The Gazette 1992

GAZETTE

SEPTEMBER 1992

observe that in view of the fact that there have been no prosecutions against Irish newspapers in this century, they doubt it could be realistically urged that the retention

In their report, the Commissioners have decided against widening the definition of defamatory matter to include statements concerning a deceased person. Their decision was influenced by the criticism of their proposal in the Consultation Paper on the Civil Law of Defamation that a remedy should be available for defamation of the dead. Having proposed in that paper that there should be a civil remedy but that it should be limited to a declaration and/or injunction, the Commissioners say that "in this difficult and controversial area, this is as far as alterations in the law should go at the present time". In general, the Commissioners have not departed from their provisional recommendations as published in the consultation paper. They recommend the abolition without replacement of the common law offence of seditious libel. Blasphemous libel should be replaced by a new offence entitled "publication of blasphemous matter". Blasphemous matter would be defined as matter the effect of which is likely to cause outrage to a substantial number of adherents to any religion by virtue of its insulting content concerning matters held sacred by that religion. They also suggest the abolition without replacement of the common law offence of obscene libel. The Commissioners further recommend that an examination should be undertaken of legislation on obscene and indecent matters and of the various schemes of censorship in order to determine whether they are consistent with the requirements of the Constitution as to freedom of speech. This succinct report (20 pages) is written with the admirable clarity that is the hallmark of all Law Reform Commission publications.

A Short History of Western Legal Theory By JM Kelly, [Oxford: Clarendon Press, 1992, xvi + 466 pp, IR£16.50, paperback]. John Kelly was a unique person and an accomplished scholar. Mr Justice Ronan Keane, in a perceptive and warm tribute to the author in the foreword to the book, praises John Kelly's contribution to the establishment of Irish legal studies. In the world of affairs, the judge notes that the author brought to Irish political life "a gift for oratory, coruscating wit and sharpness of debate which was almost without equal since the foundation of the State." The judge writes about John Kelly's "endless relish for the absurdity and oddness of life itself." He or she who can speak of the absurdity and oddness of life and still remain an optimist has achieved a deep and enviable maturity. In his essay, "Tradition and the Individual Talent," TS Eliot advises the apprentice poet to discipline his talent by steeping himself in the tradition of English poetry and thereby to develop " t he historical sense" - "a perception not only of the pastness of the past, but of its presence." John Kelly in his book is introducing lawyers to the pastness of the past thereby assisting us in our understanding of the present law. The author is introducing us to jurisprudence, or legal theory, in order to ensure in his own words, "a humane foundation to what will be [the law student's] life profession." The book is divided into ten chapters dealing with certain legal themes from the world of Homer to that of Gorbachev. Themes considered by the author include the basis of the state and of government, the basis of the validity of law, natural law, natural rights, the theory of property, the rule of law, equality before the law, criminal law and punishment and related themes. There are "Kellyesque" expressions that will delight the reader. For example, at page 308 the author (Continued on page 280)

of the crime would be unduly onerous to the fourth estate.

The Commission has also stood by its provisional recommendation that prosecutions for criminal libel should be instituted only with the consent of the DPP and that the offence should be triable either summarily or on indictment, at the option of the Director, thus rejecting criticism from one Senior Counsel that such a provision would deprive an accused person of the right to trial by jury on a major charge of criminal defamation. It is recommended that a defendant should be found guilty of the offence of defamatory libel only where the defamatory matter is false and where the defendant knows that it is defamatory and either knows it to be false or is recklessly indifferent to the question of its truth or falsity. As the offence would be confined to the publication of false or defamatory statements of fact there would be no requirement for a defence of fair comment or comment based on fact. With regard to privilege, the Commissioners recommend that those instances of absolute privilege prescribed by the Constitution should remain. They also recommend that the law should be clarified to allow absolute privilege in respect of judicial proceedings and fair and accurate reports thereof, but absolute privilege should not be retained in respect of communications between members of the executive, husband and wife and solicitor and client. This latter recommendation will hardly be welcomed by some hard- pressed members of the Cabinet nor is it likely to be welcomed by the largest wing of the legal profession.

Barbara Cahalane

270