Corway v Independent Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 27
• Court: High Court
• Date: 01 January 1997

[1996] IEHC 27

THE HIGH COURT

1996 - 26 MCA

CORWAY v. INDEPENDENT NEWSPAPERS (IRL) LTD

IN THE MATTER OF THE DEFAMATION ACT, 1961

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 8 OF THE SAID ACT

BETWEEN

JOHN CORWAY

APPLICANT

AND

INDEPENDENT NEWSPAPERS(IRELAND) LIMITED, INDEPENDENTNEWSPAPERS PLC. AND AENGUS FANNING

RESPONDENTS

Citations:

DEFAMATION ACT 1961 S8

NEWSPAPER LIBEL & REGISTRATION ACT 1881 S3

GALLAGHER, IN RE UNREP FINLAY 3.7.78

HILLIARD V PENFIELD ENTERPRISES LTD 1990 1 IR 138

CONSTITUTION ART 40.6.1.i

BOWMAN V SECULAR SOCIETY LTD 1917 AC 406

R V LEMON 1979 1 AER 898

LAW REFORM COMMISSION CONSULTATION PAPER ON DEFAMATION (1991)

Synopsis:

DEFAMATION

Blasphemous libel - leave to bring criminal prosecution - s.8 Defamation Act 1961 considered - relevant factors - actus reus of blasphemy - whether clear prima facie case made out - whether public interest required prosecution - Held: Leave refused - (High Court - Geoghegan J. - 23/10/1996)- [1999] 4 IR 484 - [1997] 1 ILRM 432

|Corway v. Independent Newspapers & anor.|

1 Judgment of Mr. Justice Geoghegandelivered the 23rd day of October, 1996.

2 Shortly after the recent Divorce Referendum and in its issue of the 26th November, 1995, the Sunday Independent included an article by Dr. Conor Cruise O'Brien entitled "Catholic in their bones" and dealing with what he perceived as the diminished influence of the Catholic Church in Ireland in the context of the result of the Referendum. The article was introduced by a blurb in the followingterms:-

"Even with a Hierarchy struggling to cope with an erosion in their influence, the Referendum campaign was a defining moment that showed many of us havedifficulty in voting against church teaching backed up by more than a century of inherited authority, argues Dr. Conor CruiseO'Brien".

3 To the side of the blurb and sharing one of the columns containing Dr. O'Brien's article was a cartoon. The cartoon consisted of a stout comic figure of a priest in an old-fashioned surplice with lace on the sleeves and at the bottom and a stole holding what was clearly the host in his right hand and a chalice in his left hand. To the left of him were three caricatured ministers, namely, from left to right, Mr. De Rossa, Mr. Ruairi Quinn and the Taoiseach, Mr. Bruton, each with a hand up indicating rejection of the host and chalice being offered by the priest. Immediately above the cartoon were the words "Hello, Progress - Bye-Bye father?". The cartoon and the caption were in a rectangular frame. The Applicant, Mr. John Corway, has by this Motion applied to the High Court under Section 8 of the Defamation Act, 1961for an Order granting him leave to commence a criminal prosecution for blasphemous libel against the Respondents who he says were responsible for the cartoon and caption. Section 8 of the Defamation Act, 1961reads as follows:-

"No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application".

4 This provision in the 1961 Act was not a new provision. Its ancestry went as far back as the Newspaper Libel and Registration Act, 1881. By Section 3 of that Act, a criminal prosecutionfor libel could not be commenced against the proprietor, publisher, editor or any person responsible for the publication of a newspaper without the written fiat or allowance of the Attorney General in Ireland. Section 8 of the Law of Libel Amendment Act, 1888 amended the Section so as to provide that leave to prosecute was to be obtained from a Judge in chambers. The 1961 Act therefore did not change the law, apart from specifying that the application was to be made in camera. Questions were raised by the Respondents at the hearing as to whether the Applicant had provided adequate proof of the responsibility of the Respondents for the publication and I indicated that I would, if necessary, permit additional evidence in relation to this matter. Subject to that proviso and for the purposes of this judgment I will assume that the Respondents in the Motion are the properRespondents.

5 Although as far as I am aware, there has been no modern application to the Court under Section 8 of the Defamation Act, 1961for leave to commence a prosecution for blasphemous libel, there have been at least two applications for leave to commence a prosecution for criminal libel using that expression in its narrower sense of meaning defamatory libel. One of these cases was an application of Eddie Gallagher in which an unreported judgment was delivered by Finlay P.(as he then was) on the 3rd July, 1978. The other was Hilliard v. Penfield EnterprisesLimited [1990] 1 IR 138 in which Judgment of Mr. Justice Gannon was delivered on the 2nd March, 1990. In his judgment, Gannon J. adopted and followed principles laid down in his judgment by Finlay P. who in turn adopted and followed certain English Case law. The principles as identified by Finlay P. were set out by him asfollows:-

6 2 "(1) Firstly the applicant must establish a clear prima facie case in the sense that it is a case which is so clear at first sight that there isbeyond argument a case to answer if the matter goes before a CriminalCourt.

7 (2) The libel must be a serious one, so serious that it is proper for the criminal law to be invoked.

8 (3) Although it may be a relevant factor that the libel is unusually likely to provoke a breach of the peace that is not a necessary ingredient.

9 (4) The question of the public interest must be taken into account on the basis that the Judge should ask himself the question: Does the public interest require the institution of criminalproceedings?"

10 I am satisfied that analogous principles should apply to an application for leave to institute a prosecution for blasphemous libel. Clearly the origin of the statutory provision requiring leave of a Court for instituting a criminal case of libel against a publisher or editor of a newspaper was to protect the fundamental right of free speech and freedom of the press, but on the other hand to ensure that appropriate criminal prosecutions for libel should not, be impeded in the public interest. A similar balance has now to be struck under the Constitution. Under Article 40(6)(1)(i) the State guarantees the right of the citizens to express freely their convictions and opinions. That right, however, is qualified by the later provisions of the same sub-paragraph where it is stated that.

"the education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful...