THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

THE CRIME OF LIBEL

August 1991

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1991

First Published August 1991

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon Mr. Justice Ronan Keane, Judge of the High Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney; B.A., M.A., (Univ. of Chicago), Senior Psychologist, Eastern Health Board; Research Associate, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General thirty-six Reports containing proposals for the reform of the law. It has also published eleven Working Papers, four Consultation Papers and Annual Reports. Details will be found on pp.191–194

William Binchy, Esq., B.A., B.C.L., LL.M., Barrister-at-Law, is Research Counsellor to the Commission.

Ms. Una O'Raifeartaigh, B.C.L., Barrister-at-Law, Ms. Elizabeth Heffernan, LL.B., LL.M., Mr. Anthony Whelan, LL.B., LL.M. and Mr. Brian Hutchinson, B.C.L., LL.M., Barrister-at-Law are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 715699

INTRODUCTION

In January 1989 the Attorney General pursuant to section 4(2)(c) of the Law Reform Commission Act 1975 requested the Commission to undertake an examination of, and conduct research and formulate and submit to him proposals for reform of, the law of Defamation and Contempt of Court.

The subject matter of this request can be divided into three parts: Civil Defamation, Criminal Defamation and Contempt of Court. The Commission decided to undertake in the first place an examination of Civil Defamation, the most extensive of these categories. Last March, the Commission published a Consultation Paper on the Civil Law of Defamation and, in July, a Consultation Paper on Contempt of Court containing the results of their examinations together with provisional proposals for reforms in the law and it is hoped to present final proposals to the Attorney General on both subjects in the near future.

This Paper contains the results of our examination of the second subject comprised in the Attorney General's request, i.e. Criminal Defamation or, to give it its more precise legal description, the Crime of Libel. (Unlike the civil wrong of defamation, which can be committed in either written or permanent form (libel) or spoken form (slander), criminal defamation can only take a written form).

The crime of libel is a common law misdemeanour. It may come as a surprise to those who associate the term “libel” with a form of defamation to know that the crime in fact encompasses four sub-crimes. These are the offences of seditious libel, blasphemous libel, obscene libel as well as defamatory libel. Given the wide range of material within it, it may be seen that the crime

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=1

represents the bulk of common law criminal rules regarding speech.

The crime is an interesting one because it is at once of high and trivial importance. It is of high importance because Ireland has a Constitutional guarantee of free speech, and the common law rules represent stringent restrictions upon the individual's right of expression. They affect what may be said about the organs and officials of State, the administration of justice, about religion and religious institutions, about individuals whether public or private, and they circumscribe what may be read or viewed on grounds of taste and morality. In this sense therefore the crime merits serious consideration and the rules which pre-date the 1937 Constitution must be viewed with circumspection. On the other hand, the crime is a trivial one because in modern society it has assumed a very minor role. The offence in any form is rarely prosecuted in this jurisdiction and were it not for the provisions of the Defamation Act 1961, which clearly envisage the continued existence of each form of the crime, one might be tempted to conclude that the crime was well nigh obsolete.

A number of Constitutional principles will be seen to be important factors in the discussion of the crime. A continually emerging theme is the right of free speech guaranteed under Article 40.6.1.i of the Constitution. Another is the constitutional qualification in the same article prohibiting the publication of “blasphemous, seditious or indecent” matter. Of importance in the context of defamatory libel is the right to a good name guaranteed under Article 40.2. Considerations of religious equality assume a role in the crime of blasphemous libel by virtue of Article 44. Another principle to which we will advert will be the principle of equality before the law under Article 40.1. Finally we shall also have recourse to the definition of the offence of treason as proscribed by Article 39.

The offence is therefore a multi-faceted one which attracts a number of delicate considerations. Nonetheless the fact remains that it is little prosecuted. Accordingly we have attempted to maintain a common sense approach bearing this fact constantly in mind. The lack of prosecution has another effect, which is of course the absence of authority. We shall be quoting much English law to establish the common law principles. This course is open to the usual qualifications.

We permit ourselves a short note on terminology. We have observed that the crime encompasses much more than the crime of defamatory libel. We shall see that even to view the crime and tort of defamation as the intersection of the criminal and tortious systems in this context is inaccurate for the crime and the tort differ in a number of respects. We note at the outset that we consistently refer to the overall crime as the “crime of libel”

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=2

or “criminal libel” and the sub-crimes by their individual names, seditious libel, blasphemous libel, obscene libel and defamatory libel. Others have used the term “criminal libel” to depict defamatory libel, but we have avoided this practice as we feel it is misleading.

We commence our examination of this crime with a summary of its historical development. We emphasize that this is not purely an academic exercise. The rules governing the different sub-crimes are frequently complex and sometimes difficult to justify. The picture becomes at once clear when one sees the origin of a particular rule, whether due to judicial reaction or political pressure, and this in turn points the way to reform. More importantly, the context in which a crime develops may of itself provide reasons for consideration of its abolition.

We then go on to consider the present law governing each of the branches of the crime of libel. There follow four corresponding chapters in which we draw some comparisons with other jurisdictions, consider the consitutional implications, examine the defects of the present law and present our tentative recommendations for reform.

We emphasise that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General.

We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than Wed. 25 September, 1991.

CHAPTER 1: HISTORICAL DEVELOPMENT OF THE CRIME OF LIBEL

Earliest Period

1.

The earliest form of libel known to English law was an offence of a criminal nature known as scandalum magnatum (slander of magnates). This offence was created by a statute in 1275 in the reign of Edward 1, and provided as follows–

The mischief the statute was sought to prevent was therefore causing a loss of faith in the government or the monarch. Thus the earliest form of libel was a seditious libel, and since it was punishable by imprisonment, it can be classified as a criminal offence.

However, if a person was the victim of some other form of defamation, he was obliged to go to the Ecclesiastical Courts, for, under medieval law, no remedy was offered in respect of the other forms of defamation.²

Development of Civil Action

2.

Towards the beginning of the 16th century, the common law courts

began to develop a civil action for slander. This jurisdiction was gradually taken over from the Ecclesiastical Courts, whose jurisdiction began to wane after its peak towards the end of the 15th century. Slander, it must be said, had not yet taken on its present-day meaning of spoken words or other transient forms of communication. At this time the action was applicable to both written and spoken defamation. The modern distinction between libel and slander was not introduced until after the Restoration.³

In the common law courts, because the action was the action on the case, the gist of the action was damage to the victim of the slander. Damage was limited to its narrow proprietary sense.⁴ At this time, a number of other rules were developed, such as the requirement of publication to a third party, the rule that truth is a complete defence to the action and the rule that the action does not survive the death of the victim.

However, the action proved so popular that the Courts deemed it necessary to restrict the number of actions, and they did so by means of a number of principles. One of these was the rule of minor sensus, under which words alleged to be defamatory per se would be held non-defamatory if it were at all possible to find an innocent meaning. This rule would have been unobjectionable if it had been restricted to genuinely doubtful cases, but its actual use shows the twisting of words and strict interpretation more in the nature of construction of documents and pleadings, often with absurd results. Holdsworth cites a case in which it was held actionable to say that a man had robbed a church and stolen lead from it, but that no action would have lain if the words said that the man had robbed a church for he had stolen the lead from it – because there could in law be no larceny of the lead which was fixed to the freehold.⁵ Another example is the case of Holt v Astgrigg⁶, where the words were–“Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved his head; the one part lay on the one shoulder and the other on the other”. One would have thought that this was a clear accusation of killing, yet it was moved in arrest of judgement that the words were not actionable, because it was not averred that the cook was killed, but argumentative!

A second restriction on the action was the rule requiring special damage to be shown unless the statement fell into one of the following categories; statements imputing a crime, statements imputing incompetence in a trade or

profession, or statements imputing certain diseases.⁷ This emphasis on temporal damage is thought to stem from the fact that defamation unaccompanied by temporal damage was actionable in the Ecclesiastical Courts only.

A further set of rules to restrict actions in the common law courts were the rules on repetition. It was laid down by Coke in The Earl of Northampton's Case⁸ that if A published that he heard B say that C was a traitor, he would not be liable if he proved he actually heard B say this. A would be liable only if he did not identify the original author. It was not until the 19th century that the view emerged that repetition of a libel would render the speaker liable, even if he identified the original source of the statement. A feature of the common law on defamation thus developed prior to the merging of jurisdictions was the complexity and volume of cases used as precedents, which was extremely inhibiting to development. This volume led to the grouping of cases under headings drawing extremely fine distinctions, leading Holdsworth to say–

3.

The action, surrounded by this morass of rules and cases, was unsatisfactory. It was partly for this reason that the courts were subsequently to develop different rules for written defamation. The old body of rules continued to apply to spoken defamation, which was eventually affected to some degree by the developments in relation to the tort of libel. However, the distinction between the two forms of communication and the two distinct sets of rules continues to be a feature in the modern law of defamation.

Contribution of the Court of Star Chamber

4.

Meanwhile other developments had taken place in the criminal sphere

in response to the increased importance of the written word. In 1476, Caxton set up the first printing press at Westminster and in 1488, the Star Chamber was set up in order to monitor and suppress criticism of Church and State, which were at that which were at that time closely interwoven. The primary libels with which it was concerned were therefore libels of a seditious or blasphemous nature. However, the Star Chamber also wished to suppress duelling, which was the fashionable means of vindicating attacks upon honour or reputation, and to this end it also punished defamatory libels i.e. libels which impugned the integrity a private individual. In 1606, the Star Chamber held in the celebrated case of De Libellis Famosis¹⁰ that it was an offence to defame the deceased Archbishop of Canterbury.

The nature of the tasks of the Star Chamber and common law courts were therefore altogether different; while the Star Chamber was attempting to discourage matter which either threatened state security or might cause a breach of the peace, the common law courts were concerned with rectification of damage done to the reputation of an individual. Small wonder, therefore, that the tort and crime of libel have but a single point of intersection, namely defamatory libel, and this by reason only of the fact that this form of libel would injure reputation as well as tending to cause a breach of the peace. It may also be noted that the classification of the crime of libel into four sub-categories did not crystallise until the 19th century; until then, the distinction was rather between libels of a political and libels of a personal nature.

The rules in the Star Chamber developed differently from those in the common law courts. For example, it was sufficient if the libel were published to the victim only; neither did it matter whether the victim was alive or dead. Of extreme importance is the rule that truth was not a defence; indeed the contrary principle was expressed in the well-known phrase–“The greater the truth, the greater the libel.” The often-cited example given to explain this is provided by Hudson–“for, as the woman said, she would never grieve to have been told of her red nose if she had not one indeed.”¹¹ A true libel was therefore a “greater” one because of its greater potential to provoke a breach of the peace. This merely reinforces the obvious fact that the developing criminal offence of libel had little to do with reputation and much more to do with maintenance of the public peace.

Interaction of the Two Jurisdictions

5.

The Court of Star Chamber was abolished in 1641. After the Restoration, its criminal jurisdiction in respect of libel was inherited by the

Court of King's Bench. The result was that the pre-existing civil law of defamation and the inherited criminal jurisdiction in libel were administered by one and the same court. It was inevitable that the two sets of rules would interact.

Indeed, defamation was one of a number of wrongs or offences in this position, namely in respect of which the Star Chamber and the common law courts had respectively developed a set of rules, both of which influenced the subsequent common law. The criminal aspect of defamation was largely influenced by the Star Chamber rules, and the civil aspect by the common law rules. The interaction of the two sets was marked not only by the retention of the separate crime and tort, but also by the growth of the distinction between libel and slander.

6.

The crucial point for the development of the libel/slander distinction came when it arose for decision whether written defamation should be actionable without proof of special damage. The existing form of civil defamation required such proof, while the crime did not. The answer, as history has shown, was that the tort of written defamation (libel) was held actionable per se. Holdsworth attributes this step in part to the fact that the existing civil law and the action on the case had resulted in a highly unsatisfactory body of law from which the Court wished to free itself, and in part to the pressing need to suppress duelling effectively. In order to achieve the latter aim, it was necessary to make the action more accessible, and the removal of the need to show damage was the first step in this direction.

The conclusion that libel was actionable per se was not reached at once. Its development may be traced through King v Lake¹², Austin v Culpepper¹³Harman v Delaney,¹⁴Villars v Monsley¹⁵ and was finally settled in Thorley v Lord Kerry.¹⁶ The result was a success. First, it released the tort of libel from the network of rules and distinctions which had choked its rational growth. Second, the feature of actionability per se threw a new emphasis on the insult aspect of the tort. It therefore achieved a clean break with the pre-existing civil law, albeit at the expense of creating an arbitrary distinction between the two forms of communication, and one which would later be exacerbated by the development of more sophisticated forms of communication.

The rule of mitior sensus was also held inapplicable to the tort of libel, while

the rule that truth was a complete defence was retained for all forms of tortious defamation. By contrast, the rule that truth was no defence to a criminal prosecution persisted until its rigour was mitigated by Lord Campbell's Act in 1843, where it was introduced as a defence with the additional requirement of showing that the matter was for the “public benefit“. The cross fertilisation of the two sets of rules was not complete, however; for example, spoken words defamatory of a private person were held not to be a crime¹⁷ whereas seditious or blasphemous words or words likely to cause a breach of the peace were indictable.

Continuing Development of the Crime of Libel

7.

We have noted the absorption of the crime of libel from the Star Chamber to the common law courts and some of the effects of the interaction of the criminal and civil rules. We must now return to the development of the various types of criminal libel. Inherited from the Star Chamber were the seditious, defamatory, and blasphemous forms of libel. In 1727, the category of obscene libel was recognized for the first time. At the beginning of the century, Holt CJ had been of the view that obscene matter was an issue for the ecclesiastical courts¹⁸ Obscene libel was first recognized as a common law offence in the decision in Curl's Case¹⁹. However, the offence of obscene libel does not appear to have been prosecuted with any enthusiasm until the 19th century, when prosecutions became more frequent due, indirectly, to the changed climate in society, and resulting directly from the efforts of the Society for the Prevention of Vice, founded in 1802. The year 1857 saw the first major piece of legislation on obscenity, and obscene libel appears to have been proceeded against under its provisions rather than through the medium of obscene libel. The hey-day of the offence of obscene libel may therefore be said to be the first half of the 19th century.

The pertinent categories of libel until the 19th century were the “political” and the “personal”. Coke drew a distinction between the two forms in De Libellis Famosis²⁰, considering a libel against a public person to be much more serious than that of a private person, because “it concerns not only the breach of the peace but the scandal of Government.” Spencer states:

It is under this classification that we proceed with our discussion.

Political Libels

(i) Seditious libels

8.

Holdsworth observes that the heads of political libel included the publication or utterance of words which were seditious, obscene or blasphemous, or the utterance of words that would lead to a breach of the peace.²² Of these, seditious libels appear to have been the most important. The offence of sedition or seditious libel is clearly interwoven with prevailing theories of ruler and ruled, and such theories, it has been said,²³ fall into two broad categories. The first says that the ruler is superior to his subjects and inherently wise and just. It would therefore be unthinkable to criticise his actions or person. The second view is that the ruler represents the will of the people and is the instrument through which they express their wishes on means of government. Criticism and guidance from the people would therefore not only be permissible but is necessary to maintain a healthy relationship between the two parties. It is clear that English history has moved from the extremes of the first theory gradually into the second. However, during the 17th and early 18th centuries, the former view would have been the dominant one, and accordingly government critics would have been prosecuted with zeal.

In keeping with these sentiments, the common law courts willingly accepted the rules imposed by the Star Chamber, that truth was no defence, that publication to a third party was not necessary, that the death of the victim was not a bar to prosecution, and that the author and publisher were guilty in equal degrees. Furthermore seditious words uttered orally were indictable.²⁴ Any person who questioned the legality or policy of government committed the offence of sedition. Indeed the judges used the Licensing Acts, until their expiration in 1694, to implement the policy that the publication of any matter without government authority was illegal.

During the troubled times between the Jacobite Rising of 1745 and the passage of the Reform Act 1832, there was a large number of prosecutions

for criminal libel.²⁵

In political prosecutions, the Government, as Spencer aptly states, “contrived to stack the cards against the accused”.²⁶

Many of these cases were not brought on indictment, but instead on the Attorney General's ex officio information, for which no leave of the court was required. This rendered the defendant's case much more onerous because there was no possibility of hearing the prosecution's case before it was opened in court, and because there was no hope of having the case dismissed at an early stage on a finding by a judge that there was no prima facie case, or by a grand jury that there was no “true libel”. Additionally, it was usual to summon a special jury to hear the case which, being composed of wealthy persons, was more likely to be out of sympathy with critics of the Government.

The eagerness of the political establishment to suppress dissent manifested itself in the interacting roles of judge and jury, which in turn influenced the mental elements of the crime. When the crime was under the jurisdiction of the Star Chamber, it was the practice to attribute to the defendant the worst of intentions, alleging that he acted “maliciously”, “seditiously”, and “falsely”. Whether this was rhetoric or whether it indicated a requirement of intention was of little importance when the Court was arbiter of both fact and law, as was the Star Chamber. However when the spheres of fact and law were placed in the separate hands of judge and jury in the Common Law Courts, the issue of intention became more relevant. For if it were a requirement that the matter bearing a seditious meaning was published with intent, this would be a question of fact for the jury. By contrast, if the crime were constituted merely by publishing seditious matter, the only question of fact for the jury would be whether there was publication, the judge deciding whether the meaning of the words was in law a seditious libel. Clearly there is quite a difference between a jury deciding whether there has been publication and its deciding whether there has been publication with seditious intent. In the latter case, the jury would have much more influence in the outcome of the case. It seems that the dominant view was to limit the jury's function to merely answering the question of whether there was publication.

Thus we find Holdsworth stating –

The role of the jury was altered by the 1792 Libel Act in England, known as Fox's Libel Act, and the 1793 Libel Act in Ireland. Entitled “An Act to remove doubts respecting the functions of juries in cases of libel”, it provided that at a trial on indictment for libel, the jury could give a general verdict upon the whole matter put in issue, and should not be required to find the defendant guilty merely on proof of publication.

If the fresh input of juries altered the nature of libel trials, it did not initially stem the flood of political libel prosecutions. Indeed the category seems to have been expanded to cover not only criticism of the home government but also criticisms of foreign rulers with whom the British Government was seeking favour.²⁸

10.

After the Great Reform Act of 1832, a more liberal political climate prevailed and prosecutions for political libel lost prominence. This fact was reflected in the Report of the Select Committee of the House of Lords on Defamation (1843) which confined its attention to the law affecting private cases. Its recommendations had little to do with seditious and blasphemous libels or defamatory libels of public officials, and its views were reflected in the 1843 Libel Act²⁹.

Since that date, prosecutions for political libels have fallen into disuse, and

the machinery of ex officio criminal informations and special juries has been dismantled. The law of political libel has fallen from its position of prominence into gradual disuse, although it has never been expressly overruled or discredited.

(ii) Blasphemous Libels

11.

