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Published online by Cambridge University Press: 16 January 2009
In April 1976 Sir James Goldsmith launched a prosecution for defamatory libel against Private Eye. This unusual legal event received wide publicity, and has already prompted various others to litigate libel in the criminal courts—among them Colin Jordan, and Roger Gleaves, the involuntary star of the television documentary “Johnny Go Home.” As a result of these prosecutions, lawyers have now woken up to the fact that any writing which would ground a civil action for libel is automatically a criminal libel as well. Thus anyone who has written anything defamatory of another is liable to be prosecuted on indictment, with the risk of up to two years' imprisonment and an unlimited fine.
1 (1936) 25 Cr.App.R. 168; [1936] 1 All E.R. 384.
2 [1977] Crim.L.R. 383, 465.
3 Sun Life Assurance Co. of Canada v. British International Press, The Times, 25 March 1933.Google Scholar
4 Sun Life Assurance Co. of Canada v. W. H. Smith & Son (1934) 150 L.T. 211.Google Scholar
5 One Harpell, editor of the Toronto Journal of Commerce, who had called the president of the Sun Life of Canada “the world's greatest crook.” Though convicted, the jury recommended him to mercy; he was sentenced to three months' imprisonment. See The Times, 28 December 1932.Google Scholar
6 See The Times, 27 April-5 May 1934.Google Scholar
7 The Times, 1 May 1935.Google Scholar
8 The Times, 12 November 1935.Google Scholar
9 Haldeman was British manager of the Mutual Life Assurance Co. of New York. In 1906 the Armstrong Commission in the U.S.A. revealed appalling corruption and mismanagement at the head office. Haldeman left the firm and joined the North British Assurance Co. in disgust, whereupon many Mutual Life policyholders surrendered their policies and reinsured with Haldeman's new employer. The Mutual Life brought a much publicised lawsuit against Haldeman and the North British, and resoundingly lost: The Times, 18 May 1907.Google Scholar
10 Sir Patrick Hastings told the court this at the start of the trial. He said that the company would have prosecuted Wicks itself if it had been able in law to do so. This was a curious statement; nothing prevents a company from prosecuting for libel or anything else, and the right to prosecute for a libel is not restricted to the person defamed.
11 The Bow Street magistrate was reluctant to commit because the libel had been published in Northampton where Chapman received the letter, and the magistrate thought he had no jurisdiction. He was persuaded to commit only after Hastings had cited Burdett (1820) 4 B. & Ald. 95, which ruled that a libel is triable either where it is received or at the place from which it is sent. In the course of the proceedings the magistrate remarked “The Chief Magistrate in this case was very much pressed to give process.”
12 Perhaps Hastings, who knew Wicks had not entered a plea of justification, wanted to avoid giving Wicks an opening to assert the truth of the libel under cover of cross-examination. Gurney swore the libel was false in the course of the committal proceedings.
13 (1936) 25 Cr.App.R. 168; [1936] 1 All E.R. 384.
14 The Case de Libellis Famosis, 5 Co.Rep. 125a.
15 In 1850 Thackeray published a reference to a real murderess called Catharine Hayes; an admirer of another Catharine Hayes who was not a murderess attempted to flog him in public. In 1879 Levy-Lawson, the editor of the Daily Telegraph, publicly beat Henry Labouchere, the editor of Truth, as a prelude to prosecuting him for criminal libel. The flogging of another, less famous, journalist is described by Montagu Williams in Later Leaves (London, 1891).
16 Hunt (1824) 2 St.Tr.(n.s.) 69; Mylius, note 37 infra.
17 Hart & White (1808) 30 St.Tr. 1131; cf. Woodhead, The Times, 15 May 1934Google Scholar, where Finlay J. sentenced a man to six months' imprisonment for a libel on Eve and Bennett JJ.
18 Masters (1889) 6 T.L.R. 44; Russell (1905) 93 L.T. 407Google Scholar; Trueman (1913) 9 Cr.App.R. 20, 45.Google Scholar
19 Mason, infra, note 38; cf. McMahon (1933) 24 Cr.App.R. 95.Google Scholar
20 Vint (1799) 27 St.Tr. 627; Peltier (1803) 28 St.Tr. 530.
21 Jennour (1741) 7 Mod. 400.
22 Sumner & Hillard (1665) 1 Sid. 270 (libel upon a barrister; this was the case which decided that defamatory libel continued to be a criminal offence after the abolition of the Star Chamber). Lord Abingdon (1794) 1 Esp. 226 (libel upon an attorney).
