‘In the history of the Star Chamber it is said:- ‘In all ages libels have been most severely punished in this court, but most especially they began to be frequent about 42 and 43 Elizabeth, (1600, when Sir Edward Coke was her Attorney General).
‘In this passage therefore he was probably giving his impression of the Star Chamber practice, which no one would now regard as of any authority. There are, I think, many instances in which Lord Coke’s views of the criminal law are doubtful and go far beyond the authorities he refers to. In this passage he refers to none.’ The court then considered the ‘only real’ authority, R v Topham. and said; ‘The judgment seems to me to show that a mere vilifying of the deceased is not enough… There must be a vilifying of the dead with a view to injure his posterity. The dead have no rights and can suffer no wrongs. The living alone can be the subject of legal protection, and the law of libel is intended to protect them, not against every writing which gives them pain, but against writings holding them up individually to hatred, contempt or ridicule. This, no doubt, may be done in every variety of way. It is possible, under the mask of attacking a dead man, to attack a living one…..I wish to add that I regard the silence of the authorities and the general practice of the profession as a more weighty authority on this point than the isolated statements of Lord Coke and the few unsatisfactory cases referred to in R v Topham. I am reluctant in the highest degree to extend the criminal law. To speak broadly, to libel the dead is not an offence known to our law.’
Judges:
Stephen J
Citations:
(1887) 3 TLR 366
Jurisdiction:
England and Wales
Defamation, Crime
Updated: 09 May 2022; Ref: scu.221967