We may now take up the thread of the history of blasphemous libels from the time this jurisdiction was taken over by the common law courts from the Court of Star Chamber and the Ecclesiastical courts. The first indictment for blasphemy appears to have been Taylor's case,³⁰ in which Sir Matthew Hale is reported as saying;

The doctrine laid down in Taylor's case was affirmed in the decision in R v Woolston,³² which concerned writings attacking the miracles of Christ, for the purpose, according to the author, of showing that they were allegorical representations of religious truths. The defendant was fined, and sent to prison for a year, to be released upon his finding sureties for good behaviour throughout life, which he never found. Raymond LCJ stated:

and that

although the court said it

In both of the cases mentioned, the language used could be considered scurrilous and offensive, and this fact can of course be used to say, as it was in Bowman, that the older cases punished offensive speech and not questioning of doctrine per se. However, the judges in the cases did not lay emphasis on the strength of the language employed but rather based their prohibition on the fact of attacking Christianity; as Kenny puts it “a prohibition not merely of the manner but of the matter”.³³

England

12.

There were numerous prosecutions for blasphemous libel in England at the end of the eighteenth and beginning of the nineteenth centuries, including the celebrated prosecution of Williams, publisher of Paine's Age of Reason, where the prosecution for the Crown was conducted by Thomas Erskine, the leading advocate of the day. It seems that in this period Woolston's case was relied on to prohibit all denials of Christianity.³⁴ In response, Lord Macauley stated in Parliament that it was “monstrous” to see prosecutions for blasphemy under the present law and that every person should be entitled to discuss the “evidences of religion”. He added, however, that no person should be in a position to enforce such sounds and sights on unwilling ears. When he became a legislator in India, Lord Macauley included in his Code a provision making it an offence to utter words within the hearing of another or make any gesture in the sight of another, with the deliberate intention of wounding the religious feelings of that other.

In 1841 we find the Commissioners on Criminal Law stating in their report that the law “distinctly forbids all denial of the Christian religion”, but qualifying it with the statement that “the course has been to withhold the application of the penal law unless insulting language is used”.³⁵ An exception to this proviso appears to have been the case of Briggs v Hartley³⁶, where a

bequest of money for the best essay on natural theology as a philosophical system of universal religion was held invalid on the ground that it was inconsistent with Christianity.

Nonetheless the nineteenth century evidenced a shift in attitude so that blasphemy was constituted only where there was scurrilous language, and the perception arose that indications in previous cases that all denials of Christianity were automatically blasphemous were merely obiter dicta. As early as 1812, Starkie was urging that temperate discussion of Christianity should be tolerated and that the law should be reserved for “the malice of mankind”, not its “honest errors”. We will see portions of Starkie's writings quoted in judgments in a later chapter.

13.

The continuing trend of tolerance of temperate discussion in religious matters is evidenced by the ruling of Lord Denman in R v. Hetherington,³⁷ although the accused was in fact convicted and sentenced to four months' imprisonment. The trial of Pooley³⁸ in 1857 saw Coleridge J. adopting the milder views of Starkie.

The next major turning point was the trial of Ramsay and Foote, the publishers of a weekly paper containing offensive caricatures of religion. Lord Coleridge LCJ expressly held that the fundamentals of religion could be attacked “if the decencies of controversy are observed”.³⁹ This view was followed in all subsequent prosecutions and was authoritatively approved in Bowman v Secular Society Ltd by the House of Lords in 1917.⁴⁰

The prosecution in R v Gott in 1922 was the last prosecution for blasphemous libel in England prior to Whitehouse v Lemon⁴¹, which we will discuss in our Present Law chapter.

Ireland⁴²

14.

It appears that the earliest reported case of a prosecution in the Irish common law courts was the trial in 1703 of Thomas Emlyn, some 30 years after Taylor's case was decided in England.⁴³ Emlyn was a Unitarian Minister who had written a book entitled A Humble Enquiry into the Scripture Account of Jesus Christ and was sentenced to one year's imprisonment with a fine of

£1,000, and ordered to find security for good behaviour for life.

Speaking of this case, over a century later, Sir Edward Sugden said:

15.

The next stepping stone in Irish law for the offence of blasphemy appears to have been in 1852, the case of Brother John.⁴⁵ John Syngean Bridgman, a Franciscan friar, was charged with “unlawfully, wickedly, and blasphemously” setting fire to a Protestant Bible and publishing “of and concerning said New Testament, as aforesaid, these profane and blasphemous words, that is to say, that it (meaning the New Testament) is not the word of God, but the word of the Devil, and the Devil's Book-Luther's Bible, or your heretic Bible – to the great dishonour of Almighty God, and in contempt of the Protestant religion...”. He was found guilty. However the importance of the case lies in the charge to the jury by Baron Lefroy:

In 1885 a Redemptorist Father by the name of Reverend Petcherine burned a Bible by mistake among a bundle of other books.⁴⁶ He was found not guilty on a charge on indictment of blasphemously burning the Bible. Baron Green approved the above statements by Baron Lefroy to the effect that intention to burn the Bible was necessary.

16.

From this sparse authority it would seem that by the time the Bowman case came before the House of Lords in England, the offence of blasphemous libel could be committed by any attack or denial of Christian doctrine, and that no emphasis was laid on the manner in which the attack was made

While it has been suggested that Bowman v Secular Society Limited was not part of Irish law prior to the enactment of the Constitution of the Irish Free State, not being a decision on an appeal from Ireland, the better view would appear to be that all decisions of the House of Lords formed part of the law of Ireland carried over by that Constitution and subsequently by the Constitution of Ireland, unless, of course, the principle laid down was inconsistent with the Constitution. Apart from that consideration, if a case had arisen between Bowman in 1917 and 1937, it seems likely that an Irish court would have found the views in Bowman persuasive. It is undeniably the case that, in determining the parameters of the offence of blasphemy mandated by the Constitution – a difficult task in the absence of authority – the characteristics of the common law offence of blasphemy, as it was generally understood at that time, are of considerable relevance. We will examine this issue when we come to state the present law of blasphemous libel.

Private Libels

17.

In modern times the victim of a private libel will usually resort to a civil action in order to obtain damages which at law represent vindication of the plaintiffs reputation. It is highly unusual for a private individual to initiate criminal proceedings in respect of defamatory libel in Ireland, and in England there have been only a handful of cases in recent years. At one time, prosecutions in respect of private libels were common and were indeed preferred to the civil action.⁴⁷ In the following discussion, we shall see why this was so and why the position has changed.

When the King's Bench inherited the jurisdiction of criminal libel from the Star Chamber, it recognized libel prosecutions at the suit of private citizens in order to provide an alternative remedy to the practice of duelling. The

primary influence of the common law on this type of criminal libel was the holding, in 1697 in Penny's Case⁴⁸ that spoken words defamatory of a private person did not constitute a crime, which was limited to written defamatory statements. This leads to one notable difference between the tort and the crime of defamation, namely that oral defamation is a tort (slander) while oral defamation is not a crime. In 1884, Labouchere's case⁴⁹ severely limited the availability of criminal informations in libel cases, holding that the court should in general exercise its discretion against the granting of an information at the suit of a private individual. Following this decision, the normal procedure was by way of indictment.

18.

Given that the crime consists of written defamation only, it is not surprising that the press has played a large role in shaping the law of criminal defamation. In the seventeenth century, private prosecutions against newspapers appear to have been rare. Newspapers were few, their circulation limited, and their expression strictly curtailed by censorship. It was the eighteenth century that saw a boom in private prosecutions Spencer attributes this to a number of factors.⁵⁰ Defamatory attacks at the time tended to be extremely scurrilous tending to make the angered victim more likely to prosecute than to sue. Also, the aristocracy tended to be the victims of defamatory attacks, and many of these were opposed to newspapers and advocated their suppression on principle. There is also the fact that, as a wealthy class, the aristocracy would not have been attracted by the lure of money. Thirdly, a criminal court could make a libeller find securities for future good behaviour, whereas the common law court could not order an injunction. Perhaps one of the main attractions, however, was the rule that truth was not a defence in a criminal prosecution for libel. If a person had something to hide, he was well-advised to bring a criminal prosecution rather than a civil action. Indeed, in 1848, we find a Parliamentary exchange stating that a prosecution by indictment for libel is practically admission of the truth of the libel.⁵¹

Spencer estimates that by the 1830's, although criminal prosecutions were still popular, they were becoming less frequent and civil actions more popular.⁵² The attitude of journalists and editors was also changing, and instead of accepting criminal liability as part of the risk of the trade, they were voicing objections to details of the law. Their complaints included the following:

Spencer paints a vivid picture of the injustices it created:

Because of these complaints , a number of Bills were introduced to alleviate the position of the press, including Bills by Henry Brougham and Daniel O'Connell. No success was met until Lord Campbell managed to set up the Select Committee of the House of Lords. Following the Report of this body on the law of defamation, Lord Campbell with the help of Starkie drafted a bill which became the Libel Act 1843. This addressed a number of the complaints voiced. Section 8 gave the successful defendant costs, section 7 mitigated the vicarious liability rule, and section 6 introduced truth as a defence, albeit with an additional requirement that the matter be shown to be published for the public benefit. The provisions will be considered in detail below, but the Act may be noted for the present as remedying a number of the primary defects in the law of criminal libel, and marking a major turning point in the history of private prosecutions.

19.

After 1843 the press continued to complain about matters of detail in the law of criminal libel, such as the position in relation to reports of public meetings, the obscurity of the vicarious liability provision in the 1843 Act, and the fact that a prosecutor could leave a prosecution hanging in mid-air. However, perhaps a more fundamental change could now be seen in the attitude of the journalists and editors themselves as to their role and its corollaries, which included a questioning of the very principle of criminal liability;

In 1865, a group of Irish lawyers in Parliament unsuccessfully attempted to introduce a Bill to restrict private libel prosecutions by requiring the consent of the Attorney-General, and to confer a privilege in respect of reports of public meetings. It was re-introduced in succeeding vears but opposition to it was strong. In 1878, a Select Committee was appointed with the Attorney-General as Chairman. Its recommendations were implemented in a bill,

which was later to become the 1881 Newspaper and Libel Registration Act. The Act represented a compromise between advocates of the press and their opponents. It enacted two significant provisions, the first conferring limited privilege on reports by newspapers of public meetings, the second requiring the consent of the Director of Public Prosecutions, in England, and the Attorney General, in Ireland, for prosecution of a newspaper. Opponents of the press succeeded in having commenced a scheme of registration so that the proprietorship of newspaper would be ascertainable.

20.

Unexpectedly, the 1881 Act saw an increase, rather than a decrease, of prosecutions for criminal libel. It may be that this had little to do with the law, and more to do with trends in journalism. A number of new newspapers were set up, among them the magazine Truth founded by Henry Labouchere, which were devoted to uncovering the scandals of late Victorian England. They produced the type of material likely to encourage prosecution. The presence of Henry Hawkins as judge at the Old Bailey contributed to a judicial atmosphere hostile to newspapers, while the accession of Sir Augustus Stevenson to the office of the DPP in 1884 facilitated the obtaining of permission to commence prosecution.

It was at this point that Lord Coleridge stepped in, holding in one of the leading cases (R v. Labouchere⁵⁶) that the judicial discretion to grant a criminal information in private prosecutions should be severely curtailed. As an opponent of the practice of bringing criminal prosecutions for libel, he continued to make such prosecutions difficult, and in Wood v Cox,⁵⁷ he deprived the plaintiff of his costs and expressed his disgust at the giving of his fiat by the DPP. At the time, the House of Lords was debating a bill on civil libel. Lord Coleridge introduced an amendment, which ultimately became the provision that no prosecution could be commenced against a newspaper without the leave of a judge in chambers, although it appears the original proposed amendment would have given this discretion additionally to the Attorney-General.

Spencer records that the 1890's saw a number of financier cases, involving allegations of fraud, but that after these criminal libel prosecutions against newspapers appear to have died out. However, they continued against individuals in relatively large numbers until 1939. Since the Second World War, the offence of criminal libel has taken a back seat to civil proceedings. One of the major factors in causing the decline in press libel prosecutions was the requirement of the judge's consent. Also, damage awards in civil cases began to increase from about 1880 onwards, thereby providing a bait to take the civil route.

21.

We have now examined the development of the two forms of political libel, and private libels. It is time to turn our attention to the later developed crime of obscene libel.

Obscene Libels

22.

When the control of literature was given to the Court of Star Chamber, the censorship exercised was aimed at religious and political comments Matters of sexual explicitness or indecency do not appear to have been considered a problem of importance. Throughout the Elizabethan era, censorship was increased by the granting of a charter to the Stationers' Company, which rooted out undesirable books; by the licensing of books by designated censors, such as the Archbishop of Canterbury; and by the institution of the office of Master of Revels and the requirement that plays be sent for advance scrutiny. Censorship continued to be aimed at the political and the religious. The abolition of the Star Chamber was soon followed by the re-introduction of licensing in 1643, and the passing of the Licensing Act 1662. This Act was again confined to religious and political factors.

23.

The first case in which indecency divorced from a political or religious context appears to have been central is that of R v Sedley⁵⁸ in 1663. Sir Charles Sedley and some aristocratic companions are said to have outraged the crowd by appearing drunk and naked on the balcony of a London tavern and performing gestures of an obscene and offensive character. Sedley was fined and gaoled for a week for a breach of the peace. An isolated incident, it is nonetheless noteworthy for its identification of the factor of obscenity as one meriting punishment by the criminal law, although its immediate trappings were of course the habitual “breach of the peace” tendency. The court described itself as “custos morus” (guardian of morals), clearly representing a move from the time when it would refuse to deal with “spiritual” matters because these were the jurisdiction of the Ecclesiastical courts. Nonetheless, as we shall see, it was a supposed lack of jurisdiction over spiritual matters which made the court dismiss the prosecution in a case some 45 years later.

24.

The later part of the seventeenth century saw a shift in attitude towards obscenity, and witnessed the formation of a number of societies for the censorship of immorality. Official censorship was extended to include immorality. It was not until 1708, however, that an opportunity arose for the courts to deal with an obscene text, James Read's Fifteen Plagues of a Maidenhead. The Court of Queen's Bench dismissed the indictment stating:

Powell J expressed the view that the absence of a person who had been libelled made it impossible to call this a libel:

If the concept of libel is reference to an individual, it is of course stretching the meaning of the word “libel” to call obscene publications “obscene libels”. In contrast, seditious words could be called libel because, even if a particular person is not attacked, there is at least an identifiable collective entity. (the Government, the judiciary) However, blasphemous libel also stretches the concept of libel because it is difficult to say that an individual in the ordinary sense is attacked. The rationale of that offence was the supposed impact of such words on society, rather than the hurt or harm caused to any person spoken of.

25.

It seems that Read's case did not preclude occasional prosecutions in the lower courts in respect of obscene matter, but it did stall such prosecutions until the decision in Curll's case in 1727.⁶⁰ This case marks the beginning of the history of obscene libel in the criminal law. The book was entitled Venus in her Cloister, or the Nun in her Smock, and concerned lesbian relationships in a convent. It is unlikely that the religious content encouraged the outcome; indeed, it might have hindered it. One of the judges, Sir John Fortescue, would have accepted the book because it exposed “the Romish priests, the father confessors and Popish religion”. The Court rejected the decision in Read's case, in part relying on Sedley.

The conceptual difficulties encountered in Read's case in relation to obscene matter and the term “libel” posed no difficulties to the court in Curlls case. This leaves those unacquainted with the history of criminal libel with the puzzle that the offence of libel encompasses not only attacks on persons, members of Government or the Government itself, but also matter that attacks religion and matters that are considered obscene or indecent. The

result is that in the criminal law we can only view the word “libel” as devoid of any meaning other than the neutral one “written speech”, and that the categories of criminal libel represent the common law basket of criminal offences consisting of speech, as distinct from speech incidental or related to action.

26.

Despite Curll's case, the offence of obscene libel appears to have been little prosecuted throughout the eighteenth century. For example, John Cleland's Fanny Hill was not prosecuted when it first appeared in England in 1748.

The beginning of the nineteenth century saw an upsurge in the number of prosecutions. The Society for the Suppression of Vice had been founded in 1802, and was both active and successful in bringing prosecutions for obscene libel. Of the 159 prosecutions it brought, 154 resulted in convictions. Throughout this period it appears that there was no working definition of obscenity. Obscenity was recognized on an instinctive basis.

27.

In 1846, the first customs prohibition on the importation of obscene or indecent matter was enacted, and in 1857 the Lord Chief Justice, Lord Campbell, introduced a Bill which was to become the Obscene Publications Act of that year. It was in respect of matter seized under that legislation that the decision in R v Hicklin came about in 1868, where a test of obscenity was formulated by Cockburn LCJ, namely, whether the matter has a tendency “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”⁶¹ This frequently cited test became the accepted definition of obscenity both under the legislative provisions and in respect of the offence of obscene libel, and not only travelled into other common law jurisdictions but survived into present-day law.

28.

In England, the 1857 Act governed the law on obscene matter until it was replaced in 1959 by the Obscene Publications Act of that year. In Ireland, a censorship scheme was implemented through the various Censorship of Publications and Censorship of Films Acts. Although obscenity is nowhere defined in such legislation, the “corrupt and deprave” test is used as a part of the definition of “indecency” in the Censorship of Publications Acts.

Legislation on Libel

29.

As we have seen, the nineteenth century witnessed a large measure of political pressure in respect of newspaper libel, which left its imprint in the form of three important pieces of legislation the Libel Act 1843, the

Newspaper Libel and Registration Act 1881, and the Libel Law (Amendment) Act 1888. It may be noted that some of the provisions concern defamatory libel alone, while others are more general. In some cases, their application is to all forms of criminal libel, while in others it appears to extend to both forms of libel, civil and criminal.

30.

We shall now examine these provisions in some detail and record their passage into modern Irish law via the Defamation Act 1961. Interestingly, the osmosis was not complete. Some provisions which formerly applied to criminal proceedings are now applicable solely to civil proceedings.

Lord Campbell's Act 1843

31.

Mention has already been made of the Report of the Select Committee of the House of Lords on Defamation in 1843, and the Libel Act of that year which followed upon it. The more significant provisions of that Act are as follows.

Section 1 provided that in any action for defamation it should be lawful for the defendant to give in evidence in mitigation of damages that he made or offered an apology to the plaintiff before the commencement of the action, or as soon afterwards as he had an opportunity of doing so.

This section was always reserved to civil proceedings and continues to be so in section 17 of the Defamation Act 1961.

Section 2 provided that in any action for libel contained in any newspaper or other periodical, the defendant would be at liberty to pay into court a sum of money by way of amends provided (1) that he pleaded that the libel was inserted without actual malice and without gross negligence, and (2) that before the action or at the earliest opportunity afterwards he inserted in the newspaper or periodical a full apology.

This section is also of relevance to civil proceedings only, and therefore of passing interest to this Paper. However, it may be noted that no equivalent has been re-enacted. Order 22 RSC provides that the defendant in a libel action may make a payment into court only if he admits liability. This takes a different tack from the provision under consideration, because the latter made pleading a lack of certain types of culpability a pre-requisite to using the lodgement procedure. Another important difference is that Order 22 makes no distinction between media and other defendants.

