R v Wells Street Stipendiary Magistrate, ex parte Deakin
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Viscount Dilhorne,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 10 April 1979 |
| Judgment citation (vLex) | [1979] UKHL J0410-1 |
| Date | 10 April 1979 |
| Court | House of Lords |
[1979] UKHL J0410-1
House of Lords
Lord Diplock
Viscount Dilhorne
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Scarman
Upon Report from the Appellate Committee to whom was referred the Cause Gleaves against Deakin and others, That the Committee had heard Counsel for the Appellants on Monday the 26th day of February last upon the Petition and Appeal of Michael Deakin, of 29/30 Old Burlington Street London W1X 1LB, John Willis, of 29/30 Old Burlington Street London W1X 1LB, Quartet Books Limited, of 27 Goodge Street London W1 and Futura Publications Limited, of Warner Road London SE15 praying that the matter of the Orders set forth in the Schedule thereto, namely two Orders of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 18th day of April 1978 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Orders might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and the Respondent to the said Appeal having been present but not called upon; and due consideration had this day of what was offered in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 18th day of April 1978 complained of in the said Appeal be, and the same are hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.
My Lords,
The speeches of my noble and learned friends Viscount Dilhorne and Lord Scarman, which I have had the opportunity of reading in advance, contain references to all the earlier authorities which it is necessary to cite for the purposes of this appeal. I agree with the conclusions that they draw from those authorities and for the reasons that they give I too would dismiss the appeal.
The examination of the legal characteristics of the criminal offence of defamatory libel as it survives today, which has been rendered necessary in order to dispose of this appeal, has left me with the conviction that this particular offence has retained anomalies which involve serious departures from accepted principles upon which the modern criminal law of England is based and are difficult to reconcile with international obligations which this country has undertaken by becoming a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The original justification for the emergence of the common law offence of defamatory libel in a more primitive age was the prevention of disorder—to use the words of Article 10.2 of the European Convention, which describes the various grounds on which public authority may interfere to restrict or penalise freedom of expression. The reason for creating the offence was to provide the victim with the means of securing the punishment of his defamer by peaceful process of the law instead of resorting to personal violence to obtain revenge. But risk of provoking breaches of the peace has ceased to be an essential element in the criminal offence of defamatory libel; and the civil action for damages for libel and an injunction provides protection for the reputation of the private citizen without necessity for any interference by public authority with the alleged defamer's right to freedom of expression.
My Lords, under Article 10.2 of the European Convention, the exercise of the right of freedom of expression may be subjected to restrictions or penalties by a contracting state, only to the extent that those restrictions or penalties are necessary in a democratic society for the protection of what (apart from the reputation of individuals and the protection of information received in confidence) may generically be described as the public interest. In contrast to this the truth of the defamatory statement is not in itself a defence to a charge of defamatory libel under our criminal law; so here is a restriction on the freedom to impart information which states that are parties to the Convention have expressly undertaken to secure to everyone within their jurisdiction. No onus lies upon the prosecution to show that the defamatory matter was of a kind that it is necessary in a democratic society to suppress or penalise in order to protect the public interest. On the contrary, even though no public interest can be shown to be injuriously affected by imparting to others accurate information about seriously discreditable conduct of an individual, the publisher of the information must be convicted unless he himself can prove to the satisfaction of a jury that the publication of it was for the public benefit.
This is to turn Article 10 of the Convention on its head. Under our criminal law a person's freedom of expression, wherever it involves exposing seriously discreditable conduct of others, is to be repressed by public authority unless he can convince a jury ex post facto that the particular exercise of the freedom was for the public benefit; whereas article 10 requires that freedom of expression shall be untrammelled by public authority except where its interference to repress a particular exercise of the freedom is necessary for the protection of the public interest.
My Lords, public authority, represented in criminal matters by the Director of Public Prosecutions and the police, has had minimal recourse in recent years to prosecutions for the offence of defamatory libel; and I have no reason to doubt that in each of the prosecutions which its representatives have brought it could be shown not only that the defamatory matter was false, but also that by reason of its nature or the circumstances in which it was published, repression of the publication by penal sanctions was necessary in the public interest. But private prosecutions for this offence are still available and in the last two years there are two instances in which private prosecutions (of which this is the second) have been instituted by individuals who have been defamed. As private prosecutors they are not under any duty to consider whether the prosecution is necessary in the public interest as distinct from serving their own private interests. It is this that has brought into the light of day the present sorry state of the law of criminal libel in this country.
My Lords, the law of defamation, civil as well as criminal, has proved an intractable subject for radical reform. There is, however, one relatively simple step that could be taken which would at least avoid the risk of our failing to comply with our international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. That step is to require the consent of the Attorney General to be obtained for the institution of any prosecution for criminal libel. In deciding whether to grant his consent in the particular case, the Attorney General could then consider whether the prosecution was necessary on any of the grounds specified in Article 10.2 of the Convention and unless satisfied that it was, he should refuse his consent. For this additional reason I support the recommendation of my noble and learned friends Viscount Dilhorne and Lord Scarman which is to the same effect.
My Lords,
Informations were laid by the respondent alleging that the appellants had maliciously published defamatory libels in a book called 'Johnny Go Home' alleging
(1) that he had been guilty of gross sexual offences with minors
(2) and of fraud on the Department of Health and Social Security
(3) that he had dealt in stolen property
(4) that he belonged to a Fascist movement
(5) that he had stolen or used stolen food
(6) that he had been guilty of theft of electricity in the use of telephones
(7) that he had ordered an attack on a boy called McPhee; and
(8) that he was a "monster" like the Krays and Richardson
contrary to section 5 of the Libel Act 1843.
The book contained many statements highly defamatory of Mr. Gleaves but it was the publication of these allegations which he contended amounted to the publication of a criminal libel.
At the magistrates' court the magistrate, Mrs. Audrey Frisby, allowed Mr. Gleaves to be cross-examined as to his convictions which were as follows:—
(1) 31st July 1959 at Hampshire Assizes convicted of
(1) Attempted buggery
(2) Indecent Assault
(3) Indecent Assault
and sentenced to 3 years imprisonment on (1) and 18 months imprisonment on (2) and (3), concurrent
(2) 12th May 1971 at West London Magistrates Court convicted of indecent assault on a boy of 13 and sentenced to 6 months imprisonment suspended for three years
(3) 30th April 1975 at the Central Criminal Court convicted of
(1) buggery with a male person under 21
(2) buggery with a male person under 21
and on the 1st May 1975 sentenced to 18 months imprisonment in respect of each offence, the sentences to be consecutive and to follow on a sentence of 12 months imprisonment passed on him on the same day
(4) 1st May 1975 at the Central Criminal Court convicted of
(1) assault occasioning actual bodily harm
(2) assault occasioning actual bodily harm
and sentenced to be imprisoned for 6 months in respect of each offence, the sentences to be consecutive
(5) 2nd June 1975 at Snaresbrook...
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