laws of blasphemy are compatible with free speech, as enshrined in Article 10 of the European Convention on Human Rights. Liberty, the human rights group, has intervened in the case and will argue that free speech protects the secular, sacred and profane alike — and that people should see free speech and conscience rights as running together.

But the case will also be a fresh test of whether blasphemy should exist as a criminal offence at all. Liberty will also argue that the offence should not be recognised in English law at all — because of its lack of sufficient legal certainty as held by the Irish Supreme Court in a case in 2000. The Council of Europe also recommended in June this year that blasphemy should be decriminalised, as has the Law Commission, in a working paper in 1981 and in its final report in 1985.

The chief reason cited for abolition is that blasphemy applies only to Christianity and the Council of Europe is concerned that members of a particular religion should be neither privileged nor disadvantaged by the criminal law.

But attempts to scrap it have foundered. David Blunkett, when Home Secretary, floated the abolition of blasphemy and blasphemous libel in 2004 as part of a package of measures to include the offence of incitement to religious hatred. The idea of the repeal was to answer critics, such as Rowan Atkinson, the comedian, who argued that the new incitement law would stifle criticism of religion, cartoonists' lampoons or jokes about vicars and priests.

Shami Chakrabarti, the director of Liberty, said: “No person of faith should doubt the importance of free speech to freedom of religion — we must remember that even Jesus was prosecuted for blasphemy. This law has quite rightly been a dead letter for many years and is ripe for repeal, not a mischievous private prosecution.”

The proposal was welcomed at the time by the National Secular Society, which said that it had been fighting the blasphemy law for more than 100 years. But at the same time, it expressed concern that the new incitement laws may be creating a new “all religions” blasphemy law.

The balance is a fine one — but incitement to religious hatred is clearly distinct from remarks that followers of a religion find insulting, disrespectful or undermining of their beliefs.

The law on blasphemy is now rarely used. In 1977 the campaigner Mary Whitehouse brought a private prosecution against Gay News for publishing a poem, The Love That Dares To Speak Its Name, about a centurion’s love for Christ. Some British Muslims unsuccessfully called for the author Salman Rushdie to be tried under the law after publication of The Satanic Verses. But the law could not be used as it relates only to Christianity — and, arguably, not to all denominations, such as Roman Catholicism.

There is a growing case that the laws of blasphemy are anachronistic, inconsistent and ripe for repeal. Religions, it is said, should be strong enough to defend themselves. What is even more unarguable is that they should not be a tool to stifle freedom of expression.

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