Section 3 made it an offence to publish or threaten to publish, or propose to abstain from publishing, a libel with intent to extort money.

This section is not re-enacted in the Defamation Act 1961.

Section 4 provided that the penalty for maliciously publishing a defamatory libel knowing it to be false was to be imprisonment for a maximum of 2 years, and such fine as the Court awarded.

Section 5 provided that the penalty for maliciously publishing a defamatory libel (simpliciter) was to be imprisonment for a maximum of one year, or liability to a fine, or both.

The combined effect of these two sections was to create a two-tiered system of penalties in respect of defamatory libel, depending on knowledge of falsity or absence thereof. This feature has been carried through to the Defamation Act 1961, although the penalties are different.

Section 6 is of crucial significance. It provided that, on the trial of any indictment or information for a defamatory libel, the truth of the matters charged would amount to a defence provided the matter was published for the public benefit. This was a major inroad into the common law rule that truth was no defence to a charge of criminal libel. However, the requirement that the matter be for the public benefit as well as being true prevented the defence being identical to the defence of truth in relation to civil proceedings for defamatory libel.

This provision is carried through into the Defamation Act 1961.

Section 7 is another crucial provision. At common law, a master was vicariously liable for the publication of a libel by his servant or agent. This section provided that on the trial on indictment or information for the publication of a libel, when evidence is given which establishes a presumption of publication against the defendant by the act of another person within his authority, the defendant would be competent to prove that such publication was made without his authority, consent, or knowledge, and the publication did not arise from a want of due care or caution on his part.

This provision is also carried through into the Defamation Act 1961. Since it refers to “libel” without qualification, it appears to apply to all forms of

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=26

criminal libel.

The Newspaper Libel and Registration Act 1881

32.

Section 2 conferred a privilege on certain limited newspaper reports, reading as follows –

This important provision signifies the birth of the statutory defence of privilege in respect of newspaper reports. From the use of the words “plaintiff or prosecutor”, it seems clear that it was supposed to apply both in civil proceedings and criminal prosecutions.

Section 3 provided that no criminal prosecution could be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel contained therein without the written fiat or allowance of the Director of Public Prosecutions in England and the Attorney General in Ireland.

This was applicable to all forms of criminal libel.

Section 4 allowed a court of summary jurisdiction to dismiss the case if there was a strong presumption that the jury at the trial would acquit the person charged, after hearing the charge and evidence for the defence, including evidence that the matter was true and for public benefit or that the report was fair and accurate and published without malice. Again this provision was limited to defendants who were persons responsible for the publication of a newspaper. Newspaper was defined in section 1 to include periodicals published at intervals not exceeding 26 days.

Section 5 allowed a court of summary jurisdiction, which was of the opinion that the libel was of a trivial character, to ask the defendant whether he consented to the case being dealt with summarily, If the person so consented, the court could summarily convict him and impose a fine not exceeding £50. Again the section applied only to defendants who were responsible for the publication of newspapers.

This section appeared to apply to all forms of criminal libel.

The Law of Libel Amendment Act 1888

33.

Section 2 repealed section 2 of the 1881 Act, which had conferred privilege on fair and accurate reports of public meetings. It was replaced and developed by sections 3 and 4 of the 1888 Act.

Section 3 granted a privilege in respect of fair and accurate reports in newspapers of proceedings publicly heard before a court exercising judicial authority, if published contemporaneously with such proceedings. The section also stated that “nothing in this section shall authorise the publication of any blasphemous or indecent matter”.

Section 4 granted a privilege in respect of fair and accurate reports in newspapers of the proceedings of a public meeting or any one of a list of meetings set out in the section, subject to the following conditions-(a) that it was not made maliciously, (b) that it did not contain blasphemous or indecent matter, (c) that the defendant publish, if requested, a reasonable letter by way of contradiction or explanation of the report, and (d) that the publication was for public benefit.

These privileges were an expanded and refined version of the first privilege set out in the 1881 Act. It may be noted that, as sections 3 and 4 of the 1888 Act merely stated that such reports “shall” be privileged, without reference to the type of proceedings involved, we may assume that the defence would have applied in criminal proceedings as well as those of a civil nature. Also, section 4 refers to the dismissal of a criminal case after considering the evidence of fair and accurate report.

Section 8 provided that leave to prosecute was to be obtained from a judge in chambers.

It may also be noted that the 1888 Act did not apply to obscene libels.

The Defamation Act 1961

34.

The Law of Libel Amendment Act 1888 was the last piece of legislation in England directly to affect the offence of criminal libel. Although a major piece of legislation was passed in England in 1952, namely, the Defamation Act of that year, its ambit covered civil proceedings only. By contrast, in Ireland, the Defamation Act 1961 deals specifically with criminal libel in Part II. Part II preserves a number of provisions stemming from the 19th century legislation dealt with and contains no original material. This preservation was necessary because the First Schedule to the 1961 Act repeals the previous enactments; First Schedule, Part I repealing the 1792 Libel Act, and the First Schedule, Part II repealing the Acts of 1843,1881 and 1888. Certain of the 19th century provisions were carried through substantially to the 1961 Act, but are made to apply to civil proceedings. It is therefore of considerable importance to set out and examine precisely which provisions continue to apply to criminal proceedings and which do not.

35.

Section 5(1) of the 1961 Act continues the rules that a jury is competent to give a general verdict on a trial on indictment for libel. Section 6 carries through the defence of truth for the public benefit.⁶³ Section 7 continues the rule that a defendant may escape liability by showing that publication was made without his authority, consent or knowledge, and without any want of due care or caution on his part. Sections 11 and 12 maintains the distinction between maliciously published defamatory libels and such libels published with knowledge of their falsity. Section 9 maintains the section giving power to a court of summary jurisdiction to dismiss a case after hearing the evidence and concluding that there is a probability that the jury will acquit. The words “a court of summary jurisdiction” are replaced by “a Justice of the District Court”. Section 10 continues to allow for summary disposition of the case if the Court concludes the case is of a trivial nature and the defendant consents to waive trial by jury. Again the phrase “Justice of the District Court” has been employed. Section 8 maintains the rule that leave must be obtained to commence prosecution against a newspaper editor, proprietor or publisher. The phrase “Judge in chambers” has been replaced by the words “Judge of the High Court sitting in camera”.

The 1961 Act specifically sets out the penalties in respect of each offence. The maximum penalty for maliciously publishing a defamatory libel is currently a fine of £200 or imprisonment for one year, or both. The maximum fine for maliciously publishing a defamatory libel with knowledge of its falsity is a fine of £500 or imprisonment for 2 years, or both. Section 13 contains search and seizure provisions on foot of a court order in respect of blasphemous matter, and appears to be modelled on section 1 of the Criminal Libel Act 1819.

36.

A number of provisions were not carried through. Section 3 of the 1843 Act provided penalties for publishing, threatening to publish or abstain from publishing a libel with intent to extort money or secure an appointment or office. There is no provision to this effect in the 1961 Act. More importantly, the “fair and accurate” defences have been omitted from Part II of the 1961 Act. Section 3 of the 1888 Act dealt with newspaper reports of judicial proceedings, while section 4 dealt with reports of public meetings and the proceedings of a number of other bodies. In that Act they appeared to apply to criminal as well as civil proceedings. Although the 1961 Act carried these defences through, and indeed elaborates upon them, in respect of civil proceedings, they do not apply to criminal proceedings, and the repeal of the earlier. Acts means that the 1888 privileges are no longer available in criminal proceedings either. This appears to be a rather serious omission from Part II of the Defamation Act. That this was not intended is implied by the statement of the Parliamentary Secretary to the Minister for Justice when introducing the Bill;

The omission of two important privileges could hardly be called a “slight modification”. Furthermore section 9 of the 1961 Act, which deals with dismissal of a case, continues to refer to evidence of fair and accurate reports as a basis for dismissal. This is inconsistent if the defence of fair and accurate report is no longer a privilege conferred in criminal proceedings.

37.

The Defamation Act 1961 is the sole existing Irish piece of legislation on the offences of defamatory, seditious, blasphemous and obscene libel. The fleshing out of the offences accordingly rests with the common law, and in the next chapter we will deal with the features of these offences as so developed.

It is important to note, however, that there has been legislation in two of these areas, namely obscenity and sedition. It will be relevant to any consideration of the offence of criminal libel to see if its use has been superseded by other methods of dealing with the same matter. We will therefore be examining these areas of related legislation in a later chapter.

CHAPTER 2: THE PRESENT LAW OF DEFAMATORY LIBEL

38.

The common law crime of defamatory libel is now supplemented by the provisions of the Defamation Act 1961. Central to any discussion of the crime are the Constitutional guarantees of free speech in Article 40.6.1.i and of the right to a good name in Article 40.2. We have been unable to trace more than one Irish prosecution this century, this being the recent Fleming case in 1989, although there were a number of cases just before the turn of the century.¹

1. Commencement of Prosecution

39.

Leave to commence a prosecution in respect of a defamatory libel contained in a newspaper must be obtained from a High Court judge sitting in camera by virtue of section 8 of the Defamation Act 1961. Where the defamatory libel is elsewhere, no leave need be obtained.

It may be noted that in the 1977 House of Lords decision in Gleaves v Deakin², all the Law Lords thought that leave to prosecute should be in the hands of a prosecuting authority. Viscount Dilhorne would have given the power to the Attorney-General or DPP, Lords Edmund-Davies and Diplock to the Attorney-General, and Lord Scarman to an unspecified “prosecuting authority”.

40.

An interesting point is that it has been stated that, in deciding whether

leave should be given to prosecute, a factor not to be taken into account is the adequacy or otherwise of civil proceedings in a particular case. In Goldsmith v Pressdram,³ Wien J said:

In Gleaves v Deakin, Viscount Dilhorne said:

2. Features of the Offence

41.

Although the crime and tort of defamatory libel cover broadly the same matter, there is a danger in assuming that they are identical. One must be careful to observe which rules and defences apply to the crime and not the tort, and vice versa.

(a) Definition

42.

In Thorley v Lord Kerry,⁴ Mansfield CJ described the nature of defamatory words as words which

In more recent cases involving criminal libel, this definition has been cited with approval.⁵ However, it may be that the courts would accept more modern definitions of defamatory words from the cases on the tort of defamation, such as Lord Atkin's test in Sim v Stretch⁶:

or the test of Walsh J in Quigley v Creation Ltd.⁷:

A modern definition of defamatory words is the subject of some discussion in our Consultation Paper on the Civil Law of Defamation.⁸

(b) Form of Communication

43.

Slander is not a crime. The crime of defamatory libel encompasses written matter. It does not include broadcasts by means of wireless telegraphy. Section 15 of the Defamation Act 1961 treats such broadcasts as publication in permanent form, and therefore as libels, but is applicable to civil proceedings only.

(c) From Breach of the Peace to Gravity of Libel

44.

We have already seen that the breach of the peace element in the crime of defamatory libel arose from the nature of the aims of the Star Chamber, the birthplace of the crime of libel, namely, the preservation of state security and the maintenance of public peace. It is therefore natural that many of the cases make reference to a tendency to breach the peace as an essential ingredient of the offence of defamatory libel In R v Labouchere,⁹ for example, where application was made for leave to file a criminal information in respect of a libel upon a foreign national, Lord Coleridge CJ said;

In R v Holbrook,¹⁰ Lush J stated;

On the other hand, it seems that a number of convictions occurred where there was in fact little likelihood of a breach of the peace,¹¹ and it is probably this fact that it was sometimes the belief in the nineteenth century that the link between criminal libel and breach of the peace was a fiction.¹² In the later 19th century, due to the increasing popularity of the libel prosecutions, Lord Coleridge CJ sought to discourage such actions by requiring a risk of a breach of the peace.¹³ It became a widely held view that breach of the peace was a necessary element. It is of interest to note that the draft Code produced by the Criminal Code Commissioners in 1879, which was intended to be declaratory of the existing law, defined defamatory libel in section 227 as “matter published without legal justification or excuse, designed to insult the person to whom it is published, or calculated to injure the reputation of any person by exposing him to hatred, contempt or ridicule”. The marginal note explained the word “designed” as follows; “This is the existing law, the criminality of the libel depending on its tendency to produce a breach of the peace”. In the last Irish case on this point, R v Rea¹⁴, Lefroy CJ stated that as a general rule “an information or indictment cannot be sustained for defamatory words-namely, unless they amount to a breach of the peace, or were spoken with intent to provoke a breach of the peace”. However, the tide was to turn in 1936 in R v Wicks.¹⁵

45.

The breach of the peace element was one of the main issues in R v Wicks¹⁶ the leading case in relation to this issue. The alleged libel was contained in a letter from Mr. Wicks to a Mr. Chapman, who had been arrested and charged with forgery and other criminal offences at the instance of Sun Life Assurance Company of Canada. The defamatory statements concerned a Mr. Gurney, solicitor for the above company. There was bad feeling between the two parties and Mr. Wicks had been involved in litigation with Mr. Gurney for some time previously. His letter offered Mr. Chapman evidence which might assist him in his forthcoming trial. Mr. Chapman did

not accept the offer of help, but pleaded guilty and handed the letter over to Sun Life.

Mr. Wicks was prosecuted on two counts of defamatory libel: (1) publication of a defamatory libel knowing it to be false, contrary to section 4 of the Libel Act 1843, and (2) publication of a defamatory libel contrary to section 5 of the same Act, under which knowledge of falsity is not required. At the trial, Mr. Wicks' counsel argued first, that there was no evidence that the libel tended to create a breach of the peace, and second, that the letter was privileged. He did not attempt to justify. The Recorder, however, summed up in favour of the prosecution on both counts. The jury convicted and Mr. Wicks was sentenced to 12 months imprisonment. Counsel for the prosecution had raised a number of matters believed to be pertinent to sentence: a number of unsuccessful libel actions brought by Mr. Wicks, remarks by the Bankruptcy Registrar to the effect that he was a dangerous and unscrupulous man, the fact that Mr. Wicks had not given evidence in his defence, and for having first threatened and then desisted from pleading justification. The Recorder said the libel was one of the grossest he had ever seen.

On appeal to the Court of Criminal Appeal, four points were argued: that a criminal libel must tend to breach the peace, that the letter was privileged, that there was no evidence that Mr. Wicks knew the libel to be false, and that the sentence was unnecessarily severe. The appeal was dismissed, and leave to appeal to the House of Lords was refused. In the appellate court, Du Parcq J., speaking for the Court, stated as follows;

The actual holding in Wicks is questionable on a number of grounds. The facts might well have been found to ground a situation of qualified privilege¹⁷. Secondly, the method of deducing that the defendant had knowledge of falsity for the purposes of section 4 of the 1843 Act is highly questionable¹⁸. Finally,

the matters taken into account in passing sentence were also questionable. At the time, it was settled that a sentence might not be increased because of improper techniques used by the defence. It is even less desirable that a sentence be increased due to the use of proper techniques, such as a refusal to give evidence or a lack of attempt to plead justification. Furthermore, no mention should have been made of libels in respect of which Wicks had neither been tried or charged.

For present purposes, however, the holding in respect of the breach of the peace element is important. The principle that this was not an essential ingredient of the offence was upheld in Goldsmith v Pressdram.¹⁹ Wien J quoted from the judgment of Du Parcq J in Wicks with approval, and said:

The highlighted portions of the judgment show that, in considering whether the public interest requires prosecution, a new emphasis was placed on the gravity of the libel. The libel must be so serious as to warrant public prosecution. In deciding whether this is so, a tendency to breach the peace is a factor, but not a necessary one. Contrasting the decision with Labouchere referred to above, the focus has therefore changed. The main enquiry is the seriousness of the libel, the breach of the peace element is now a sufficient but not necessary ingredient.

46.

The breach of the peace decision in Wicks was also approved by the House of Lords in Gleaves v Deakin²⁰ in 1979. The narrow point on appeal was whether at committal proceedings the appellants could call evidence of the prosecutor's general bad reputation. The House of Lords held that like the defence of justification, evidence of bad reputation had to await trial, but four of the five Law Lords went on to consider the offence in a more general manner.

Viscount Dilhorne said:

Citing Labouchere in support of this older view and considering the comments of Wien J quoted above, he continued:

Lord Edmund Davies said:

Lord Edmund Davies also went on to cite from Du Parcq's judgment in Wicks with approval. The test advocated by this Law Lord was whether

Lord Scarman observed that “to warrant prosecution, the libel must be sufficiently serious to require the intervention of the Crown in the public interest.” He said that this requirement had grown out of the common law principle that a criminal libel had a tendency to breach the peace, and made

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=37

the interesting point that Blackstone's definition of libels assumed an inherent tendency to breach the peace, under which view proof of the libel alone would suffice.²¹ Referring to Du Parcq J's judgment in Wicks, Lord Scarman said:

Lord Diplock thought that the offence contained “serious anomalies” which were difficult to reconcile with Article 10.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He appeared to be of the view that a tendency to provoke a breach of the peace had vanished both as an element and as a rationale for the crime, two distinct ideas:

47.

The question of when leave should be granted has been considered in two modern Irish cases. In Application of Gallagher²² the principles applied by Wien J in Goldsmith v Pressdram were expressly approved of and were summarised as follows:

Finlay P said that, in his view the only qualification which was necessary in Ireland was that the court would also have to have regard to the constitutional guarantees of personal rights.

48.

More recently, the law in the matter was considered by Gannon J in Hilliard v Penfield Enterprises Ltd and Others.²³ In that case an article in a magazine published and edited by the defendants contained serious allegations about the husband of the applicant, a clergyman who had been killed in horrific circumstances shortly before the publication appeared. The applicant applied under section 8 of the 1961 Act for leave to commence a criminal prosecution and, by agreement of the parties, the learned judge gave his decision in open court.

Having described the article in question as

Gannon J went on to consider the applicable legal principles. Having referred to the English authorities and to Gallagher, he said it was clear that section 8 of the 1961 Act imposed an onus on the applicant to show that it was in the public interest that there should be a prosecution. Having observed that sections 6 and 9 of the 1961 Act imposed a contrary onus on defendants to show that the publication was in the public interest, he went on to say:

A special factor in Hilliard, was, of course, the fact that the person allegedly defamed was dead. We shall return shortly to the question as to whether a criminal prosecution for libel may be instituted in such a case. At this point, however, it may be said that, following the decisions in R v Wicks, Goldsmith v Pressdram and Gleaves v Deakin, as applied in Ireland in Gallagher and Hilliard, a tendency to provoke a breach of the public peace is no longer a necessary ingredient of the crime of libel in either Ireland or England. The important factor is whether the libel is of so serious a character that the public interest requires the institution of criminal proceedings. A tendency to breach the public peace may point towards the gravity of the libel, but is not the sole factor to be taken into account.

(d) Publication

49.

In criminal proceedings in respect of the crime of defamatory libel it is not necessary to show publication to a party other than the victim himself.²⁴ This stands in contrast to the position in relation to civil proceedings, where publication to a third party is not only necessary, but must have been intentional or reasonably foreseeable.

