R (Lanktree) v M'Carthy, Holland, and O'Dwyer

• Jurisdiction: Ireland
• Judgment Date: 20 December 1902
• Date: 20 December 1902
• Court: King's Bench Division (Ireland)

R. (Lanktree)

and

M'Carthy, Holland, and O'Dwyer (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Criminal Law and Procedure (Ireland) Act, 1887 (50 & 51 Vict. c. 20), sections 2(1), (2), (4), 5 — Proclamation — Dublin Gazette — Inciting to intimidation — Newspaper containing intimidatory matter — Circulation — Evidence — Summons.

Summons charging the defendants in three counts—(1) with having, in a district proclaimed under the Criminal Law and Procedure (Ireland) Act, 1887, unlawfully used intimidation towards certain persons whose names were unknown, to wit, persons who had taken, used, or occupied farms of land in Ireland for grazing purposes, or from which tenants had been evicted, in consequence of said persons having done acts which they had a legal right to do, namely, to take, use, and occupy such farms; (2) with having in said district unlawfully incited certain persons whose names were unknown to use intimidation towards certain other persons whose names were unknown, to wit, &c. [as in 1st count]; (3) with having in said district unlawfully incited certain persons whose names were unknown unlawfully to take part in a criminal conspiracy to induce certain other persons whose names were unknown, to wit, &c. [as in 1st count]. The magistrate having convicted on the 1st count, and having held that there was no evidence that the “inciting” complained of in the 2nd and 3rd counts reached the persons alleged to be incited, acquitted all the defendants on these counts.

Held, that the summons was sufficiently specific.

A copy of the Dublin Gazette, purporting to be published by authority and to be printed under the authority of His Majesty's Stationery Office, held, admissible to prove a proclamation under the Act contained in the Gazette.

Reg. v. Wallace (17 Ir. C. L. R. 206) distinguished.

Upon a charge of incitement as preferred in the summons, where the incriminated matter was published in a newspaper, the production of a copy of the newspaper purchased from a firm of newsagents described in an advertisement in the paper as wholesale agents, and who were proved to have been supplied with the papers in pursuance of a wholesale order, and which advertisement stated that the paper had agents for sale throughout Ireland, held, sufficient evidence of circulation to prove that the incitement reached persons intended to be incited.

Held, further, by Lord O'Brien, L.C.J., and Madden and Boyd, JJ. (diss. Gibson, J.), that to establish the offence of “using intimidation towards,” charged in the 1st count, it was not necessary to prove that the intimidatory matter reached any person intended to be thereby intimidated. The statutory

offence is completed by the publication of the intimidatory matters with intent to intimidate, and therefore the proprietor of the paper was rightly convicted. The Criminal Law and Procedure (Ireland) Act, 1887, contrasted in this respect with the Conspiracy and Protection of Property Act, 1875.

Per Gibson, J.: To establish intimidation as distinct from an attempt to intimidate, it is necessary to prove that some one might, in fact, be affected; and an overt act of attempted intimidation is not necessarily the complete offence.

Held, as to the 2nd and 3rd counts of the summons, that, in order to warrant a conviction under those counts, there should be evidence that the incitement reached the persons intended to be incited, and that such evidence did exist, and that the magistrate was wrong in holding there was no such evidence.

Held, in result, by the majority of the Court, that the judgment upon the 1st count against the proprietor of the newspaper should stand; but, by all the Court, that, on the evidence against the alleged printer and publisher and the business manager, which the Court held insufficient to prove implication as against them, the judgment against them should be set aside.

Cases Stated by Mr. D. Mahony, Divisional Justice of the Dublin Police District, under the 20 & 21 Vict. c. 43, for the opinion of the Court, one at the instance of the defendants, and the other at the instance of the complainant.

