Dennehy and Another v Independent Star Ltd t/a The Irish Daily Star Newspaper
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 28 May 2009 |
| Neutral Citation | [2009] IEHC 458 |
| Court | High Court |
| Docket Number | [No.28 IA/2008] |
| Date | 28 May 2009 |
[2009] IEHC 458
THE HIGH COURT
AND
AND
AND
DEFAMATION ACT 1961 S8
GOLDSMITH v PRESSDRAM LTD & ORS 1976 3 WLR 191 1977 2 AER 557 1977 QB 83
GALLAGHER v INDEPENDENT NEWSPAPERS UNREP FINLAY 3.7.1978 (UNAVAILABLE)
HILLIARD v PENFIELD ENTERPRISES LTD & ORS 1990 1 IR 138 1990 DULJ 138 1990/3/768
MILMO & ROGERS GATLEY ON LIBEL & SLANDER 11ED 2008 768
CASE OF DE LIBELLIS FAMOSIS 1605 5 CO REP 125A 77 ER 250
R v TOPHAM 1791 4 D & E 126 100 ER 931
R v ENSOR 1886-87 3 TLR 366
MILMO & ROGERS GATLEY ON LIBEL & SLANDER 11ED 2008 769
VON HANNOVER v GERMANY 2004 EMLR 21 2005 40 EHRR 1
PFEIFER v AUSTRIA 2009 48 EHRR 8
DALBAN v ROMANIA 2001 31 EHRR 39
JUDGE MAHON & ORS (PLANNING TRIBUBAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST 2007 3 IR 338 2007 2 ILRM 1 2007/38/7912 2007 IESC 15
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
DEFAMATION
Criminal libel
Leave to commence criminal prosecution for libel - Principles to be applied - Defamed person deceased - Newspaper article concerning circumstances of death - Applicants relatives of deceased -Necessity to establish that statements complained of defamatory of living persons - Defamation of persons by reason of statements regarding deceased - Intent to injure living persons -Whether intention could be inferred - Whether clear prima facie case to answer in criminal court - Whether libel serious enough to invoke criminal law - Whether libel likely to provoke breach of peace - Public interest - Freedom of expression - Goldsmith v Pressdram [1977] QB 83 followed; Hilliard v Penfield Enterprises Ltd [1990] 1 IR 138 and Mahon v Post Publications Ltd [2007] 3 IR 338 applied; De Libellis Famosis (1605) 5 Co Rep 125, R v Topham (1791) 4 TR 126, R v Ensor (1887) 3 TLR 366, Von Hannover v Germany [2004] EMLR 21, Pfeifer v Austria (2009) 48 EHRR 8, Dalban v Romania [1999] ECHR 226 and Gallagher v Independent Newspapers (Unrep, Finlay P, 3/7/1978) considered - Defamation Act 1961 (No 40), s 8 - Leave refused (2008/28 IA - Gilligan J - 28/5/2009) [2009] IEHC 458
Dennehy v Irish Daily Star Newspaper
This is an application, pursuant to s. 8 of the Defamation Act 1961 (hereafter 'the 1961 Act'), for leave to institute a prosecution for criminal libel. Section 8 provides:-
"No criminal prosecution stall 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."
This application was accordingly heardin camera. However, by consent of the parties this judgment is delivered in open court.
The applicants are, respectively, the brother and sister of Finbar Dennehy, deceased, and the application is brought by way of notice of motion and a grounding affidavit sworn by the first applicant. He avers that the respondent is the owner and publisher for the purposes of the 1961 Act of the newspaper "The Irish Daily Star", which is the subject matter of the within proceedings. He refers to the fact that his brother, Finbar Dennehy, died on the 26th September, 2007. The body of Finbar Dennehy was discovered in his apartment in Clontarf, in the City of Dublin on the 26th September, 2007. The Garda Press Office reported that he had died from a single stab wound.