The lack of a requirement of publication to a third party stems from the historical fact that the offence of defamatory libel was created in order to suppress duelling, and publication to the victim would be the most likely way of encouraging a breach of the peace. Consequently, it may be that where there is publication to the victim alone, there must additionally be a tendency to provoke a breach of the peace.

This view appears to be supported by the decision in R.v. Adams²⁵ where a man was held guilty of defamatory libel specifically on the basis that the letter sent only to the victim tended to cause a breach of the peace on her

part.²⁶ On the other hand, Kenny observes that the count in that case did not contain the allegation that the words tended to breach the peace.²⁷ However, it seems plain that the tendency to cause a breach of the peace was perceived to be the basis of the defamation, Lord Coleridge CJ stating:

Doubt is now cast upon this issue by the decisions in Wicks and Gleaves v Deakin²⁸, both of which cases held that a tendency to provoke a breach of the peace was no longer a constituent part of the crime of libel. The breach of the peace element in the context of publication was not, however, specifically adverted to and it accordingly remains uncertain whether a tendency to provoke a breach of the peace must be shown in cases where there is publication to the victim alone, although it is clear that in other cases a tendency to breach the peace is not necessary. The more likely view is that publication to the victim without this tendency is sufficient.

(e) Identity of the Victim

(i) Libel of the Dead

50.

Older cases support the view that a criminal prosecution may be brought in respect of a libel upon a dead person. In De Libellis Famosis,²⁹ Coke said:

It was held in R v Topham³⁰ that to support an indictment for libel on a

dead person, the libel must have been done with intent to bring contempt upon the family or to stir up the hatred of others against relations and thus induce them into break the peace in defending their good name.

Some doubt was cast upon these older decisions by the decision in R v Ensor³¹, where Stephen J referred to the passage above made by Coke and said;

Stephen J went on to consider the “only real” authority, R v Topham. and said;

51.

These authorities, particularly the observations of Stephen J in Ensor, were referred to in Hilliard, the facts of which have already been set out. In refusing the application under section 8, Gannon J said that

It would seem, accordingly, that the law in Ireland is that a libel on the dead may be the subject of criminal prosecution where the statement reflects upon living persons to a degree sufficient to warrant the institution of a criminal prosecution. If it reached the necessary degree of seriousness, however, it would seem from Gallagher and Hilliard, that a tendency to breach the peace would not be a necessary requirement for such leave.

(ii) Corporate Libel

52.

A company or corporation may be the victim of a criminal libel³². It may also be indicted on a charge of criminal libel³³. In the Triplex case it had been contended, inter alia, that a corporation could not be indicted for libel, and the court responded:

(iii) Group Libel

53.

Civil proceedings for libel may be maintained in respect of defamation of a group if the words or circumstances sufficiently refer to the plaintiff as an individual. However, the general rule is that there is no civil action for libelling a class of persons since its members are usually too numerous to make such an action practicable. The position in relation to criminal proceedings is unsettled, there being authority both for and against the proposition that an indictment lies where the object of the publication was to excite hatred against a class of persons.³⁴ Kenny is of the view that criminal proceedings may be carried on by a definite class of persons, since technically the prosecution is not by the persons injured, but by the Crown. Russell is also of this view, stating:

(f) Mens Rea

54.

Unlike the area of blasphemous libel, the crime of defamatory libel does not have the benefit of a recent decision turning specifically on the mens rea of the crime.³⁶ The English Law Commission in its Working paper on Criminal Libel accepted that the authorities were inconclusive, some suggesting that the offence is one of strict liability while others seem to require an intent to defame. It attributed this uncertainty to the fact that the words which had been the subject of prosecutions had all been plainly defamatory, so that the author must have been aware of the defamatory meaning. The Commission concluded that it was an open question whether a defendant would be liable where he had clearly intended to publish but had not intended to defame. Smith and Hogan suggest that the more likely view is that the defendant must have intended to publish matter bearing a defamatory meaning, rather than have intended to publish such matter with a defamatory intent. Russell is also of this view, stating:

This is certainly the modern position in relation to the crime of blasphemous libel, namely that intention to publish matter bearing a blasphemous meaning is sufficient. However, it is not self-evident that the mens rea in relation to blasphemous and defamatory libel is identical. Words referring to a person have an unfortunate potential to take on defamatory meanings; it may turn out that a reference to a fictitious person is understood to refer to a real person, or an innocent statement may suddenly become loaded with innuendo when facts unknown to the speaker emerge. A person might innocently announce to the office that he or she saw Mr. X at lunch in a restaurant,

unaware that Mr. X had called in sick that day. There is always a danger that the speaker only has one piece of the jigsaw puzzle, while the listeners have the others, and the resulting picture may be defamatory. Words carrying blasphemous meanings have this tendency to a lesser degree. The essence of the harmful statement is insult to a religion, expressed in immoderate terms. It is much more difficult to conceive of circumstances in which the speaker was unaware that he or she was insulting and causing outrage to a religion, than it is to imagine a speaker who is unaware of the defamatory nature of his words. We may conclude that if an Irish court were to consider the issue of mens rea in the case of defamatory libel, it would not necessarily be influenced by the holding in Lemon on the mens rea of blasphemous libel.

55.

A question arises as to the meaning of the word “maliciously” in sections 11 and 12 of the Defamation Act 1961. Section 11 sets out the penalties for “maliciously publishing a defamatory libel”, while section 12 contains the penalties for “maliciously publishing a defamatory libel knowing it to be false”. Malice might be thought to refer to the defendant's attitude to the falsity or truth of the statement – as in American authorities – but this construction is ruled out by the wording of section 12 which uses “maliciously” and “knowing it to be false” in such a manner as to show that they are not synonymous. What then does malice mean? Deliberate publication? Intention to defame? Does it merely reflect a presumption in law that defamatory statements are published maliciously? After all, in civil proceedings, where the intent of the defamer is irrelevant, the statement of claim reads “...that the plaintiff falsely and maliciously published...” In this context it is accepted that the use of the word “maliciously” is mere surplusage, as distinguished from the mental element of malice which may defeat the defences of fair comment and qualified privilege.

It seems that the latter view of the term “maliciously” in sections 11 and 12 of the 1961 Act is the correct one. Lord Russell of Killowen CJ said in respect of their predecessors(sections 4 and 5 of the Libel Act 1843);

56.

The English Law Commission state that there is one principle in relation to intent that is common to both civil and criminal proceedings for libel, namely, that the intention of the defamer as regards the defamatory

nature of the words is not relevant. Words reasonably understood to be defamatory will be so even if the defamer did not intend them to be understood in a defamatory way. At first sight, this seems to clash with one of the possible views of mens rea. It seems paradoxical to require an intent to defame and yet say that the intent of the defamer in relation to the defamatory nature of the words is irrelevant. However, there are two separate questions: first, what the defamer meant to achieve in publishing the matter and second, what the defamer's understanding of the words published was. Thus A might want to malign B, but chooses a fairly harmless set of words here there is an intent to defame but no defamatory words. Conversely, A might have had no intention to malign B, but inadvertently said something which would generally be considered to be defamatory. For example, A might be a newspaper reporting court proceedings and mistakenly name B as a defendant in a murder case. In this situation, there is no intent to defame, but there are defamatory words. The point made by the English Law Commission is simply that when it comes to construing words, one does not seek the advice of the person who chose the words. This has very little bearing on the issue of mens rea, but is worthy of mention lest it cause confusion.

3. Defences

57.

Russell states that the defences to an indictment for defamatory libel are as follows:

Defences (1) to (6) may be set up under a plea of not guilty. Defence (7) must be set up by special plea.

(a) Justification

58.

At common law truth was not a defence in criminal proceedings for libel. In De Libellis Famosis³⁹ Coke said:

It was this common law rule that led to the saying. “The greater the truth the greater the libel”, because it is clear that if the truth of the matter is not a defence, true matter could often and indeed more often did lead to a breach of the peace and hence to a libel, because the person would be more sensitive about a matter which was true.

59.

Section 6 of the Defamation Act 1961 allows the defendant to plead in his defence that the matter was true and was published for the public benefit. The requirement of showing that it was published for the public benefit renders the defence more difficult to comply with than the defence in civil proceedings. As Kenny observes, the existence of this proviso makes it possible to repress the publication of statements which, “though quite true, are objectionable, whether on grounds of decency, or as being disclosures of state secrets, or as being painful and needless intrusion into the privacy of domestic life.”⁴¹

The defendant must specifically plead the defence of justification and must give written particulars of (1) the truth of the matters alleged, and (2) the facts which indicate the public benefit for which it was published. The prosecution may, but is not obliged to, reply generally, denying the matters specified in the plea of justification. Under the section, the court may take into account an unsuccessful plea of justification “in aggravation or mitigation” of sentence.

Section 6 also provides that, if no defence of justification is raised, on no account shall the truth of the matters alleged be entered into. As in civil proceedings, there is a presumption of falsity and the burden of showing truth is actively thrust on the defendant.

(b) Privilege

(i) Absolute Privilege

60.

Absolute privilege confers complete protection on a number of categories of statement by reason of the occasion of their utterance or publication. In respect of the tort of defamation, these are said to be:

The wording of the Constitutional immunity in respect of Parliamentary utterances appears to apply to the crime of libel also, since Article 15.12 provides that

and Article 15.13 provides that

The immunity conferred by the 1976 Act on statements at proceedings of Parliamentary Committees also appears to cover criminal proceedings.

61.

The remaining instances of absolute privilege exist by virtue of the common law and appear to apply to criminal proceedings. Support for the view that statements in judicial proceedings or statements between solicitor and client are absolutely privileged in criminal proceedings is found in R v Wicks,⁴² where these privileges appear to have been assumed as applicable in the appropriate case by Du Parcq J. Russell is of the view that all of the instances of absolute privilege mentioned are applicable in criminal

proceedings.

(ii) Qualified Privilege

At Common Law

62.

The defence of qualified privilege at common law applies to a wide range of situations, broadly summarised as cases where there is a duty or interest on the part of the speaker and the recipient in the subject-matter of the communication. This form of privilege may be defeated by irrelevance, or excess of communication i.e. publication solely or additionally to persons without an interest or duty in receiving the communication. It is also defeated by proof of malice, defined in Horrocks v Lowe⁴³ as a dominant improper motive, usually but not exclusively a lack of belief in the truth of the statement.

It appears that this common law defence also applies in criminal proceedings. In R v Rule,⁴⁴ it was held that qualified privilege was a defence to a criminal charge of defamatory libel, the qualified privilege in question being constituted by a written communication from a constituent to his MP asking for assistance to lodge a complaint to the appropriate MP concerning the conduct of a public official in that consituency.⁴⁵ In R v Wicks,⁴⁶ Du Parcq J assumed that the defence of qualified privilege would apply in criminal proceedings if the facts were appropriate, but found that the common interest in the case before him was too slim to ground such privilege. This decision on the particular facts is questionable. A letter offering evidence to someone accused of a crime could well be considered to be published on an occasion of qualified privilege. As Spencer observes,

The particular finding of absence of qualified privilege on the facts of this case is debatable and does no service to the development of this form of privilege in criminal cases.

By Statute

63.

The Defamation Act 1961 provides two statutory defences normally classified as instances of qualified privilege to newspapers in civil proceedings only. Since they are confined to the media, they will be dealt with below.

(c) Fair Comment on a Matter of Public Interest

64.

In civil proceedings for libel, there is a defence open to the defendant, in order to comply with which he must show:

The rigour of requirement (c) has been somewhat ameliorated by section 23 of the Defamation Act 1961. Like the defence of qualified privilege, this defence can also be defeated by a showing of malice.

It is clear that section 23 of the Defamation Act does not apply to criminal proceedings. However, it is not even settled that the common law defence of fair comment applies to criminal proceedings at all, although the more likely view is that it does. A number of nineteenth century authorities support the view that this is so⁴⁸. Halsbury suggests that the defence would be available if properly pleaded.⁴⁹

(d) Vicarious Liability

65.

The common law rule that a master was liable for all publications of his servant or agent was mitigated by section 7 of the Libel Act 1843, which is reproduced in section 7 of the Irish Defamation Act 1961. It provides that when a defendant pleads not guilty to the publication of a libel (therefore of whatever type), evidence which establishes a presumption of publication against him by the act of another person under his authority may be rebutted by evidence that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part.

It has been held that where a newspaper proprietor gives his authority to an editor to publish what is suitable and the editor publishes a defamatory statement, the proprietor may avail of the statutory defence.⁵⁰

(e) Distributors

66.

It is a defence in civil proceedings for libel that the defendant was a distributor and that he was not aware that the publication contained a libel nor negligent in failing to detect it or to be averted to the fact that the publication might contain a libel. It is unclear whether this defence would apply in criminal proceedings. In one case it was held that a newspaper boy was not guilty of libel where he sold a newspaper containing a defamatory statement of which he was not aware.⁵¹ This is slim authority, and such authority as exists appears to be for the view that a lack of negligence in this respect would provide a defence and arises in cases, not concerning libel, but respecting contempt of court⁵².

It seems clear however that any such defence certainly does not apply to printers. There is no such defence for printers under the civil law,. In Re Read and Huggonson⁵³ Lord Hardwicke said of the trade of “printing papers and pamphlets”:

4. Special Provisions for Newspapers

67.

It will be recalled that the 1881 Newspaper Registration and Libel Act and the 1888 Libel Amendment Act were passed as a result of political pressure exerted by newspaper proprietors in parliament. Some of these provisions have been re-enacted in the Irish Defamation Act as follows.

Leave to Prosecute

68.

Under section 8 of the 1888 Act, an order of a judge in chambers was required to initiate a prosecution against a newspaper defendant. This is

substantially reproduced in section 8 of the Defamation Act 1961 which provides that–

It was held in one English case on section 8 of the 1888 Act that no appeal lies against a judge's decision to allow or refuse leave to prosecute.⁵⁴

In Goldsmith v Pressdram, Wien J laid down guidelines for the exercise of this judicial discretion⁵⁵: (1) there must be a clear prima facie case; (2) the libel must be so serious as to warrant the intervention of the criminal law; in consideration of this factor a tendency to provoke a breach of the peace is relevant, but is not the sole determinant factor; and (3) the public interest must require the institution of criminal proceedings. The adequacy of possible civil remedies is irrelevant to the exercise of this discretion. These guidelines have been applied in Ireland in Application of Gallagher and Hilliard v Penfield Enterprises Ltd and others.⁵⁶

Inquiry by the District Court

69.

Section 9 of the 1961 Act also applies only to newspapers. It allows a District Justice, upon the hearing of a charge against a proprietor, publisher, editor or other person responsible for the publication of a newspaper for libel, to examine evidence as to the publication being for the public benefit or the matters being true or any other matter which may be given in defence, and to dismiss the case if he is of opinion that there is “a strong or probable presumption that the jury on the trial would acquit the person charged.” The section also allows the Justice to receive evidence of the report's being fair and accurate and published without malice, a point which will be returned to later.

There is also provision for a summary conviction for libel in section 10 of the 1961 Act. It is interesting that the English equivalent, section 5 of the 1881

Act, has been repealed in that jurisdiction by the Criminal Law Act 1977, sections 17 and 65, and section 13. Section 10 of our Act empowers a District Justice to try the case summarily if he is of the opinion that the libel is of a trivial character and the defendant consents to the matter being dealt with summarily. Again this applies only to charges against proprietors, publishers, editors or other persons responsible for the publication of a newspaper.

Privileges

70.

Section 3 of the Law of Libel Amendment Act 1888 accorded to newspapers a privilege for fair and accurate reports of proceedings publicly heard before any court exercising judicial authority, provided such report was published contemporaneously with such proceedings. This provision is still in force in England. However, our 1961 Act repealed the 1888 Act in entirety, and did not re-enact this particular privilege in the context of criminal prosecutions. Section 18 of the 1961 Act clearly uses identical wording, but it applies only to civil proceedings.

Section 4 of the 1888 Act provided a qualified privilege in respect of fair and accurate reports in newspapers of public meetings and of certain bodies and persons. In England this section was repealed and replaced by section 18(3) of the Defamation Act 1952, which contains wider provisions. However, being limited to civil proceedings, this leaves English newspapers in the same position as Irish newspapers in this context. Section 24 of our Defamation Act 1961 does the same thing, namely enacts a wider list of proceedings but only in the context of civil proceedings. Again this development widens the gulf between the protections afforded to a defendant in civil proceedings and a criminal prosecution for libel.

5. Penalties

71.

The penalties for defamatory libel are set out in the Defamation Act 1961. The penalty for maliciously publishing a defamatory libel knowing it to be false under section 12 is a fine not exceeding £500, or imprisonment for a term not exceeding 2 years, or both. Under section 11, the penalty for maliciously publishing a defamation libel simpliciter is a maximum fine of £200, or a maximum term of imprisonment of one year, or both.

72.

One would have thought that the prosecution would be required to show that the accused actually knew that the material was false in order to establish the offence referred to in section 12. However, the decision in R v Wicks⁵⁷ is disturbing in this respect. Arguably the presumptions of a libel

trial were incorrectly used to make a finding of fact for the English equivalent of section 4. First, the prosecution did not prove falsity. Instead, the presumption of falsity was used in ease of the prosecution. As Spencer observes,

73.

Secondly, the prosecution did not prove that the accused believed the matter to be false. The court ruled that this belief could be inferred from his statement in the letter stating that his opinion of Gurney was based on first-hand knowledge of this man. The upshot was that the court seems to have shifted the burden in section 4 on to the defendant to disprove that he had knowledge of falsity, by turning the presumption that the libel is false into a presumption that the defendant knows it is false.

6. Comparison between Defamation in Civil Proceedings and the Crime of Libel

74.

CHAPTER 3: THE PRESENT LAW OF SEDITIOUS LIBEL

(1) The common law offence and Irish legislation – a problem of identification

75.

To our knowledge the last reported case of seditious libel in this jurisdiction was in 1901.¹ Of particular interest to any discussion of the crime of seditious libel is the Constitutional guarantee in Article 40.6.1.i of the citizen's “rightful liberty of expression, including criticism of Government policy”, which is followed by the statement that “The publication or utterance of...seditious ...matter is an offence which shall be punishable in accordance with law”. Surprisingly the Defamation Act 1961 does not refer to seditious libel.

76.

A question which arises in this context is whether a particular provision of the Offences against the State Act 1939 consitutes seditious libel, or is merely similar to it. This is section 10(1) of the Act, which provides;

During the course of the passage of the Defamation Bill through the Dail,

some confusion was evident on this point.

The word “libel” is not mentioned in the 1939 Act. Also the offence in section 10(1) covers more ground than the offence of seditious libel. We shall assume that the offence in section 10(1) is not the offence of seditious libel, but merely covers similiar ground. However, the absence of penalty in respect of seditious libel in the Defamation Act 1961 leaves this open to some doubt.

(2)Ingredients of the common law offence

77.

The law of sedition includes the uttering of seditious words, the publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious intention. We will be confining our comments to the crime of publishing written seditious material.

(a) Seditious Matter

78.

