Dead man's family refused leave for criminal libel prosecution

 

Dennehy Anor -v- Independent Star Ltd, trading as the Irish Daily Starnewspaper

High Court

Judgment was delivered on May 29th, 2009, by Mr Justice Paul Gilligan.

Judgment

Leave to bring a prosecution for criminal libel against the Irish Daily Starwas refused. It had been sought by the brother and sister of a man murdered on September 26th, 2007, arising out of reports on the manner of his death.

The court found that there had to be a libel of a living person in order to bring such a prosecution, and that this did not exist in this case.

Background

The case arose from the reporting by the Irish Daily Starnewspaper of the death of Finbar Dennehy, whose body was found in his apartment in Clontarf. A postmortem revealed that he had died from a single stab wound.

The newspaper reported this on September 28th under an extremely prominent headline, “Kinky Sex Horror”, and said that gardaí were “probing whether a man was murdered – or killed accidentally in a kinky sex game”. The next day its headline on the story said: “Kinky gay sex man was stabbed”.

Later a man was arrested, charged and convicted of the murder of Mr Dennehy, and sentenced to life imprisonment.

The case was taken by Mr Dennehy’s brother and sister, who said that the allegation that he was involved in a bizarre sex game that went horribly wrong was wholly untrue and grossly defamatory of their late brother.

They said that the assertions were grossly destructive of his good name and as a result the family had been left outraged and had been caused extreme distress and damage.

They also said that the terms in which the articles were written and presented showed an intention to vilify their brother and were such as to be likely to cause immense anger, pain and distress to members of his family.

The respondent newspaper declined to deliver any replying affidavit. “Accordingly,” Mr Justice Gilligan said, “the first- named applicant’s averment that it [the newspaper story] is wholly untrue and grossly defamatory remains unchallenged.”

The applicants’ solicitors wrote to the editor of the newspaper asking him to publish a retraction and apology, but they received no reply. They then wrote stating they would take the present proceedings, and the newspaper indicated that it would be contesting them.

Mr Justice Gilligan said that two principal legal issues arose. The first concerned the relevant principles applicable by the court when considering an application to pursue a prosecution for criminal libel; the second was the applicability of the jurisprudence of the European Court of Human Rights.

He considered in depth the case law on attempting to prosecute for criminal libel, referring extensively to the judgment in Hilliard -v- Penfield Enterprises [1990], where an application for such a prosecution was refused, although the judge in the case, Mr Justice Gibbons, had described the article in question as “so scurrilous and contrived in its presentation of dissociated persons and events as to arouse feelings of revulsion towards the author, as well as vilifying the deceased husband”.

In this and other cases, the principles outlined were that the applicant must establish a clear prima facie case that it was beyond argument there was a case to answer; the libel must be serious enough for the criminal law to be invoked; it may be a relevant factor that the libel was unusually likely to lead to a breach of the peace; and the question of whether the public interest required the institution of criminal proceedings must be taken into account.

The case law also indicated that where the article complained of refers to a deceased person, it must also defame a living person in order to warrant the granting of leave to bring a prosecution for criminal libel.

Decision

“I see no reason to depart from the understanding of the law enunciated in Hilliard,” Mr Justice Gilligan said. “For leave to be granted, it is necessary to establish a prima facie case that the statements complained of are defamatory of living persons.”

He said that the allegations in this case related to matters of a personal nature to the deceased. It could not reasonably be presumed that the brother or sister were aware of or connected to the activities ascribed to him.

While they had suffered as a result of the libel of their late brother, in order to grant leave to bring criminal proceedings for libel, it was necessary that the subject matter was defamatory of living persons, and that it was intended to defame them.

There was no evidence that the respondent intended to injure the applicants, and they had not been defamed.

Accordingly, no prima facie case had been established, and leave must be refused.

Referring to arguments raised by counsel for the applicants, Frank Callanan SC, which were drawn from the jurisprudence of the European Court of Human Rights, he said the 2003 Act incorporating the convention was clear.

It was not possible to construe the law in such a way as to bring about a departure from the clear requirements laid down in the authorities relating to criminal libel.

The full judgment is on www.courts.ie


Frank Callanan SC and Francis McGagh instructed by Byrne Co (incorporating Liam Moran Co, Swords) for the plaintiffs; Eoin McCullough SC and Shane English BL, instructed by Dylan Eustace, for the defendant