PART II.-OF CRIMINAL PROCEEDINGS. ART. 1.-Libel a crime. The publication of a libel is a misdemeanor punishable by fine and imprisonment (a), for which proceedings may (subject to Art. 4, infra) be taken by way of indictment or information. NOTE 1.-Libel as the subject of criminal proceedings is either (1) defamatory, or (2) blasphemous, seditious, or obscene. Whatever amounts to a libel in a civil action (see p. 3, supra) will be held a defamatory libel on a criminal trial. Further it is a defamatory libel and a crime, though not actionable (b), to write and publish words injurious to the reputation of any deceased person (c), or of any collection of individuals, (a) See 6 & 7 Vict. c. 96, ss. 4, 5, p. 230, infra. (6) Owing to there being no proper plaintiff. Rex v. Darby (1687), 3 Mod. 139. 126; per contra Reg. v. The dicta in Reg. v. 12 Q. B. D. 320, only (c) Rex v. Topham (1791), 4 T. R. Ensor (1887), 3 Times L. R. 366. Labouchere (Vallombrosa's case) (1884), affect the remedy by way of information. without referring to any individual in particular(d), provided that in each case such words tend to provoke a breach of the peace. Thus, it has been held a libel in criminal law to write and publish of "certain Jews lately arrived from Portugal and living near Broad Street," that they had murdered a Jewish woman and her child, because the child was begotten by a Christian, in consequence of which publication, as sworn to on the affidavits, many Jews in various parts of the city had been threatened with death, and had been maltreated (e). Similarly, it was held that criminal proceedings would lie for imputing that a certain nunnery was a brothel of prostitution, although no reference was made to any special individual (ƒ), and in another case a criminal information was granted against the proprietor and publisher of a newspaper for publishing observations defamatory of the clergy of a particular diocese, though no mention was made of any particular clergyman (g), for criminal proceedings will sometimes lie where an action will not. So, too, in some cases there may be a good defence to an action, on the ground that the words complained of are true, but this is no answer to criminal proceedings: there the defendant must be prepared to go further, and prove not only that the words com (d) Rex v. Osborn (1732), W. Kelynge, 230; 2 Barnard. 138, 166; Rex v. Williams (1822), 2 B. & Ald. 595; Rex v. Gathercole (1838), 2 Lewin, C. C. 237. (e) Rex v. Gathercole, supra. But plained of are true, but also that their publication is for the public benefit. Moreover, no action will lie where the words complained of have been communicated only to the plaintiff himself, it being necessary, as has already been pointed out (h), to prove that the defendant has communicated the words to some third person. in criminal proceedings it is sufficient that the libel has been published to the plaintiff himself, the foundation of such proceedings being the natural tendency of such words to provoke a breach of the peace. And this is, of course, the foundation of the old maxim, "The greater the truth the greater the libel," which only applies to criminal proceedings. In a civil action the truth of the words complained of is a complete defence (i). As to blasphemous, seditious, and obscene libels, see p. 178, infra. On the other hand, slander, as such, is never a crime, though the words complained of may come within the criminal law as being blasphemous, seditious, or obscene (k), or as being a solicitation to commit a crime (7), or a contempt of Court (m). NOTE 2.-The following is a brief outline of the different steps to be taken in a prosecution for libel, according as the proceedings are by way of indictment or information. (h) See p. 14, supra. (i) See p. 72, supra. (k) See p. 178, infra. (1) R. v. Higgins (1801), 2 East, 5. (m) Archbold's Criminal Evidence, 20th ed., p. 954. I. Where the proceedings are by way of indictment. Generally speaking the first step taken by the prosecutor is to charge the defendant before a stipendiary magistrate or two justices of the peace, but whenever the libel has been published in a newspaper, and it is desired to prosecute the proprietor publisher editor or other person responsible for such publication, the prosecutor must first obtain the leave of a judge at chambers under sect. 8 of the Law of Libel Amendment Act (m). On a charge of libel before justices, the defendant usually appears in answer to a summons; but if he does not do so the Court may, if satisfied that the summons has been duly served upon him, proceed to hear the case although he is not present, or—the course generally adopted in practice -issue a warrant for his apprehension, under 11 & 12 Vict. c. 42, s. 1. At common law, upon the hearing there are only two questions for the consideration of the Court-"first, whether the matter complained of was libellous, and secondly, whether the publication of it was brought home to the accused" (n). After hearing the complainant's case the Court will inquire of the accused whether he wishes to call any witnesses (o), and evidence on his behalf will then be admissible to prove that the words complained of (m) See Art. 4, infra, p. 182, and note thereto. (n) Per Cockburn, C. J., in Reg. v. Carden (1879), 5 Q. B. D. 6, 7; 49 L. J. M. C. 1; 41 L. T. 504. (o) 30 & 31 Vict. c. 35, s. 3. are no libel (p); that they do not relate to the complainant (q); that they were not published by the accused (r); that their publication is absolutely privileged (s); or a fair and bonâ fide comment on a matter of public interest (t). The Court will then either dismiss the case, or, if satisfied that there are reasonable grounds for doing so, will commit the accused for trial. So much, then, for the jurisdiction at common law. Next, as to the alterations which have been introduced by statute. In the first place, by sect. 4 of the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60), "a Court of summary jurisdiction, upon the hearing of a charge against a proprietor publisher or editor or any person responsible for the publication of a newspaper, for a libel published therein, may receive evidence as to the publication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate and published without malice, and as to any matter which under this or any other Act or otherwise might be given in evidence by way of defence by the person charged on his trial on indictment, and the Court, if of opinion after hearing such evidence that there is a strong or probable presump (p) See pp. 169, 170, supra. |