A seditious libel consists of the written publication of words with seditious intention. One of the accepted definitions of “seditious intention” is that of Stephen, from his Digest of the Criminal Law, which was accepted in Irish law as the correct definition by O'Brien LCJ in The Queen v McHugh:²

In this context, seditious intention appears to refer to the nature of the matter

rather than the defendant's state of mind, for, as we shall see, a seditious intention as mens rea is probably not required.

79.

In the McHugh case, the libel consisted of the publication of words implying that the jurors in a particular case had been used as corrupt tools of a Government to give a false verdict, and that this was typical of the system as a whole. It was held to be a seditious libel as tending to bring into contempt the administration of justice. The Lord Chief Justice considered the argument that the attack on the judge in the case was a personal libel, but found that he was attacked in his capacity as a judge, approving the view of Odgers that

80.

An interesting test was put forward by Madden J in R v. McHugh, where he saw the dividing line between seditious and non-seditious speech in the context of statements concerning the administration of justice as the difference between statements for the purpose of “purifying” and statements for the purpose of “vilifying” the system:

81.

A publication may be found to constitute a seditious libel even where it is not described as such by the prosecution. In R v McHugh, O'Brien LCJ said “if the substance of what is a seditious libel is stated, this is enough”, or as Gibson J put it, “The thing is there though the word is not.”

82.

Even if the offence in section 10(1) of the Offences against the State

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=58

Act 1939 is not the crime of seditious libel, but a related statutory offence, it is possible that a court would draw guidance on the meaning of the term “seditious” from the definition of “seditious document” in section 2 of the same Act. A seditious document includes–

This definition reflects the immediate historical context of the legislation. Nonetheless if we take the above definition and the Stephen's definition as representative of the Irish definition of seditious matter, the essence of seditious matter appears to be matter which undermines the authority of the organs of Government. We may note at this point that no advocacy of overthrow by violence appears to be required.

(b) Intention to disturb authority by advocating violence

83.

It was held in the recent Canadian case of R v Boucher,³ that a further requirement of the offence is an intention to cause public disturbance or disorder against the institutions of government by violence: “Not only must there be proof of incitement to violence in this connection, but it must be violence or defiance for the purpose of disturbing constituted authority.” The English Law Commission noted that this aspect of the offence appeared to have been approved in the older English cases of Collins⁴ and Aldred⁵. It concluded that it was unlikely that a modern court would make the offence

wider than the publication of matter designed to secure the overthrow of authority by violence.

We do not think that this is the position in Ireland. Neither of the two definitions offered by us has included any reference to violence. Furthermore, the Consitution defines treason to include “inciting... to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or ... inciting...to make or take part or be concerned in any such attempt”. (Article 39) Clearly one of the primary ways of “inciting” is by means of written publication. If the written publication of matter inciting to violent overthrow of consitutionally grounded organs of government is treason under our Constitution, it would seem that sedition is something else. That it is matter criticising and tending to undermine the authority of the organs of State is in harmony with the definitions of Stephen and of the Offences against the State Act 1939.

In conclusion, we suggest that the advocacy of violence is not a part of the definition of seditious matter in Irish law.

(c) Mens Rea

84.

As with defamatory libel, it is not clear what mental element is required.⁶ Is it an intention to publish seditious matter with a seditious intention, or an intention to publish matter bearing a seditious meaning only?

We have already seen in our historical section that the mens rea element in relation to seditious libel was closely interwoven with the role of judge and jury, and the prevailing views of government criticism. When the Star Chamber was arbiter of both fact and law, the mens rea favoured appears to have been intention to publish with a seditious intent. When juries became involved in libel trials, after this jurisdiction was handed over to the common law courts, the preferred mens rea appears to have been merely intention to publish. The judge decided whether the matter published constituted a libel, and therefore held the key position in the proceedings. After the 1792 Libel Act in England and the equivalent 1793 Act in Ireland, juries were empowered to give a general verdict on the whole issue, in other words decide whether there had been a libel.

What was the mental element after this point? Stephen appears to have favoured an objective test in his Digest⁷, stating in relation to a seditious intention, “every person must be deemed to intend the consequences which

would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.” The imposition of an objective test was also favoured in the Scottish case of Grant⁸. In that case, however, Lord Cockburn thought that there had been a confusion between the meaning of the libel and the intention of the author, and that while the former should be evidence of the latter, the two concepts should not be deemed synonymous. Smith and Hogan observe that such a confusion has without doubt occurred in other areas of the criminal law, and that Lord Cockburn's preference for intention or recklessness as the test is more in harmony with general principles of the criminal law. By contrast, in Burns, Cave J took the intention/recklessness test one step further, and directed the jury that intention was necessary, and even recklessness would not suffice. This judge based this view of the necessary mental element on the view expressed by Stephen in his History of the Criminal law, which is a view at odds with his own view in the Digest referred to above.

We may conclude that the mens rea of seditious libel is unsettled in modern law.

(3) Defences

Truth

85.

The defence under section 6 of the Defamation Act 1961 that the matter was true and published for the public benefit does not apply to seditious libel. This would seem to be apparent from the wording of the section, but in any event its predecessor, section 6 of the 1843 Libel Act, was expressly held not to apply to seditious libels in three Irish cases: The Queen v Duffy,⁹Ex parte O'Brien¹⁰, and The Queen v McHugh¹¹. In the first of these cases, Blackburn CJ stated:

Privilege

86.

In The Queen v McHugh it was held that the statutory privilege of reporting public meetings conferred by the 1888 Act did not apply to seditious libel, since it was conditional upon the matter being for public benefit, and seditious matter could not be for public benefit. In any event, the extensive privilege for reports which is contained in our Defamation Act 1961 does not apply to any criminal proceedings for libel.

CHAPTER 4: THE PRESENT LAW OF BLASPHEMOUS LIBEL

87.

The modern Irish law of blasphemous libel is dominated by the Constitutional prohibition on the publication of blasphemous matter in Article 40.6.1.i. The common law is the major source prohibiting such publications by law. The only other provision with respect to publication of blasphemous matter is contained in section 7 (2) of the Censorship of Films Act 1923. The common law of blasphemous libel is supplemented by the provisions in respect of penalty and seizure in the Defamation Act 1961.

88.

In the English case law there are two major decisions in relation to blasphemous libel in the context of modern law. The first is Bowman v Secular Society Ltd¹, which put to rest in that jurisdiction most doubts surrounding the nature of the matter which can constitute blasphemous libel. The second is Whitehouse v Lemon and Gay News², which definitively settled the mens rea of the offence. Both are decisions of the House of Lords, the first in 1917 and the second in 1979. Furthermore, the configuration of facts in Lemon was presented to the European Commission by way of challenge to the common law on blasphemous libel under the European Convention on Human Rights and Fundamental Freedoms.³ In the absence of Irish authority this century, we will set out the English law and consider later whether it is applicable in Ireland, a matter which is open to some doubt.

1.Commencement of Proceedings

89.

Any member of the public may institute proceedings for blasphemous

libel where the defendant is other than a newspaper editor, published or proprietor. Where the defendant falls within the latter category, section 8 of the Defamation Act 1961 requires the consent of a High Court judge to be first obtained.

2. The Nature of Blasphemous Matter

90.

If it is an offence of publishing blasphemous matter, we must know what constitutes blasphemous matter. Unfortunately neither the Defamation Act 1961 nor the discussion that accompanied the Bill are useful in this regard.

What is the nature of blasphemous matter? More particularly, is it, or indeed was it ever, blasphemous simply to express disbelief in Christianity, or was blasphemous matter constituted only by such disbelief couched in scurrilous or offensive language so as to anger believers and provoke them to a breach of the peace? This is a question which has provoked some controversy. We shall see that in Bowman v Secular Society Ltd,⁴ some of the Law Lords were of the view that the mere expression of disbelief in Christianity alone had never been an offence, and that the absence of a conviction for questioning of Christian doctrines expressed in temperate language showed this to be so.

91.

Nonetheless there is also much support for the view that originally any denial of Christianity constituted blasphemy. This is supported by Kenny, who stated:

In our opening chapter we adopted the latter view, stating that the actus reus of the offence of blasphemy grew out of any challenge to the doctrines of Christianity into attacks that are couched in offensive language, and that this shift occurred in the mid-nineteenth century, due in part to the influence of the writings of Starkie.⁶ We will now proceed to examine the case law setting

out the more modern view of the actus reus of blasphemy, including Starkie's justification therefor, commencing with the ruling in R v Hetherington⁷ and finishing with the authoritative decision of the House of Lords in Bowman v Secular Society.⁸

92.

The case of R v Hetherington⁹ is generally accepted as the linchpin of the modern English law of blasphemy. The passage which was to be often cited in later cases was that of Lord Denman CJ where he said:

In Ramsey v Foote¹⁰, Lord Coleridge CJ outlined the change in attitude from earlier times:

He proceeded to quote a passage from Starkie on Libel,¹¹ describing it as a correct statement of the law, which passage contained the following fine exposition of the reasons for tolerance of free speech–

In his direction to the jury, Lord Coleridge CJ said:

The italicised passage from Starkie had also been quoted with approval by Lord Coleridge CJ in a case decided 14 days previously, R v Bradlaugh.¹² In that case, Lord Coleridge based his exposition of the existing law of blasphemous libel on an analogy with seditious libel, showing incidentally how views on political as well as religious criticism had altered by the late nineteenth century:

93.

If any doubts persisted as to the actus reus of the offence of blasphemous libel, they were put to rest in a case which came before the House of Lords in 1917. The case was Bowman v Secular Society Ltd;¹³ it involved a bequest to a company formed for the purposed of promoting the view that “human conduct should be based upon natural knowledge, and not upon super-natural belief” and devoted to the secularisation of education and society in general. One of the issues was whether this purpose was unlawful, as constituting the offence of blasphemous libel.

Lord Dunedin was of the view that this offence would only be constituted by publications “couched in scurrilous language”.

Lord Parker stated:

It will be remembered from our historical section that the case of Briggs v Hartley¹⁴ represented some obstacle to the court, it having held that a trust to provide a prize for the best essay on natural theology treated as a science was void as inconsistent with Christianity. Lord Parker was of the view the case was wrongly decided because “there is nothing contrary to the policy of the law in an attack on or a denial of the truth of Christianity or any of its fundamental doctrines, provided such attack or denial is unaccompanied by such an element of vilification, ridicule, or irreverence as is necessary for the common law offence of blasphemy.”

Lord Sumner undertook an extensive review of the authorities, in the course of which he stated:

It is noteworthy that Lord Sumner did not accept that attitudes towards dissenting religious opinion had changed, but considered that the authorities indicated that temperate language had always been acceptable:

Later, he added:

In any event, Lord Sumner accepted that the modern actus reus of the offence

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=68

was as follows:

Lord Buckmaster was also of the view that it had always been the law that temperate discussion of Christianity was permissible, stating that “with one possible exception... every reported case on the matter... is a case where the offence alleged was associated with, and I think constituted by violent, offensive, or indecent words”. He went on to say:

94.

What then is blasphemous matter? Lord Buckmaster said it was constituted by violent and offensive words, Lord Dunedin that it must be couched in scurrilous language, while Lord Sumner said that “respectful denial “did not constitute the offence”. The fullest definition was provided by Lord Parker, who described it as words “containing such an element of vilification, ridicule, or irreverence, as would be likely to exasperate the feelings of others and so lead to a breach of the peace.”

It is unfortunate that Lord Sumner expressed his definition in negative terms, for the breach of the peace issue contained in Lord Parker's definition leaves a question mark in the air. Must it be shown that the words tended to cause an immediate breach of the peace, or were the words so used merely in a descriptive way? We saw that Lord Sumner identified the rationale of the offence of blasphemous libel as being its inherent “tendency in fact to shake the fabric of society generally.” This tendency, he said, varied according to the period, and nowadays a discussion of the doctrines of Christianity would hardly contain this potential. Notably his view of this aspect of the breach of the peace element did not make it a requirement, but was rather an observation on the type of speech at issue and the reasons for the creation of the offence. As to breach of the peace in a narrower sense, he said “its tendency to provoke an immediate breach of the peace is not the essential, but only an occasional, feature”. Lord Parker's view of the breach of the peace aspect of the offence was somewhat narrower: “likely to exasperate the feelings of others and so lead to a breach of the peace.” Lord Sumner's failure to define the offence in positive terms made it more likely that the Parker

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=69

definition would be adopted.¹⁵

3.The Mental Element

95.

The mental element in the offence of blasphemous libel assumed a priority only late in the day. As Lord Edmund Davies pointed out in Lemon¹⁶:

It will be seen that the mens rea of the offence of blasphemous libel prior to 1979 was precisely the issue before the House of Lords in Lemon, and that unanimity on this question was not forthcoming. The majority were of the view that a specific intention to blaspheme was not an element of the offence, while the minority felt that the matter was open for decision. This can to some extent be attributed to the ambiguity in two of the leading cases on blasphemous libel as follows.

96.

In R v Bradlaugh¹⁷, Lord Coleridge quoted from Starkie to the effect that intention to insult and mislead was an element of the offence, but proceeded to direct the jury to answer the question whether the words “were not calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live”.

In R v Ramsay and Foote¹⁸, Lord Coleridge again referred to Starkie but directed the jury as follows:

At least for some period in its development, the crime of blasphemous libel was one of strict liability. The absence of the element of intention to produce shock and outrage among believers has been attributed at least in part to matters of procedure prior to the 20th century:

However, whether cases such as Bradlaugh and Ramsay altered this position was unclear prior to Lemon. It may be noted that the view of Kenny, writing in 1922, was that an intention to blaspheme was necessary:

97.

However, more than fifty years later, the House of Lords would hold that intention to publish alone was required. This occured in Lemon²⁰, where a private prosecution was instituted against the defendants. They were charged with the offence of blasphemous libel, the particulars of the offence alleging that they had published an obscene poem and illustration vilifying Christ in His life and crucifixion. The trial judge directed the jury that it was sufficient if the publication bore the meaning alleged, and that it was not necessary to establish any intention beyond the intention to publish matter which in the opinion of the jury was blasphemous. The jury convicted. The Court of Appeal dismissed the appeals, and the House of Lords granted leave to appeal. The discussion of the crime of blasphemous libel by the House of Lords in 1977 provides us with a modern judicial exposition of this form of criminal libel.

In the English Central Criminal Court, the applicants had argued that the offence of blasphemous libel had fallen into desuetude by reason of the lack of prosecutions in respect of that offence since 1922. The trial judge ruled that he could not quash the indictment on this ground. The applicants then abandoned this line of attack in the House of Lords.

The issue on appeal was not whether the words were blasphemous. The sole question for determination was whether the mens rea of the offence was satisfied by proof only of material which in the opinion of the jury was likely to shock and arouse resentment among believing Christians, or whether the prosecution was required to go further and prove that the accused in fact intended to produce that reaction or was reckless in this regard. We will find two main points of disagreement. The first is simply whether the mens rea of the offence was settled prior to the instant case. Four of the Law Lords were of the view that the point was open for decision and that a policy move should now be made. Viscount Dilhorne alone thought the mens rea was definitively settled. The second point is what that mens rea in fact is or should be. Three of the Law Lords held it to be an intention to publish matter which bears a blasphemous meaning. The two dissenting opinions were of the view that intention to blaspheme was a necessary ingredient of the offence.

The Majority Opinions

98.

We observed above that Viscount Dilhorne alone was of the view that the earlier authorities had settled the mental element in this crime, and that this mental element was merely an intention to publish matter which was held by a jury to bear a blasphemous meaning. In this respect he differs not only from the minority judgements but also from the majority; in short, he felt that a mere intention to publish was, not should be, the mens rea of the offence.

He was also of the view that the procedural developments referred to by Lord Diplock bore no relevance to the question on appeal, namely whether mens rea was an element of the offence. Rather these developments affected offences in which a specific intention was already present. Referring to R v Bradlaugh²¹, he noted that while Starkie was quoted by Lord Coleridge CJ to the effect that wilful intention to insult and mislead was the criterion of guilt, a crucial point of note was that the direction merely told the jury to consider whether the matter was blasphemous and whether the accused had published, omitting any reference to intention. This also occurred in R v Ramsay and Foote²², where the direction to the jury again omitted reference to intention.

Viscount Dilhorne referred to a number of cases after Bradlaugh and Ramsey, including R v Aldred²³ and R v Gott²⁴ In the former case, which concerned seditious libel, Coleridge J said to the jury:

In R v Gott, Avory J in his summing up quoted the above passage, and omitted any reference to blasphemous intent.

Viscount Dilhorne concluded:

99.

In a short speech, Lord Russell stated that the authorities were inconclusive–

– and was in favour of proof of the lesser form of intention:

100.

Lord Scarman was also of the view that the mens rea of the offence was a matter open for decision, stating “The history of the law is obscure and confused. The point is, therefore, open for your Lordships' decision as a matter of principle.” It is noteworthy that he did consider the procedural situation to affect the substantive law, and in this regard he is in agreement with the minority. He was inclined to favour the view that the mens rea historically was no more than an intention to publish words found to be blasphemous, but he found force also in the view put forward by Lord Edmund-Davies. We may therefore conclude that Lord Scarman did not consider the law to be definitively settled.

The issue was, he said, “one of legal policy in the society of today”. In this respect, he was influenced by the view that the trend of the law in relation to public order offences was towards the view that “people, who know what they are doing, will be criminally liable if the words they choose to publish are such as to cause grave offence to the religious feelings of some of their fellow-citizens or are such as to tend to deprave and corrupt persons who are likely to read them.” In support of this trend, he referred to the Obscene Publications Act 1959 and the Public Order Act 1936 as amended by the Race Relations Act 1970, in which attention is focused on the nature of the conduct rather than the intention behind it.²⁵

Lord Scarman was further of the opinion that this was in keeping with Articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantee religious freedom and freedom of expression:

Another point of note is Lord Scarman's rationale for the offence. At the outset of his judgment, he stated his faith in the utility of the offence:

Given such a strong defence of the continued existence of the offence, the proposed rationale must be read with interest. We find this later in the speech, after the statement that the offence of blasphemous libel was in harmony with the European Convention:

We may extract from this a general principle, namely, that if there is a right to exercise religion by teaching, practice and observance, there is a related right to be protected from religious insult. It is regrettable that Lord Scarman did not expand on this deduction. It is arguable that it is not self-evident that protection from religious insult flows from a right to practise religion. We will see below that the European Commission also assumed without argument that the right of freedom from insult flowed from the right to practise religion.

Lord Scarman concluded firmly that there was no requirement of an intention to blaspheme: “The character of the words published matters, but not the motive of the author or publisher.”

101.

As we have seen, the decision in Bowman had already settled that the matter had to be published in insulting or scurrilous language. We noted that some doubt was left surrounding the breach of the peace issue, since Lords Parker and Sumner differed on this point. In Lemon, the issue was the mens rea rather than the actus reus of the offence. However, the actus reus of the offence was dealt with by Lord Scarman. He expressly approved the following definition of Stephens, set out at article 214 of the Digest of Criminal Law:

Earlier in his speech, Lord Scarman appears to have put to rest any question that a tendency to provoke an immediate breach of the peace is a requirement of the offence, stating as follows:

The Minority Opinions

102.