23 Williams (1822) 1 St.Tr.(n.s.) 1291.
24 Gathercole (1838) 2 Lew. 237.
25 In a Parliamentary debate in 1818, Brougham, Henry said “This allegation of a breach of the peace is merely a fiction of the law, merely a reason for giving the court jurisdiction”: Parl. Deb. (1st series), Vol. 34, p. 387.Google Scholar Lord Campbell told the House of Lords Select Committee on the Law of Defamation and Libel, 1843, that criminal libel existed “with a view to vindicating the character of the party injured, or of having revenge upon the libeller, and not in the remotest degree with any view to the protection of the public peace”: Minutes of Evidence, p. 177.
26 Brooke (1856) 7 Cox 251; Palmer, The Times, 23 September 1887; (both decisions of the Recorder of London at the Central Criminal Court).
27 See Spencer, The Press and the Reform of Criminal Libel, in Reshaping the Criminal Law (essays in honour of Glanville Williams) (1978), pp. 266, 280.
28 Labouchere (1884) 12 Q.B.D. 320; Adams (1886) 16 Cox 544; Wood v. Cox (1888) 4 T.L.R. 651; cf. the remarks of Lord Alverstone C.J. in an unreported case, quoted in Fraser on Libel and Slander (7th ed. 1936), p. 210.Google Scholar
29 Unreported, Newcastle Assizes October 28 1887. Lord Coleridge directed an acquittal in a prosecution brought by traders over an allegation of a conspiracy to raise prices. His direction was printed almost in full in the Newcastle Daily Chronicle, 29 October 1887.
30 (1889) 86 L.T.J. 300; 33 S.J. 250.
31 Archbold, Criminal Pleading and Practice, 29th ed. (1934), p. 1266Google Scholar; Fraser's Law of Libel and Slander, 6th ed. (1925), p. 323Google Scholar; Bower, Spencer, Actionable Defamation, 2nd ed. (1923), p. 425Google Scholar; on the other hand, Odgers, Libel and Slander, 6th ed. (1929), p. 368, says that the threat to the peace is presumed, and Gatley on Libel and Slander, 2nd ed. (1924), pp. 9–10Google Scholar suggests that the absence of a threat to the peace merely means that a prosecution should not be brought.
32 Collins (1839) 9 C. & P. 456; Burns (1886) 16 Cox 355; Gott (1922) 16 Cr.App.R. 87.Google Scholar
33 In the Law Society's Gazette solicitors frequently advertise that they are involved in litigation with a named adversary, and invite anyone else so involved to pool information and resources. How many solicitors replying to such an advertisement would imagine for one second that they could be sued in defamation?
34 Stuart v. Bell [1891] 2 Q.B. 341, 350 per Lindley L.J.; Watt v. Longsdon [1930] 1 K.B. 130.Google Scholar
35 See Gatley on Libel and Slander, 7th ed. (1974)Google Scholar, § 479 for the many authorities.
36 Of course, this is quite contrary to the accepted rules for the construction of penal statutes. In order to protect the accused, the courts have upon occasion required the prosecutor to prove the existence of the fact as well as the accused's belief in its existence even where the word used was “believing”: Haughton v. Smith [1975]Google Scholar A.C. 476. In Mabin (1901) 20 N.Z.L.R. 451Google Scholar, the New Zealand Court of Appeal said that the falsity of the libel must be proved where the defendant is charged with publishing it knowing it to be false.
37 The Times, 2 February 1911.Google Scholar
38 Mason and Utopia Press Ltd., The Times, 14 December 1932.
39 Quinn (1932) 23 Cr.App.R. 196.
40 This sort of prosecution behaviour was roundly condemned in Burton (1941) 28 Cr.App.R. 89Google Scholar, and again in Van Pelz (1942) 29 Cr.App.R. 10.Google Scholar The terms in which it was there condemned suggest that it was a practice which had long been disapproved of; cf. Campbell (1911) 6 Cr.App.R. 131.Google Scholar Modern authorities are Robinson (1969) 53 Cr.App.R. 314Google Scholar, and Huchison (1972) 56 Cr.App.R. 307.Google Scholar
41 Thus Wicks tells me that he would have welcomed the chance to defend himself against a libel action or prosecution brought by Dr. Burgin. Having discovered that Burgin, whilst Parliamentary Under-secretary to the Board of Trade, was continuing his practice as a City solicitor, Wicks conceived it his mission to expose him. With that in mind he had been trying to provoke him into suing or prosecuting.
42 Archbold, Criminal Pleading and Practice, 39th ed., § 442.
43 Birkett, Six Great Advocates, p. 23.
44 Indeed, Gurney does appear to have been rather a vindictive person. According to the Evening News, 19 June 1964Google Scholar, he incurred the wrath of Rees J. by an unsuccessful attempt to divorce for her cruelty his wife whom he had deserted 28 years earlier. Rees J. said the proceedings stemmed solely from his desire to prove that 28 years earlier he had been right and she had been wrong.
45 See Hansard, 20 July 1939; Parl. Deb., Vol. 350, p. 745.Google Scholar
46 Wicks v. D.P.P. [1947]Google Scholar A.C. 362.