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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
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.
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.
Barbara Cahalane
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)
270