Lord Diplock, dissenting, expressed his agreement with the exhaustive historical survey undertaken by Lord Edmund-Davies, but felt bound to observe that by the beginning of the twentieth century the mental element of the crime of blasphemous libel was not settled. He thought that it was clear that the actus reus of the offence had undergone a substantive change between the 17th and end of nineteenth centuries, and this was due in part to changes

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=76

in procedure.²⁶

He thought that the abolition in 1843 of the doctrine of vicarious liability²⁷ and the influence of Starkie opened the way to development of the mental element of the offence. Lord Diplock referred to the passage from Starkie cited in Ramsay v Foote to the effect that a malicious and mischievous intention” was required²⁸, and commented:

Lord Diplock stated that this view of the law continued to be adopted by judges in summing up for criminal prosecutions, and although Avory J in R v Gott, the last reported case, was less specific, he did refer to words being “calculated and intended to insult the feelings and the deepest religious convictions”.

Lord Diplock concluded on the basis of this skeletal review of the authorities that the question was now a policy one before the House of Lords and was open for decision:

Lord Diplock went on to consider the procedural changes which he believed should bear on the decision to require a specific intent. The first of these consisted of the passing of the Criminal Evidence Act 1898. This enabled the accused to testify as a witness in his own defence, in contrast to the previous position where intention could only be inferred from the act and its circumstances, combined with the presumption that a person intends the natural consequences of his own acts.

The second procedural change was a legislative provision on this presumption. Originally the presumption was an inference that the jury was bound to draw unless the accused overcame the burden of showing facts that the law regarded as sufficient to rebut it. There were two views as to what these facts were. The “objective“ school said that the presumption could only be rebutted by proof that he was insane or suffered from some abnormality of mind. The subjective school said the burden merely cast upon the accused the burden of proving that he had not intended the natural consequences of his act, which burden was altered to the lesser one of inducing a doubt in the jury's mind as to his intention. However in DPP v Smith²⁹, the House of Lords had held the objective school to be correct. In section 8 of the Criminal Justice Act 1967 Parliament had reversed this decision, so that the jury would decide whether the accused did intend or foresee the result of his actions by reference to all the evidence.

Lord Diplock accepted that these developments did not directly render intention to blaspheme an element of the crime of blasphemous libel. However, they did at least make the subjective test applicable if intention was an ingredient of the offence. The remaining step was therefore to deduct that intention was an element of the offence. To this effect he stated:

Lord Diplock concluded with the interesting point that in the instant case, the requirement of an intention to blaspheme might well have made no difference to the outcome. Nonetheless, he said, “Mr. Lemon was entitled to his opportunity of sowing the seeds of doubt in the jury's mind.” It may well be that the sense of outrage in cases of blasphemous libel and the fear that the defendant will be acquitted has hampered the development of a requirement of specific intention, and it may also be that such fears are misplaced.

103.

Lord Edmund Davies, also dissenting, was in agreement with the view that the presumption discussed by Lord Diplock was a concept “which goes far to explain the frequent absence of a clear direction regarding the necessity of proving a subjective intention”. He said:

He supported the theory of the three-stage development of the crime, based on an examination of R v Hetherington, the mitigation of the doctrine of vicarious responsibility in the 1843 Act as seen in R v Holbrook, the influence of Starkie, R v Bradlaugh, and R v Ramsay and Foote. He described the

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=79

direction of Avory J in R v Gott as “equivocal as to the necessity for intention”

A summary of the three-stage theory (which we ourselves have adopted in this paper) was admirably expressed in the following passage:

Believing that the House was faced with a choice on the issue of mens rea, Lord Edmund-Davies was in favour of the requirement of specific intention, believing (as we have noted above) that any other decision would be a “retrograde step”.

4. Blasphemy in the Irish context

Actus Reus and Mens Rea

104.

There is no Irish authority on the question of what constitutes the actus reus of the offence in Irish law. As we have seen, the more generally accepted view would be that Bowman, as a decision of the House of Lords prior to 1921, formed part of the law of Ireland in existence at the date of the enactment of the Constitution of the Irish Free State and survived its enactment to the extent that it was not inconsistent with any of its provisions. We are not aware of any provision in that Constitution which would be in potential conflict with Bowman and, accordingly, on this analysis it was part of our law at that time the Constitution of Ireland was enacted in 1937. The

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=80

question then arises as to the effect on the pre-existing law of blasphemy of the Constitution.

105.

Article 40.6.1.i provides that the publication of blasphemous matter is an offence which shall be punishable in accordance with law.

The religious content of the Constitution in general has been altered since 1937. A referendum in 1972 abolished the original Article 44.1.ii. which had provided:

However, the Preamble continues to state, “In the Name of the Most Holy Trinity, from whom is all authority and to Whom, as our final end, all actions, both of men and States must be referred, We the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial...” Moreover, Article 44 1 still provides that:–

106.

Writing of the Constitutional provisions in 1960, in a context prior to the 1972 referendum, Paul O'Higgins wrote:

Mr. O'Higgins proceeded to examine the statutory and case law on blasphemy. He concluded that there was considerable doubt surrounding the meaning of the term “blasphemous” in the Constitution and that:

107.

Notwithstanding the deletion of some provisions in Article 44, the Constitution retains a distinctly Christian flavour and there are judicial dicta to the effect that the State established by the Constitution is Christian and democratic in its nature.³² However, Article 44 prohibits religious discrimination of any kind, so that all religions are guaranteed equality of treatment. Bearing in mind that the Constitution guarantees freedom of conscience and profession of religion (Article 44.2) as well as freedom of speech, it seems most unlikely that the offence of blasphemy envisaged in the Consitution would extend to a denial of the truth of the doctrines of Christianity, as distinct from an insulting and outrageous attack upon such doctrines.

Whether the offence is limited to insults to Christianity is another question. The common law certainly imposed that restriction. However, a court today would have to consider whether an offence so defined would be consistent with the Constitutional guarantee of religious freedom. In this context, the remarks of Lord Scarman in Lemon, which we have already quoted, are again worth noting:

If, however, the constitutional provision is to be construed by reference to the probable intention of the framers of the Constitution, then, having regard to the terms of the preamble and to the fact that the provision originally appeared in an article which in effect confined recognition of religion to the Christian churches in existence in Ireland at the date of its enactment and to the Jewish religion, it would seem likely that it was intended to be confined to religious beliefs in the Judaeo-Christian tradition. (In addition to specified branches of Christianity, recognition was extended to “the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of the Constitution”, but we assume that religions such as Islam, Hinduism or Buddhism were not represented by any organised communities in Ireland at that time). It is true that, as Walsh J pointed out in Quinn's Supermarket v Attorney General,³³ the acknowledgement of the deity contained in article 44.1 is couched in terms which do not confine the benefit of that acknowledgement to members of the Christian faith. However, bearing in mind that the common law in existence at the date of the Constitution was preserved to the extent that it was consistent with the Constitution, it might be difficult to contend that the law of blasphemy was intended to protect any religions other than those in the Judaeo-Christian tradition. Even if it was held to extend to all monotheistic religions, such as Islam, it must be highly doubtful whether it was intended to apply to polytheistic creeds such as Hinduism or to religions which deny the existence of personal deities.

We do not overlook the fact that there are authoritative judicial observations to the effect that the Constitution is not necessarily to be interpreted according to ideas prevalent or accepted at the time of its enactment: in order to ensure that it remains a living document, the courts must take into account the changing views of society on various matters.³⁴ As we have already mentioned, however, the view that the Constitution has a distinctively Christian flavour does not depend solely on the probable intentions of those who framed it or the views of the people at the time it was enacted; it is

also supported by judicial dicta in a number of cases.

As to the mens rea of the offence, the position in Ireland is unsettled. A court might hold that the offence was one of strict liability as did the court in Lemon, or might require an intention to blaspheme.

5. Publication

108.

There is a distinction between blasphemous libel and blasphemy simpliciter. It seems that the crime of blasphemy may be committed, and could always be committed, by oral utterances, gestures, and pictures as well as by means of the written word. For example, the burning of the Bible, or the publication of a caricature may constitute the publication of blasphemous matter. In Lemon, Lord Scarman stated:

Technically our paper deals only with blasphemous libel. Section 15 of the Defamation Act 1961, which deems broadcasts by wireless telegraphy to be libels, does not apply to criminal libels. Accordingly publication in this context appears to include written publication only.

6. Element of Attack

109.

If an Irish court were to draw guidance from the English case law, it would appear that the critical nature of the publication is not conclusive. Rather the determinant factor is the tone of the language. A fundamental attack could be expressed in temperate terms and would not constitute blasphemous libel. Conversely, a flippant comment could cause outrage by its insulting tenor. Lord Scarman stated in Lemon:

7. Breach of the Peace

110.

In England, there appear to be two views of the issues of breach of the peace. The narrow view sees a tendency to breach the peace as an element of the offence, in the sense that the words would be seen as blasphemous if they would be likely to provoke a person into angry reaction. For example, the trial judge in Lemon referred to the tendency to breach the peace as a tendency “to provoke or arouse angry feelings, something which is a possibility, not a probability.” The broader view defines breach of the peace as a disturbance of society and order in a deeper and fundamental way; furthermore, this view would see this tendency as inherent in blasphemous words, rather than an additional criterion to be satisfied. The latter view and its place in modern society was expressed in a celebrated passage in the judgement of Lord Sumner in Bowman v Secular Society Ltd.:

111.

In 1949, Lord Denning pronounced the offence a dead letter because the offence no longer contained the potential to shake the fabric of society. Nonetheless the offence re-surfaced in 1979 in the Lemon case. Since the mens rea, not the actus reus, was under consideration, breach of the peace was not in issue. However, Lord Scarman made two references to it, both

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=85

of which are quoted above.³⁵ It is clear that he believed this aspect of the offence had been eliminated. However, there is no authoritative statement as to the conflict of views on this issue following Bowman. The better view is probably that this element, whether seen as a constitutive part of blasphemous words or a requirement of the offence in the narrower sense of provoking an angry reaction, has disappeared from the offence.

The position in Ireland is unclear, but the more likely view is that both the tendency to and requirement of breach of the peace are not necessary.

The elimination of the breach of the peace issue in either of its senses raises important questions. If the basis for the offence is no longer its threat to the established order, nor its tendency to provoke an angry response, the justification for this restriction of speech must be re-examined. We have already referred to Lord Scarman's deduction from the guarantee of freedom of religion under the Convention of a right to be protected from insults on one's beliefs. In our chapter on the reform of blasphemous libel we shall suggest a number of additional purposes of the offence.

DEFENCES

8. Vicarious Liability

112.

Section 7 of the Defamation Act 1961, which mitigates the common law rule that a master is liable for a libel published by his servant, applies to blasphemous libels.

9. Privileges

(i) Statutory

113.

We have already seen that the two statutory privileges conferred by the Defamation Act 1961 on reports of judicial proceedings (section 18) and reports of proceedings of a number of other bodies (section 24 and Schedule II) apply only to civil proceedings. There are accordingly no statutory privileges in respect of blasphemous libel. In any event, sections 18 and 24 do not permit the publication of blasphemous matter; section 18 states that nothing in the section shall authorise the publication of blasphemous matter, and section 24 states that the privilege is conditional upon the statements being for the public benefit, a condition which would presumably not be satisfied in relation to blasphemous matter.

(ii) Common Law

114.

At common law there are two types of privilege. Qualified privilege attaches to statements made between persons where there is reciprocity or duty or interest. Quite apart from the question of the applicability thereof to criminal proceedings, it is unlikely that this would be of any relevance to blasphemous matter.

Absolute privilege exists in civil proceedings in relation to statements between solicitor and client, statements between officers of State in the performance of official duties, and statements in the course of judicial proceedings. The idea behind the first two categories is to facilitate the performance of duties and would offer no rationale for protecting blasphemous matter. It would not significantly impede the daily performance of duties to avoid insulting another's religion. It is obviously more difficult to avoid defamatory and potentially defamatory words. As to the third category mentioned, it is an interesting question as to whether statements made in the course of judicial proceedings would be privileged. Presumably the repetition of the charge at a trial would not render the judge guilty of blasphemy, nor would the publication of the charge sheet render the police officer guilty of the crime himself. Any other situation would render the crime of blasphemy impossible to try.

(iii) Constitutional

115.

Article 15.12 provides that:

Article 15.13 provides that:

These provisions would appear to admit of no exception and therefore blasphemous matter uttered in the Oireachtas would not seem to be punishable at law.

10. Penalties

116.

“The publication or utterance of blasphemous... matter is an offence which shall be punishable in accordance with law.” Article 40.6.1.i.

Section 13 of the Defamation Act 1961 covers the penalties and procedure in respect of blasphemous matter. The penalty for a conviction on indictment for blasphemous libel is a maximum fine of £500 or imprisonment for a maximum term of 2 years, or both, or penal servitude for a maximum term of 7 years, under section 13 (1). Under section 13(2) the court may make an order for seizure and detention of all copies of the libel in the possession of the person or another person named in evidence on oath. In pursuance of such an order, a member of the Garda Siochana may enter if necessary by force and search buildings for copies of the libel. Provision for returning such copies in the event of a successful appeal of conviction is made in section 13(3).

The Lemon Case in the European Commission³⁶

117.

The publisher and editor of Gay News Ltd. made an application to the European Commission of Human Rights on the basis that their convictions amounted to an unjustified interference with their freedom of expression as guaranteed under Article 10 of the Convention, and an unjustified interference with their freedom of thought and religion as guaranteed under Article 9. In addition to the contention that the restrictions imposed on them were not necessary in a democratic society, the applicants submitted that their convictions had been based on legal principles which did not exist or had not been defined with sufficient clarity at the time of the offence, and that the offence was therefore not “prescribed by law” as required by paragraph (2) of Articles 9 and 10, and also in violation of Article 7 of the Convention. Article 7 states that no one shall by held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

118.

The Commission held the applications inadmissible. With respect to the contention that position of strict liability was not laid down with certainty prior to the trial, the Commission quoted from the judgment of the European Court in Sunday Times v UK³⁷;

Referring to a number of cases in which interpretation of criminal law was under scrutiny, the Commission observed: “What is among other things, prohibited is the application of the penal law in malem partem in relation to facts which the text of the law cannot reasonably extend to .” In an important passage, it continued:

There is clearly a balance to be struck between maintaining the flexibility to meet unforeseen situations and giving the offence sufficient certainty to allow the potential wrongdoer to know what constitutes the offence. The Commission deemed the balance in this case to be in favour of the view that the settling of the mens rea of the offence by the House of Lords had not prejudiced the applicant:

Central to the decision that the clarification of the mens rea element by the House of Lords in the Lemon case constituted clarification only and not retrospective law-making was the fact that no authorities required overruling, that the view of mens rea adopted by the majority was consistent (if not exclusively consistent) with the authorities, and that the interpretation of the authorities as occurred was foreseeable by the applicant if instructed with appropriate legal advice.

119.

The second major ground of attack pursued by the applicants was that the restriction on their freedom of speech did not pursue a legitimate purpose covered by Article 10(2) of the Convention,and that such restriction was not necessary in a democratic society. Since the case had been brought by way of private prosecution, the Commission considered that any justifying ground for the restriction must be sought in the protection of the rights of the private prosecutor. It accepted that the purpose of the law of blasphemous libel at common law, as gleaned from the judgments of the English courts, was “to protect the right of citizens not to be offended in their religious feelings by publications”. Accordingly the restriction was legitimate. The Commission moved on to consider whether it was necessary in a democratic society. In an important passage, the Court set out its view that the existence of the offence of blasphemy does not require justification and that the real question under the Convention is whether the ingredients of that offence as formulated by the courts of a particular country satisfy the Convention requirement of proportionality to the aim pursued. One may note, however, the assumed self-evidence of the need for an offence of blasphemy and the weight attached to the rationale, namely, protection of religious feelings:

120.

The Commission went on to reject the contention that the restriction represented by the crime of blasphemous libel constituted an interference with the applicants' freedom of thought and religion. Finally, the Commission rejected the argument that the applicants had been discriminated against in the exercise of their freedom of expression, holding that there was no indication that they were singled out for restriction on account of their homosexual views, or on account of beliefs not shared by confessing Christians. Nothing suggested that the poem would not have been restricted in the same way if it had been published by persons without homosexual tendencies, and therefore the essence of the restriction was its blasphemous character and not the identity of the person who published it.

121.

In our view, there are two essential points of note to be made concerning this decision. The first is the statement that the rationale of the offence as discerned from the judgments of the English courts is the protection of “the right of citizens not to be offended in their religious feelings by publications.” Leaving aside the question of whether there is such a “right”, we may note the contrast between the present – day rationale offered of the offence and the older views, summed up by Lord Summer in the Bowman case as the prevention of publications which would shake the very fabric of society by attacking religion. There is clearly a shift from the public to the personal; the tendency to corrupt public order may be contrasted with the hurt caused to the feelings of individual citizens.

The second important point of note is the attitude of the European Commission towards the offence of blasphemy itself. Before deciding whether the restriction was proportionate, it should have decided whether the restriction was necessary. In effect, the Commission side-stepped this crucial question by stating:

No one would question this statement. However the prior question it neglected was “whether” it is accepted that religious feelings deserve such protection at the expense of freedom of speech. In general, speech causing hurt feelings does not constitue an offence at common law. It may be that religious feelings are in a special category. It may be that the well-being of society depends upon its religious members being free from religious insult. However, the Commission did the offence little service by failing to support the rationale it offered by analysis.

CHAPTER 5: THE PRESENT LAW OF OBSCENE LIBEL

122.

Unlike blasphemy and sedition, obscenity is not prohibited by the Constitution, although indecency is. We have been able to trace only two Irish prosecutions in respect of the common law offence this century. However the offence of obscene libel undoubtedly continues in existence by virtue of the provisions of the Defamation Act 1961 which prescribes the penalties for the offence.

One of the Irish cases is the recent Fleming case¹, where a prosecution was brought in respect of obscene graffiti scribbled in public places around Ireland by the defendant. There were two charges of defamatory libel and one charge of publishing an obscene libel of the victim and her husband. The defendant pleaded guilty. It may well be that, although the charge was for obscene libel, the case was in reality one of defamatory libel of an obscene nature. Many defamatory statements reflecting on the sexuality or sexual habits of the victim may well be obscene, and it is the obscenity which lowers the victim's reputation and renders the statement defamatory. Since the libel here was aimed at individuals it more closely resembled a defamatory libel than the traditional type of obscene libel, which consists of the publication of obscene matter not affecting individuals in a normal defamatory context. The other Irish case is Attorney General v Simpson,² involving a more typical set of facts, and which will be discussed in detail below.

(1) Obscene matter

(a) The “corrupt and deprave” test

123.

Obscenity in the English language means that which is repugnant to the senses, offensive, foul, repulsive or loathsome. Pornography is by contrast used to refer to sexual lewdness or erotic behaviour. Obscenity therefore, may or may not be pornographic, and vice versa. It is in the law only that the word “obscenity” of itself has sexual connotations.

