The constitutional offence of blasphemy should be replaced with a new general provision to include incitement to religious hatred, the constitutional convention has recommended.

Voting today on whether the reference to the offence of blasphemy should be kept as it is in the Constitution, 38 per cent said Yes, 61 per cent said No and 1 per cent were undecided or had no opinion.

In a follow-up question, 38 per cent of members believed the offence should be removed from the Constitution altogether, 53 per cent said it should be replaced with a new general provision to include incitement to religious hatred and 9 per cent had no opinion.

Asked whether there should be a legislative provision for the offence of blasphemy, 49 per cent of members said Yes, 50 per cent said No and 1 per cent were undecided or had no opinion.

The 100-member forum, which comprises 33 politicians and 66 members of the public, is holding its final session of the year this weekend. It will convene for two meetings next February to consider issues not included on its agenda by Government.

Yesterday, the convention heard that the crime of blasphemy was a “dead letter” that could not be prosecuted.

Dr Neville Cox of Trinity College Dublin said the relevant part of the 2009 Defamation Act, which sets a maximum fine of €25,000 for those found guilty of publishing or uttering blasphemous material, was too tightly drawn to be applied in practice.

He said the law’s requirement that a publisher must be proven to have intended to cause outrage among a substantial number of a religion’s adherents in effect meant “that will be very difficult successfully to prosecute the offence”.

The law also makes it a defence to the crime to prove that a reasonable person would find genuine literary, artistic, political, scientific or academic value in the publication of the material. “It makes it so hard to operate the law… that I think the 2009 act effectively kills off the crime,” Dr Cox said.

Dr Cox also pointed to a decision by the Supreme Court in Corway v Independent Newspapers, a 1999 case in which the court said it couldn’t define blasphemy and therefore couldn’t apply the constitutional prohibition.

“What this did was render the crime of blasphemy a dead letter,” he said. “They said this is beyond us and killed off the thing. To my mind that was a strange abdication of responsibility.”