The Gazette 1991

GAZETTE

NOVEMBER 1991

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.

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

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

Margaret Warren

Ardeen, Shillelagh, Co. Wicklow.

Tal : (055) 29143 Fax : (055) 29170

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