124.

It appears that the suppression of obscene material in England is now achieved through use of the legislative provisions of the Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964. When the Williams Committee on Obscenity issued its report in 1979³, it made the Obscene Publications Act 1959 the core of its review. Since this legislation incorporates the test of obscenity laid down at common law, we will make reference to recent English decisions in proceedings brought under legislative provisions to the extent that such decisions reflect a modern approach to the definition of obscene matter.

125.

The publication of an obscene libel divorced from a political or religious context was first held to be a common law misdemeanour in Curll's case⁴. Some precedent therefor was found in Sedley's⁵ case, but the court had to overrule Read's⁶ case. The offence was little prosecuted throughout the 18th century. It was not until the 19th century, in particular due to the formation of the Society for the Prevention of Vice in 1802, that prosecutions for obscene libels were undertaken with vigour.

Until the later half of the 19th century it appears that no test of obscenity was formulated and that recognition of obscenity was done on an ad hoc basis. In 1868, a test was formulated which was to survive, particularly in legislative form, until the present day. This was the statement in Hicklin⁷ by Cockburn CJ:

Hicklin arose out of a prosecution under the 1857 Obscene Publications Act. The test became the standard test in proceedings for the offence of obscene libel and for forfeiture under that Act.

126.

Let us pause for a moment to consider the basis of the crime. In its barest meaning of repulsiveness and loathsomeness, obscenity is a subjective concept. For obviously that which disgusts one person leaves a second indifferent and is enjoyed by a third. At this level, whether something is obscene is a matter of taste and opinion. The literal meaning of obscenity is inherently a subjective concept. The “corrupt and deprave” test shifts the centre of gravity away from taste (is this offensive or repulsive?) and on to morality (does this corrupt?). Instead of asking whether the matter is distasteful, one has to enter the speculative realm of deciding whether the viewing of such matter has negative effects in the minds of some members of society. Whether certain matter is commendable or corrupting, or indeed whether certain states of mind are good or bad, is essentially a moral question. In the case of Lady Chatterley's Lover in 1961⁸. the judge used the dictionary to supply the meaning of “corrupt” as “to render unsound or rotten, to destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to defile”. In R v Calder & Boyars⁹, the trial judge said: “The essence of the matter is moral corruption.” If excessive judicial intervention in matters of morality is a matter of concern today, it was less so in the nineteenth century. Furthermore it may well have been easier to identify a unified morality than it is today, and was certainly easier than identifying a unified “taste” in publications. The necessarily subjective basis of the crime of obscene libel and the moral questions it raises will be returned to later.

It may also be noted that the test as defined by Lord Cockburn introduced a causal notion into the concept of obscenity. The matter must be shown to contain a tendency to have a deleterious effect upon other individuals. Therefore in theory, at least, the real test of obscene matter was whether it could potentially corrupt the morals of an individual, as opposed to whether it offended prevailing standards of what is acceptable. It seems, however, that the latter interpretation is what was used in practice. This is perhaps explained on the basis that if one is of the view that something is morally wrong, one may automatically assume that the viewing or reading of such matter tends to corrupt, without requiring a strict causal link. In other words a perception that something depraves or corrupts appears to have been preferred to proof that something actually has that effect. Proof that something actually depraves or corrupts would be a complex matter; it would presumably require (a) expert psychological evidence that the viewing of certain matter leads to a favouring of, or indifference to that matter, which

is a factual matter, and (2) proof that favouring or indifference to that matter is morally corrupt, which is a moral issue.

127.

Evidence that the “corrupt and deprave” test was loosely employed by judges without undue deference to the causal aspect of that test is to be found in the following statement by Kenny, to the effect that precedent in this area is of little value:

If matter depraved and corrupted. one would not expect this tendency to lessen or increase with the passage of time. One may therefore suspect that the test employed is not the tendency to deprave or corrupt, but whether the matter would be opposed by the prevalent morality, which would, by contrast, be expected to change with time.¹¹

In another way, the “corrupt and deprave” test has proved rather ambiguous, since matter may well be obscene without tending to corrupt or deprave, and indeed it has been argued that the more obscene the publication, the more it revolts and therefore the less the tendency to deprave or corrupt¹². Such arguments merely emphasise that the definitions of obscenity inside and outside the law have little to do with each other.

128.

Lord Cockburn's “corrupt and deprave” test was examined by an Irish District Justice in some detail in 1959. The decision in Attorney-General v Simpson¹³ arose out of a prosecution charging the accused with showing “for gain an indecent and profane performance”. This is an interesting charge in itself since at common law the offence was publication of obscene matter simpliciter, and it was in legislation only that the “for gain” aspect was introduced. The performance giving rise to the charge was of a Tennessee

Williams play, The Rose Tattoo, at the Pike Theatre, Herbert Lane, Dublin. The judgment was given at the preliminary investigation stage in the District Court and is notable for this feature alone.

129.

The first point of note is that the strict boundaries of terminology were blurred. The accused was charged on three counts of showing for gain an “indecent and profane” performance. District Justice O Floinn said that strictly speaking the charges were more in the nature of indecent exhibition than obscenity, but proceeded to quote from Russell the following passages which equated the two offences:

The District Justice therefore granted Counsel's request that the words “and obscene” be placed after the word “indecent” in two of the counts, stating “it might well be held that profanity and indecency and obscenity are related offences”. Whatever about the relation between obscenity and indecency, profanity only occasionally intersects with these two concepts and such intersection is not a logical necessity. The District Justice equated the concepts of obscenity and indecency again when he referred to the Constitutional guarantee of free speech and its prohibition on indecency, concluding:

The District Justice went on to say that in the absence of Irish authority, the appropriate law was the English common law and the decisions concerning obscenity under the Obscene Publications Act 1857. He accepted Hicklin as the case laying down the central test of obscenity, but said the law as evidenced in a flurry of English cases in 1954 was “to say the least, extremely vague” and from some of the decisions it was “difficult to believe they were both operating within the same judicial system”.

The District Justice thought the central issue before him was whether an intention to publish obscene matter was necessary. However, he did consider the nature of blasphemous matter in some detail. Referring to R v Secker and Warburg¹⁵, the District Justice expressly approved some statements of Stable J in that case as to the nature of obscene matter. Unfortunately it is not clear to which passages of the judgment of Stable J he was referring, but he quoted the following:

The District Justice went on to discuss a number of American materials. He referred to a number of United States Supreme Court decisions, Butler v State of Michigan¹⁷, Alberts v California¹⁸ and Roth v US¹⁹, where Brennan J stated that the proper standard for defining obscenity was “whether to the average person applying contemporary community standards the dominant theme of the material taken as a whole appeals to the prurient interest”. This test was

re-iterated by the same judge in Kingsley Book Inc v Brown²⁰. The District Justice noted that the words were the same as in the American Law Institute's Model Penal Code, Tentative Draft No.6. The Code defined “prurient interest” as “a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candour in description or representation in such matters”. The Code also stated: “As an independent goal of penal legislation, repression of sexual thoughts and desires is hard to support. Thoughts and desires not manifested in overt anti-social behaviour are generally regarded as the exclusive concern of the individual and his spiritual advisers.” The Code also said: “We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising and art, and because regulation of thought or desire, unconnected with overt misbehaviour, raise the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which tends to corrupt or debase. If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual behaviour follows from contact with obscenity. Evidence of such consequence is lacking...”

The District Justice went on to deal with the mens rea in the American cases, but as to the actus reus of the offence in the American materials he merely concluded that “prurient interest does not mean material having a tendency to excite lustful thoughts”. However he did not express a view either way on the correctness of the American views examined, and the tests he actually employed tend to contradict the American opinions.

130.

What test was used by the District Justice in Simpson? Unfortunately he expressed quite a number, which were not necessarily compatible with each other and which were certainly incompatible with the American materials he had cited. After considering the evidence, he stated that his duty was to decide whether there was a prima facie case, and used the unlikely test “Is the play a filthy play? That is the question.” Then he summarised what the play in his view portrayed and said: “Does the play as described in the evidence tend to corrupt and deprave? Does it lead to certain lascivious thoughts and lustful desires which will affect character and action? Is the play a cloak for something sinister, and to repeat the words of Mr. Justice Stable, 'is it camouflage to render the crudity, the sex of the book sufficiently wrapped up to pass the critical standards of the Director of Public

Prosecutions?'”²¹ Later, he said the question was whether the accused “was exploiting a filthy business and showing a complete disregard of the primary requirements of decency?”, a test which he immediately followed with the question “Did the accused, Alan Simpson, intend to deprave and corrupt other persons?”

131.

As this is the only case dealing with the nature of obscene matter for the purposes of the common law offence of obscene libel in Ireland this century, these indications of the nature of obscene matter are far from satisfactory. The interesting developments in the American courts were discussed but apparently not approved. Although the American Law Institute specifically stated that the “appeal to prurient interest” test was a departure from (i) the common law “corrupt and deprave” test, and (ii) the test of whether the matter tended to arouse sexual impulses and desires, the District Justice expressly retained the “corrupt and deprave” test and approved of Stable J's test of whether the matter tended to lead to certain lascivious thoughts and lustful desires. Moreover by using the word “filthy”, he seemed to imply that depiction of sexually explicit matter was inherently disgusting. Neither is the test, “was the play a filthy one?” particularly useful. Apart from the non-judicial nature of the term “filthy”, it does not give any guidance as to the content of that term. There was no analysis, either approving or disapproving, of the American view that a tendency to corrupt or deprave, or a tendency to lead to sexual thoughts and desires, was not a legitimate basis of the offence. Furthermore, there was no advertence to the fact that the “corrupt and deprave” test and the “tendency to encourage sexual thoughts and desire” test are not synonymous, unless one assumes that the existence of sexual thoughts and desires in a person's mind indicates that the person's mind is in a state of corruption. For “tendency to corrupt and deprave” could also mean the encouragement of the commission of harmful acts, and could further distinguish between harmful in the sense of moral harm and of harmful in the sense of criminal harm. No such explanation was forthcoming. Finally the equation of indecency and obscenity with profanity is probably misconceived. Although profane matter may sometimes be obscene or indecent, it is not necessarily so.

132.

In fairness to the District Justice, it must be said that the decision was given in an atmosphere of severe disapproval, not only of depiction of sexually explicit matter but of anything which hinted at sexual matters. The actual

decision in the case was that the matter was not obscene. From a modern viewpoint, it is difficult to see, on the basis of the evidence given, how the matter could possibly have been perceived to be obscene.²² Indeed it is a noteworthy feature of the case that the District Justice did not have a copy of the play before him and instead had to rely on the evidence of witnesses. In this context, the outcome of the case was in fact satisfactory. However, as a guideline for future cases, it is sadly lacking in content. It maintains the “corrupt and deprave” test; it equates corruption and depravity with harbouring sexual thoughts and impulses; it associates obscenity firmly with sexuality; and associates publications dealing with sexuality with “filth”.

(b) The Potential Audience: “Those into whose hands this sort of publication is likely to fall”

133.

Whom does the jury have to consider when deciding on the issue of corruption?

134.

It is not clear, however, that this view expressed by Stable J in the Martin Secker case is representative of the orthodox English judicial view. According to the original definition, obscene matter must tend to corrupt “those whose minds are open to immoral influences and into whose hands a publication of this sort may fall.” This is essentially a paternalistic definition, assuming that some groups in society are entitled to make moral decisions for others. To borrow from the internal logic of the law of obscenity, we may presume that if there are people who are more susceptible to “immoral influences”, they are presumably not separated by those who are not so susceptible by age alone.

In Calder & Boyars²⁴, Salmon LJ said, in answer to the question 'Who are the persons likely to read the book':

Furthermore, two Law Lords stated in 1972 that the article is not obscene only if the number of readers likely to be corrupted is “so small as to be negligible”.²⁵

“In each case, “said Lord Wilberforce in DPP v Jordan²⁶, “it has to be decided who these readers are and so evidence is usually given as to the type of shop or place where the material is, and as to the type of customer who goes there... When the class of likely reader has been ascertained, it is for the jury to say whether the tendency of the material is such as to deprave or corrupt them...”

135.

However, Irish law may be more in keeping with the view expressed in the Martin Secker case. District Justice O Floinn addressed this issue in Attorney General v Simpson²⁷. He quoted from the judgement of Brennan J in Kingsley Book Inc v Brown as follows:

The District Justice did not return to this issue. However, a passage earlier in his judgment suggests that the persons to be considered are the average or aggregate views of the community:

It should, of course, be borne in mind that the careful and learned judgment of the District Justice was never considered at any higher judicial level and that this may weaken its status as an authority.

(c) Obscenity Not Requiring Sexual Connotations

136.

In modern times, English law may have come a full circle in that the test of depraving and corrupting may lead to matter without sexual content being obscene, thus bringing the subject matter of the offence back to its

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=103

original meaning (although ironically, Cockburn CJ did not intend the words “deprave and corrupt” to be understood other than in a sexual context). This has occurred in the case law on obscenity under English legislation, as opposed to the common law crime of obscene libel, where the test is identical. In Calder (John) Publications Ltd v Powell²⁸, a book was held obscene on the ground that it “highlighted, as it were, the favourable effects of drug-taking, and, so far from condemning it, advocated it, and that there was a real danger that those into whose hands the book came might be tempted at any rate to experiment with drugs and get the favourable sensations highlighted by the book.” In Skirving, the subject matter of the prosecution was a pamphlet entitled “Attention Coke Lovers – Freebasing, the Greatest Thing Since Sex”, which was concerned with the merits of various methods of ingesting cocaine.

The problem with extending the ambit of matter which “tends to deprave or corrupt” to include matters of a non-sexual nature is one of where to draw the line. As Smith and Hogan observe,²⁹

It is important to note that by depravity is meant a purely mental state, not resulting in external action of any kind. In DPP v Whyte³⁰, Lord Wilberforce said:

Lord Pearson stated:

Lord Cross said:

(d) Admissibility of Expert Evidence

137.

There is some controversy as to the nature of expert evidence which may be admitted in obscenity cases. Prior to Skirving³¹, which we will discuss shortly, there was only one case in which expert evidence had been held admissible. This was DPP v A&BC Chewing Gum Ltd.³², where the evidence was introduced to explain the likely effect of violent picture cards on children. This was held admissible on the basis that the likely effect on a child was a matter outside the ordinary juror's range of opinion, that is to say, that the average juror would not be able to estimate the possible damage on the audience in question, which consisted of a special class (children), as distinct from being unable to gauge the effect of violent pictures. In two subsequent cases, Lord Wilberforce accepted obiter that it might be possible to hold admissible certain expert evidence, again on the basis that the particular audience would be outside the range of the ordinary juror.³³ The rule and its exception was stated by Lord Wilberforce in a later case as follows:³⁴

It was therefore generally agreed that expert evidence was admissible only if the material in question was available to a special class of recipient of the jury did not have first-hand knowledge.³⁵

138.

A case which has attracted some criticism is Skirving,³⁶ in which it was held that expert evidence on the medical effects of cocaine was admissible as outside the experience of the average juror. Arguably, this was incorrect because in the previous cases the lack of experience related to a particular audience, not, as here, the particular activities depicted or described in the subject-matter. One writer has argued that, on principle, it was incorrect because it contained the risk of misleading the jury into thinking that the effects of cocaine were on trial, whereas what was on trial was whether a book describing the effects of cocaine corrupted the minds of its readers.³⁷ This argument was in fact raised in the case itself and Lord Lane CJ disposed of it as follows;

He continued, in the following important passage:

Therefore the expert evidence told the jury what the physical effects of the activity advocated were, not whether the physical effects of the activity should be deemed corrupt. Arguably this is a valid distinction on which it is not pedantic to insist. It so happens that most people are familiar with the negative physical effects of ingesting cocaine. But suppose the drug had been a new one, never heard of before, and one which is beneficial to health ? Would it not seem bizarre to ask the jury to decide whether a pamphlet advocating the use of the drug corrupted and deprived, which in turn was entwined with the question of whether the taking of the drug corrupted and depraved, when the jury had no knowledge whatsoever of the drug or its physical effects? Surely there are sequential steps to be taken. First, the jury must have an idea what the activity depicted involves. Second, it must decide whether the activity corrupts and depraves. Third, it must decide whether the viewing of such activity corrupts and depraves. In this light it may be seen that while the knowledge supplied about the first enquiry is purely factual, the answers to the second and third questions are judgmental. Arguably, the decision in Skirving was correct in allowing expert evidence in to establish the factual first enquiry. We would therefore disagree with Mr Stone who expressed the view that on principle the decision was wrong because the jury “needed no help from expert witnesses as to the effect of taking cocaine, or as to what the moral attitude should be”. We believe that he makes the incorrect assumption that the court equated the physical effects of taking cocaine with the separate moral questions of whether taking cocaine or reading a book advocating the taking of cocaine is corrupting. We are of the view that the court correctly saw that to judge on the effect of a book, one must be able to judge on the activity, and that to judge on the activity, one must know what the activity involves.

Neither will the expert evidence on the physical effects of such activity pre-determine the answer to the judgmental questions. For example, if a prosecution were to be brought in respect of matter which advocated tobacco smoking, expert evidence would show that the physical effects of the activity were extremely negative, yet it would be most difficult to conceive of a jury thinking that tobacco smoking is an immoral activity, or finding that the advocacy of tobacco smoking is obscene because it depraves and corrupts peoples' minds.

We will return later to the point of the extent of interlocking between the two judgmental questions, namely:

(2) Mens Rea

139.

In R v Hicklin³⁸, the requisite mens rea was held to be knowingly to publish matter with a tendency to corrupt and deprave. It was irrelevant that the accused had motives other than an intention to publish obscene matter. Cockburn CJ put it thus:

Subsequent cases have upheld this reasoning. In Barraclough³⁹, the court held that it was unnecessary that the indictment contain an allegation of intent on the ground that intent was implicit in the publication of obscene matter. In De Montalk⁴⁰ an appeal failed where the appellant argued that there had been insufficient direction on intent. Crown counsel submitted that intention was to be inferred from the act of publication, and the court dismissed the appeal approving Barraclough. In R v Calder & Boyers,⁴¹ which concerned the publication of the book Last Exit to Brooklyn, Salmon LJ said the following in respect of intent and obscene matter:

However, in that case, although the defendant conceded that intent was irrelevant, he argued that the tendency of the matter was not towards corruption and depraving because of the way in which it was presented. In the words of Salmon LJ,

Since the appellants therefore had strong arguments to show that the matter did not have an obscene tendency, the summing up of the trial judge was flawed in failing to mention these matters.

Therefore, we may conclude that although a defendant may not escape liability by showing that he did not intend the matter to be obscene which is found by a jury to be so, he may do so by showing that matter which would undoubtedly be obscene at first sight was not so by reason of the way in which he presented it i.e. in a condemnatory fashion. If we take “a lack of intent to be obscene” to include an intent to condemn the matter depicted, then the only difference between a lack of intent to be obscene and a lack of tendency to be obscene is that in the second case the defendant effectively got his message across in the book, film, picture or other publication, whereas in the first he did not. This is a rather fine distinction. However, it is in line with the general view that persons are responsible for their words and that they cannot be heard to say that they are being penalised for a bad choice of words.

