The Gazette 1991

NOVEMBER 1991

GAZETTE

Criminal Libel Re-defined Consultation paper on the Crime of Libel. Law Reform Commission, September, 1991. 194pp £10.00 The crime of libel is an interesting one "because it is at once of high and trivial importance" according to the Law Reform Commission. Of high importance because Ireland has a Constitutional guarantee of free speech and the common law rules represent stringent restrict- ions upon the individual's right of expression. Trivial, because in modern society it has assumed a very minor role and the offence in any form is rarely prosecuted. Bearing the latter fact in mind, the Commissioners declare that they have attempted to maintain a common sense approach. Their suggestions, nonetheless, amount to a proposed radical overhaul of the law on criminal libel. The paper deals with the historical development of the crime of libel and then goes on to consider the present law governing each of the branches of the crime of libel i.e. seditious libel, blasphemous libel, obscene libel and defamatory libel. The Commissioners provisionally recommend the abolition, without replacement, of the common law offence of seditious libel taking the view that it is incompatible with the Constitutional guarantees of free speech. Likewise, in view of the unsatisfactory state of the com- mon law and in view of the specific legislative provisions which punish publication of obscene matter, the abolition of the common law offence of obscene libel is also recommended. Turning to blasphemous libel the Commission says "It is absurd that an offence exists in Irish law . . . which is totally uncertain as to both its actus reus and mens rea. It may well be unconstitutional to punish a person in respect of a crime which the State has failed to define, not only in matters of detail, but in borad outline." The Commission

A restatement of the sub judice rule - favoured shield of politicians and bane of journalists - is among the many proposals for reform set out by the Commissioners in the second half of the paper. The rule, they suggest, should apply to any publication which creates a risk, other than a remote one, that the course of justice in the proceedings in question will be seriously im- peded or prejudiced. It would not be a defence to sub judice contempt that the offending material was published incidentally to a discussion of public affairs. A defence of necessity to publish, presumably for the greater com- mon good, would be available. Scant comfort for news editors who will hardly be dispensing with the services of their professional advisors on foot of these proposals! The Commission has included contempt in relation to tribunals in its remit. The consultation paper considers whether there should be a greater equivalence between contempt of court and similar conduct in regard to a tribunal and concludes that it is in society's interest to ensure that the pro- ceedings of tribunals are not interfered with. Therefore, a tenta- tive recommendation is made that legislation should provide that cer- tain conduct would be an offence such as improperly attempting to - or influencing - a tribunal in the determination of any issue. Attempts to - or actual - bribing, intimidating or taking reprisals against a tribunal witness would also become offences. The proposals, which are wide- ranging, include suggestions that the law of contempt in the face of the court should be retained, the retention of imprison- ment as a sanction in civil proceedings, abolition of the rule that scandalous abuse of the judiciary constitutes contempt by scandalising, and the retention of journalists' obligation to give evidence and answer questions.

suggests a new offence of "publi- cation of blasphemous matter" defined as "matter the effect of which is likely to cause outrage to a substantial number of the ad- herents to a religion by reason of its insulting content concerning matters held sacred by that religion." Religion for the purposes of the definition would include Christian and non-Christian religions. The retention of the offence of defamatory libel in its present form is strongly opposed by the Com- mission, but the Commission draws a tentative conclusion in favour of retaining the offence in a more restricted form, being of the view that the Fleming case demon- strated that its abolition would deprive the criminal law of a valuable weapon. In narrowing the offence the provisional recom- mendations are that prosecutions in respect of defamatory libel should be instituted only with the consent of the DPP, on whose option the offence would be triable either summarily or on indictment. The Commission proposes a more stringent burden of proof on the prosecution to show that the matter was actually false as well as defamatory and to show the requisite mens rea. Copies of the consultation papers on Contempt of Court, Civil Law of Defamation, and the Crime of Libel may be obtained from the Law Reform Commission, Ardilaun Centre, 11 St. Stephen's Green, Dublin 2. Barbara Cahalane

YOUR WILL can help Adreen Cheshire Home Shillelagh For donations and further particulars contact: Jarlath Tunney or Margaret Warren Ardeen, Shillelagh, Co. Wicklow. Tal : (055) 29143 Fax : (055) 29170

321