On the 28th September, 2007, the front page of the respondent's newspaper the Irish Daily Star, carried an extremely prominent headline "Kinky Sex Horror" "Murder riddle as naked man is found tied up and choked". The accompanying article, stated to be written by Michael O'Toole, went on to identify the deceased Mr. Finbar Dennehy, as the victim and stated that "Gardaí were last night probing whether a man was murdered - or killed accidentally in a kinky sex game". The article stated that Mr. Dennehy "was found naked with a plastic bag over his head, a noose around his neck and his hands tied behind his back". A further article on p. 6 also stated to be written by Michael O'Toole, carried the prominent headline of "Murder riddle of sex game victim", with a subheading of "Noose tied around neck in autoerotic romp". This article stated that "Gardaí still don't know if the man who was trussed up like a pig in a bizarre sex game was murdered - or died accidentally".
In a further article on the 29th September, 2007, the Irish Daily Star carried a prominent headline "Kinky gay sex man was stabbed".
The first named applicant avers that the allegation that the late Mr. Dennehy was involved in a bizarre sex game that went horribly wrong is wholly untrue and grossly defamatory of the late Mr. Dennehy. It is averred that the assertions are grossly destructive of the late Mr. Dennehy's good name and that as a result of these allegations the family of the late Mr. Dennehy have been left outraged and caused extreme distress and damage. Further it is averred that the terms in which the articles were written and presented show a manifest intent to vilify the deceased and to do so in terms which were such as to be likely to cause immense anger, pain and distress to members of the late Mr. Dennehy's family and his friends, that the articles by reason of their content and style have provoked anger and resentment among family members including in particular, the first named applicant and that he has found it difficult to restrain himself arising from the publication of the articles and the lack of any remorse on the part of the respondent. The first named applicant avers that the contents of the articles are scurrilous and sensationalistic in presentation and denigratory of his late brother in the most provocative and inflammatory manner, and that the articles and their content have caused particular upset.
The respondent, having had the opportunity to do so, has declined to deliver any replying affidavit, preferring to rely on submissions to the court and accordingly, the first named applicant's averment that it is wholly untrue and grossly defamatory of the late Mr. Dennehy to have stated that he was involved in a kinky gay sex game that went horribly wrong remains unchallenged, as does the averment of the first named applicant that the contents of the articles are scurrilous and sensationalistic in presentation, and denigratory of the late Mr. Dennehy in the most provocative and inflammatory manner.
As a result of a garda investigation into the death of the late Mr. Finbar Dennehy, an individual was charged with and convicted of his murder and sentenced to life imprisonment.
Subsequent to the publication of the article the applicants' solicitors wrote to the editor of the Irish Daily Star indicating the anger and distress that the deceased's family had suffered as a result of the publication of the articles, and advising of their intention to institute a prosecution for criminal libel and to apply to the High Court for leave to do so pursuant to s. 8 of the 1961 Act. The applicants through their solicitors invited the editor of the Irish Daily Star to publish an apology and retraction of the statements contained in the articles. No reply was received to this initial letter and, subsequently, a further letter of the 22nd January, 2008, noted that the editor had failed to reply to the earlier letter and repeated the warning that a s. 8 leave application would be made in the near future in the absence of a satisfactory reply. Subsequently, the solicitors for the respondent replied by way of a letter of the 15th February, 2008, indicating a denial of any conduct of a criminal nature, or any conduct approaching criminality and indicating that the application for leave pursuant to s. 8 would be contested.
The views as stated by the first named applicant in relation to the articles as referred to herein, which have not been contested, state all that is appropriate in relation to the articles themselves.
Two principal legal issues arise for consideration. The first concerns the relevant principles applicable by the court, in an application pursuant to s. 8 of the 1961 Act, for leave to commence a criminal prosecution for the publication of a libel and secondly, in the particular circumstances of this case, the fact that the applicants are the brother and sister respectively of the late Mr. Finbar Dennehy, who was deceased at the time of the relevant publication, having been murdered some few days beforehand.
The general principles applicable in the present application are those which were originally enunciated by Wien J. inGoldsmith v. Pressdram [1976] 3 W.L.R. 191.
In expressing those principles Wien J. stated at p. 196:-
"First before discretion can be exercised in favour of an applicant who wishes to institute criminal proceedings in respect of a libel, which he contends is criminal, there must be a clearprima facie case. What I mean by that is that there must be a case to go before a Criminal Court that is so clear at first sight that it is beyond argument that there is a case to answer. Secondly, the libel must be a serious one - so serious that it is proper for the criminal law to be invoked. It may be a relevant factor that it is unusually likely for the libel to...
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