The material facts were in substance as follows:—

The defendants were charged—(1) for that they, between the 1st July, 1902, and the 8th September, 1902, did, by the publication of certain matter in a certain newspaper called the Irish People, in the county borough of Dublin aforesaid, being a proclaimed district under the provisions of the Criminal Law and Procedure (Ireland) Act, 1887, wrongfully and without legal authority, unlawfully use intimidation towards certain persons whose names are unknown, to wit, persons who had taken, used, or occupied farms in Ireland, let for grazing purposes, or from which tenants had been evicted in due course of law, in consequence of the said persons having done acts which they had a legal right to do, namely, to take, use, and occupy such farms as aforesaid. (2) That they, between the said days, did, by the publication of certain matter in a certain newspaper called the Irish People, in the county borough, &c., being a proclaimed district as aforesaid, wrongfully and without legal authority, unlawfully incite certain persons whose names are unknown, unlawfully to use intimidation towards certain other persons whose names are unknown, to wit, &c. [as in 1st count]. (3) That they, between the said days, did, by the publication of certain matter in a newspaper called the Irish People, in the county borough, &c., being a proclaimed district as aforesaid, unlawfully incite certain persons whose names are unknown, unlawfully to take part in a criminal conspiracy punishable by law, at the time of the passing of the said Act, to wit, a conspiracy unlawfully to induce certain other persons whose names are unknown, to wit, persons who had taken, used, or occupied farms of land in Ireland let for grazing purposes, or from which tenants had been evicted in due course of law, not to take, use, or occupy same.

On behalf of the complainant there was given in evidence a copy of the Dublin Gazette of August 29th, 1902, containing the following proclamation:—

By the Lords Justices and Privy Council in Ireland.

A PROCLAMATION.

ASHBOURNE, C.

POWERSCOURT.

Wheras it appears to Us to be necessary for the prevention, detection, and punishment of crime and outrage in Ireland, that the hereinafter provisions of “The Criminal Law and Procedure (Ireland) Act, 1887,” should be in force within the County Borough of Dublin:

Now We, the Lords Justices-General and General Governors of Ireland, by and with the advice of the Privy Council in Ireland, by virtue of section 5 of “The Criminal Law and Procedure (Ireland) Act, 1887,” and of every power and authority in this behalf, do, by this Our Proclamation, declare that from the date hereof sections 3 and 4 of “The Criminal Law and Procedure (Ireland) Act, 1887,” relating to proclaimed districts, shall be in force within the County Borough of Dublin:

This Proclamation shall be promulgated by the same being published in the Dublin Gazette.

Given at the Council Chamber, Dublin Castle, this 1st day of September, 1902.

George Wyndham.

John Atkinson.

GOD SAVE THE KING,

The said copy was headed “Printed by authority,” and at foot were the words:—

Printed under the authority of His Majesty's Stationery Office by Alexander Thom & Company, Limited, of Nos. 87,88, and 89, Middle Abbey-street, in the parish of St. Thomas, in the city of Dublin.

It may be taken, for the purposes of this report, that the defendant Timothy M'Carthy was the proprietor of a newspaper, the Irish People, printed and published in Dublin; also that articles in the issues of newspapers published at the dates herein-after mentioned contained matters which in the opinion of the Court constituted an offence under the 2nd section of the Criminal Law and Procedure (Ireland) Act, 1887. To prove circulation Charles Eason, a member of the firm of Eason and Sons, Limited, newsagents, Dublin, was called by complainant, and proved that he sold the said newspaper, the Irish People, in his premises in Dublin, meaning thereby, as the magistrate found, that the said newspaper was for sale there, and that the copies as sold by him were purchased by him at the office of said newspaper, the Irish People, 105, Capel-street, aforesaid, and that they arrived in his office in pursuance of a wholesale order. He also proved that he had seen an advertisement in the Irish People of the 19th July, 1902, in which his firm were referred to as wholesale agents for said newspaper. This advertisement was headed “To Irish Nationalists,” and stated that the paper had agents for sale throughout Ireland. It was proved that a copy of each of said newspapers known as the Irish People, of the 19th July, 26th July, 9th August, and 6th September, 1902, respectively, had been purchased at the premises of Messrs. Eason & Sons, Limited, Dublin, aforesaid, and also that a copy of said newspaper of the 6th September, 1902, had been purchased on the...