In summary, in English law, it is not necessary for the prosecution to show that the defendant intended the matter to be obscene. If the defendant has published matter which is found by a jury to bear an obscene meaning, he will be guilty of the offence. It is no defence to show a lack of intent to be obscene. However, if the presentation of the matter conveys a condemnation of the matter, this may negative any supposed tendency to corrupt and deprave.

140.

Irish law does appear, however, to require a mental element beyond intent to publish. If the Rose Tatoo⁴² case is unsatisfactory as to the definition of obscene matter, it is laudable in this respect, although the means of arriving at the conclusion that intent was necessary are not entirely satisfactory. District Justice O Floinn began by quoting St. Augustine and the maxim “ream linguam non facit nisi mens rea” which became “et actus reus non facit nisi mens sit rea”. He said:

From this general background the District Justice deduced a requirement of intention in the instant case:

He found “additional support” in the old form of drafting which alleged intent to corrupt public morals. He then said that this form of drafting ceased to be necessary when in the cases of Barraclough and Montalk the court laid down that intent must be proved whether it is pleaded or omitted from the charge. This must surely be erroneous. To deduce intent from the old practice of drafting overlooks the fact that procedures were quite different in earlier times and that words were used more loosely, and many offences which do not require intent featured phrases such as “wickedly and maliciously” and other colourful phrases. Indeed, as Holdsworth has commented:

Moreover, the District Justice's interpretation of Barraclough and Montalk is at odds with orthodox interpretation.

141.

Moving from 1906 back to 1865, the District Justice proceeded to examine Hicklin's case, perceiving three possible interpretations:

He then cited R v Reiter as implicit authority for the view that the element of intent is required. Finally he quoted a passage from R v Secker and Warburg where Stable J said it was to be considered whether “in this the author was pursuing an honest purpose and an honest trend of thought”. District Justice O Floinn concluded “Either this is a misdirection or the third view of Hicklin's case represents the true state of the law”.

He left the issue of intention temporarily and looked at the American authorities, most of which concerned the nature of obscene matter, but in the course of which he quoted Chief Justice Warren to the effect that

and

and

The District Justice said:

and later:

The more likely view is that preponderance of English authority including and following Hicklin perceived the offence of obscene libel as one of strict liability. To this extent the District Justice's interpretation of the English

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=111

authorities may be criticised. However, he expressly adopted the American statements to the effect that mens rea was necessary. Therefore even if the deductions from authority are erroneous, the decision will still stand as laying down that mens rea is necessary. This, of course, is subject to the qualification already mentioned, that the decision has never been reviewed at any higher level. It may therefore be concluded that an intention to “debauch or corrupt” is an ingredient of the offence of obscene libel in Irish law.

(3) Defences

142.

There is no defence at common law that the matter in its entirety has educational, scientific, literary or other merit.

By contrast, the English Obscene Publications Act 1959 provides in section 4 a defence known in shorthand as the defence of “public good” providing that a person shall not be convicted it is proved that the publication of the article is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. Section 4(2) allows expert evidence to be admitted to establish or negative the above.

143.

It is no defence at common law to show that the defendant had not examined the article and had no reasonable cause to suspect that it was such that his publication of it would make him liable to conviction.

By contrast, the above matters, provided both conditions are satisfied, constitute a defence under section 2(5) of the English 1959 Act.

However, section 7 of our Defamation Act 1961 uses the word “libel” without qualification and therefore seems to apply to this case of libel. It therefore provides a defence if the defendant can rebut a presumption of publication by showing that the publication was made without his authority, consent or knowledge and that the publication did not arise from want of due care or caution on his part.

(4) Procedural

144.

At first sight, section 9 of the Defamation Act 1961 applies to obscene libel since it too refers to “libel” without qualification, and provides that a Justice of the District Court may receive, inter alia, evidence as to the publication being for public benefit, and dismiss the case if he feels there is a strong presumption that the jury would acquit. However, this is presumably a reference to the defence of justification in which public benefit must be shown, and since there is no fully-fledged defence at common law of “public

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=112

benefit” nor of justification in respect of obscene libel, we presume that this section does not apply to it.

We assume that section 10 of the Act, which allows for summary conviction for libel applies equally to obscene libel since the word “libel” is again used without qualification.

Similarly, it would appear that section 8 requires the consent of a High Court judge sitting in camera to allow the institution of criminal proceedings against the proprietor, editor or publisher of a newspaper in respect of an obscene libel contained therein.

(5) Penalty

145.

Section 13 of the 1961 Act contains the penalty for obscene libel, which is identical to that for blasphemous libel, namely a fine not exceeding £500 or imprisonment for a term not exceeding two years, or to both, or to penal servitude for a term not exceeding 7 years.

CHAPTER 6: DISCUSSION AND REFORM OF DEFAMATORY LIBEL

A. Comparison with other Countries

England

146.

The English Law Commission has considered the crime of defamatory libel in a Working Paper¹ and Report², both entitled Criminal Libel. Having considered the arguments for and against the retention of the offence in some form, the Commission recommended the abolition of the offence and its replacement by a narrower statutory offence, which would consist of the communication to a third party of information seriously defamatory of another knowing or believing that the information was both seriously defamatory and false. All elements of the offence would have to be proved by the prosecution including the falsity and seriously defamatory nature of the information “Seriously defamatory” was defined as matter which would be “likely seriously to damage his reputation in the estimation of reasonable people generally.” The defences of absolute and qualified privilege would be identical to those obtaining in civil proceedings. Finally, the consent of the Attorney –General would have to be obtained before a prosecution in respect of the proposed offence could be instituted, irrespective of the identity of the defendant.

Canada

147.

The English law of defamatory libel at common law was incorporated into the English Draft Criminal Code, which was adopted almost entirely and placed in the first Canadian Criminal Code of 1892. It repealed the previous criminal libel statute. The ingredients of the offence now in the existing Criminal Code have not changed substantially since 1892.

Part VI of the Code contains the provisions on defamatory libel and creates three offences as follows:

It will be remembered that the 1843 Act contained a provision on extortion by libel which was not re-enacted in the Irish Defamation Act 1961.

148.

Section 262(1) of the Canadian Criminal Code defines defamatory libel as “matter published without lawful justification or excuse, that is likely to injure the reputation of a person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person at or concerning whom it is published.” We may therefore note that the definition has retained the “insult” element of the offence which constituted the offence in the early English common law, but probably no longer, since the tendency to provoke breaches of the peace may be said to have disappeared and this rationale for this type of libel. Sub-section (2) provides that a defamatory libel may expressed either directly or by insinuation, (a) in words legibly marked upon any substance, or (b) by any object signifying a defamatory libel otherwise than by words. This would implicitly exclude oral communication. However, many provincial defamation statutes deem defamatory broadcasts to be libels.

It may be noted that section 262(2) above makes provision for defamatory meaning by innuendo. Section 513(2) of the Code provides that a count for publishing a defamatory libel can specify the sense of the libel by assertion to show how the libel was written in that sense. This differs from the common law position under which the person defamed had to insert in an introductory averment the circumstances which give rise to the innuendo in addition to pleading the innuendo itself. An example of the Code procedure in action on this point is found in R v Molleur (Nol)³ where the charge contained a libel by innuendo-that the words “protector of childless widows” meant seducer of childless widows, and the Crown proved at trial the extrinsic circumstances which caused persons to understand words in that sense. Lemieux J in the Court of King's Bench, Quebec, said:

Section 263 defines publication to include exhibition in public, causing the libel to be read or seen, or showing it or delivering it, with intent that it should be read or seen by the person whom it defames or any other person. Therefore the common law rule that publication to the victim alone is sufficient has been retained.

Due to the common law rule that publication occurs every time and every place the libel is communicated, an exemption is contained in section 434(2) of the Code, so that a person charged with publishing a libel in a newspaper is to be tried either in the province where he resides or in the province where the newspaper is printed.

Mens Rea

149.

The Code does not appear to require intention to defame, referring ambiguously to matter “designed” to expose a person to hatred, ridicule or contempt. In R v Straight,⁴ the accused published an article which satirized a local magistrate by awarding him a “Pontius Pilate Certificate of Justice Award”. Morrow J held that intention to insult the judge was not required, because the word intent did not appear in the definition of the offence, stating:

The Criminal Code provides defences for innocent disseminators depending on whether they sell newspapers or other items. A person who sells a newspaper containing a libel is deemed not to have published it unless he knows the libel is contained in it or knows that libels are habitually contained in it-section 267(3). A person who sells a book, magazine, pamphlet or other thing which is not a newspaper but contains a libel is deemed not to have published the libel if at the time of sale he does not know the libel was contained in it-section 268(1). These provisions represent a substantial departure from the common law position.

Sections 267 deals with vicarious liability and newspaper proprietors. A newspaper proprietor is deemed guilty of publishing a libel unless he proves the libel was inserted into the newspaper without his knowledge and without negligence on his part. This is the position in Ireland under section 7 of our Defamation Act 1961. The Code goes on to say that the giving of general

authority to manage the newspaper to a person as editor or otherwise by the newspaper proprietor is deemed not to be negligence, unless it is proved that (a) he intended the general authority to include the authority to insert a libel, or (b) he continued to confer general authority after he knew that a libel had been inserted in his newspaper. These represent more detailed provisions on vicarious liability than the Irish provision.

Defences

150.

The Code incorporates as a defence a number of occasions of absolute privilege – section 7(3)⁶, sections 269(a) and (b) and 270(a) and (b). These include statements made in proceedings of a court exercising judicial authority, in inquiries made under the authority of a statute⁷ in a petition to Parliament or a Legislature, and in a paper published by order or under the authority of Parliament or a Legislature.

The Code incorporates the defence of qualified privilege, which the original drafters believed to be declaratory of the common law. In fact the conditions and instances of the defence are defined in such a way as to make the defence considerably wider than at common law, particularly because the occasion does not require reciprocity of duty and interest. Instead a unilateral duty or interest is sufficient. The occasions are:

The defence of qualified privilege in the Code is conditional upon four matters:

The Code also protect four types of reports: reports of parliamentary proceedings, public court proceedings, papers published by order or under authority of parliament and public meetings.

Section 275 provides that no person shall be deemed to publish a defamatory libel where he proves on the balance of probabilities that the publication is for public benefit and the defamatory matter is true. This is equivalent to section 6 of our Defamation Act 1961, the balance of probabilities merely referring to the proof required of the defendant to complete the defence.

Section 273 provides a defence foreign to both Irish and English law, namely where the defendant publishes matter that, on reasonable grounds, he believed to be true and which was relevant to a subject of public interest, the public discussion of which is for the public benefit. The defence failed in the Georgia Straight¹¹ cast, but succeeded in Lord v Ryan¹². In that case, an article alleged that the provincial government had rented machines from a company which was linked to the Mafia. The decision indicates that the reporter who wrote the article had reasonable grounds to believe in the truth of his allegations, and that the defamatory matter was published in the public interest.

Section 274 incorporates the defence of fair comment on a matter of public interest, so that a person is protected if he publishes comments (a) on the public conduct of a person who takes part in public affairs, or (b) on a published book or other literary production, any composition or work of art or performance or other communication made to the public on the subject, if the comments are confined to criticism.

151.

Of interest also are the Code provisions on costs incurred by a defamatory libel prosecution. Section 656 provides that a person in whose favour judgment is given in such proceedings is entitled to a court order against the opposite party awarding him or her reasonable costs. Under section 657 if the costs are not paid forthwith, the party in whose favour judgment is given may enter judgment for the amount of the costs by filing the order in the superior court of the province where the trial was held and the judgment is enforceable against the opposite party as if it were a judgment rendered there against him in civil proceedings. The person who initiates prosecution is liable to pay these costs event if the case is subsequently conducted by the Crown.

152.

The Law Reform Commission of Canada produced a Report devoted

to the crime of defamatory libel in 1984. In its chapter on the defects of the present law, it mentioned many of the defects outlined by us earlier in relation to our law. Of particular interest to us, because of our constitutional guarantee of free speech and because Ireland is a party to the European Convention on Human Rights and Fundamental Freedoms, was the consideration of the crime of libel by that Commission in light of the guarantee of “thought, belief, opinion and expression” in the Canadian Charter of Rights and Freedoms. This is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Law Reform Commission of Canada noted that section 11(d) of the Charter provides that any person charged with an offence has the right to be presumed innocent until proved guilty according to law, in a fair and public hearing by an independent and impartial tribunal, subject to reasonable limits. It thought that this might render unconstitutional some reverse onus provisions in the Code on relating to the offence of defamatory libel, such as the defence for newspaper proprietors and the defence of justification. Also subsection 15(1) of the Charter which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination might render unconstitutional the different provisions applying different laws to newspaper proprietors, newspaper sellers, sellers of other defamatory matter, and their employers. The Commission concluded that a constitutional challenge to the present Code offence might well succeed.

These arguments might similarly be applicable in this jurisdiction. The special position of newspapers in certain matters may be unconstitutionally discriminatory, and the burdens in proceedings for defamatory libel may well be in breach of general principles of criminal liability and concepts of a fair trial.

Australia

Queensland, Western Australia, Tasmania

153.

In these jurisdictions, where the Criminal Code is operative, defamatory libel is a crime which is in essence the unlawful publication of defamatory matter concerning another. The penalties are a maximum prison sentence of 1 year and a fine of $600, or where there is knowledge of falsity, prison with hard labour for 2 years and a fine of $11,000. The various Code defences are applicable.¹³

Australian Capital Territory

154.

The Defamation Act (New South Wales) 1901 applies. The two essential provision are as follows:

These are the same as the provisions in our Defamation Act 1961 which provide the penalties for the greater and lesser offences of maliciously publishing a defamatory libel with and without knowledge of falsity respectively.

New South Wales

155.

The law of defamation was reviewed by the New South Wales Law Reform Commission in 1971.¹⁴ It was in favour of retaining the offence in respect of serious cases, and recommended the creation of a new statutory offence covering both written and spoken defamation.

Provisions on criminal libel are now contained in Part V of the Defamation Act 1974(NSW). Section 49 abolished the common law misdemeanour of defamatory libel (criminal libel defined to exclude seditious, blasphemous and obscene libels). The offence is now contained in section 50 (1). It is committed where a person, without lawful excuse, publishes matter defamatory of another living person (a) with intent to cause serious harm to any person (whether the person defamed or not) and (b) where it is probable that the publication of the defamatory matter shall cause serious harm to any person (whether the person defamed or not) with knowledge of that probability. The penalty is imprisonment for a term not exceeding three years or a fine of such amount as the Court may impose, or both.

This definition does not incorporate the defendant's state of mind on the issue of falsity. It must be shown that the defendant knew that the matter would probably cause serious harm. However, it would seem open to convict a defendant if he knew the matter would probably cause serious harm but honestly and reasonably believed (for example) that the matter was true. It may be noted that the definition restricts the common law position as regards who may be defamed; only defamation of the living is punishable. One may

also note that the serious harm caused need not be caused to the victim of the defamation, but rather to any person but consequential on the publication. Section 51 provides that a lawful excuse in the preceding section is where: “if that other person brought proceedings against the accused for damage for defamation the accused would be entitled to succeed in those proceedings.” The effect of this is to incorporate all the defences of the civil law of defamation into the crime contained in section 50(1).

Sub-section (3) of section 51 provides that at trial it is not necessary for the prosecution to negative any thing which would amount to lawful excuse unless an issue respecting that thing is raised by evidence at the trial.

South Australia, Victoria, Northern Territory

156.

The position is similar to Ireland. The common law continues to apply and is supplemented by legislative provisions modelled on the English 19th century legislative provisions.

The year 1977 saw the Report of the Criminal Law and Penal Reform Committee of South Australia. It considered the retention of the offence unnecessary in view of two factors: (a) the fall in the number of criminal prosecutions, and (b) the adequacy of the civil action in defamation to restrain tendencies to endanger the public peace. The Committee described criminal libel to include seditious and defamatory libels as well as libels affecting the administration of justice, a somewhat unusual classification. Out of this mixed bag of offences it recommended the retention only of libels in relation to affairs of State and the administration of justice.

In 1979, the Australian Law Reform Commission published its Report on Unfair Publication, which dealt with the issue of privacy as well as defamation. It recommended the retention of criminal libel, provided it was restricted. It modelled its proposed offence on that of the New South Wales 1974 provision, with one important difference: the mental element was to be that the defendant either (1) knew the matter to be false, or (2) was recklessly indifferent to truth or falsity.

New Zealand

157.

Part IX of the Crimes Act 1961 provides for “crimes against reputation”. Section 211 deals with the offence of criminal libel while section 216 deals with criminal slander. In Irish law there is no crime of slander.

A criminal libel is matter published, without lawful justification or excuse, either designed to insult any person or likely to injure his reputation by

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=121

bringing him into hatred, ridicule, or contempt or by injuring him in his profession, office, business, trade, or occupation. “Person” is defined in section 2 of the Act to include a public body, society, or company, or any group of persons. The offence may therefore be constituted where there is insult alone.

Publication of a libel is (a) the exhibition thereof in public or (b) causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any person other than the person defamed.

Section 212 contains a provision which resembles a limited version of the defence of qualified privilege in the Canadian Code. It states that it is not a crime to publish defamatory matter on the invitation or challenge of the person defamed thereby, or if it is necessary to refute some allegation made by the last-mentioned person concerning the alleged offender. This is conditional upon the author (i) believing the statement to be true, (ii) that the matter is relevant, and (iii) that the publication does not in manner and extent exceed what is reasonably sufficient for the occasion.

Section 214 contains provisions on justification and includes the requirement of proving truth and public benefit. However, a significant difference is that the accused may fulfil the defence by showing that he believed on reasonable grounds that the matter was true and that it was for public benefit. Sub-section (5) provides that on conviction following a plea of justification, the court in pronouncing sentence may consider whether his guilt is aggravated or mitigated by the plea.

All prosecutions require the consent of a Supreme Court judge.

The offence of criminal slander is committed where a person utters words of defamatory character (a) within the hearing of more than twelve persons at a meeting to which the public are invited or have access, or within the hearing of more than twelve persons in any place to which the public have or are permitted to have access, or (b) in the course of a broadcast by means of radio or television.

It has been held that the mens rea is not an element of the offence, merely a likelihood of injury to reputation.¹⁵

In 1977 the New Zealand Committee on Defamation recommended the

abolition of the offence of criminal libel. It considered the civil action to be adequate, and thought that the functions of libel in the criminal law were catered for by other statutory provisions.

The 1989 Crimes Bill (New Zealand) makes no provision for the offence of defamatory libel.

United States

158.

Since New York Times v Sullivan¹⁶ and Garrison v Louisiana¹⁷, the offence of criminal libel is subject to the Constitutional standards of the First Amendment. The breach of the peace element has been ruled obsolete.¹⁸ The law is built on a public figure/private figure distinction, discussed at length in our Consultation Paper on the Civil Law of Defamation.¹⁹