History of Defamation

The common law test for Defamation.

Before the early 1300s, actions for the predecessor of defamation were obscure and purely within the jurisdiction of the Church courts, it was not until much later that the King’s courts allowed an action for defamatory words. The often physically-based nature of the common law was not in favour of creating an offence which rested on mere words. It was much more concerned with the tangible actions and results of, for example, assault, theft and murder.

It took until the 1500s before a common law action for defamation appeared. Perhaps the key reason for this delay, as outlined above, is the fact that pre-1500, defamation was seen as a purely spiritual matter and was therefore dealt with by the Church courts. The Church courts tried Defamation as a criminal offence and could only sentence the offender to penance, admittedly quite a light punishment. This early distinction between the Church and common law jurisdictions will be examined in a later blog post.

However, before this time, there were occasional actions that touched upon issues of defamation and the tarnishing of someone’s character or reputation. For example, in the 14th Century, there were actions brought by nobles who had been slandered in the King’s open courts. A judge in 1358 recovered a sizable sum of money for being called a traitor at court. Moreover, some actions were brought regarding false statements about men having second marriages, a very damaging accusation that could ruin their reputations.

Around the same time, the 1378 Statute of scandalum magnatum allowed important judges and Church officials to bring an action if they had been insulted or defamed. The first common law defamation case on record was brought in 1507, where the King’s Court changed its mind regarding mere words and decided they could impact the honour of a man as much, or even more so, than physical attacks. At the time, three categories of Defamation existed: (1) Words accusing someone of a crime; (2) Words accusing someone of being incompetent at their job and (3) Words accusing someone of having a particular disease (such as the French pox).

Human nature being as it is, this led to a flood of actions and various forms of defamation became the bread-and-butter work of the King’s court, becoming its most dealt with action by the mid-to-late 16th Century. In cases of 1557 and 1565, several judges made attempts to limit the number of actions by (1) insisting on the claimant proving special and real damage to their reputation; (2) words said as jokingly or in anger were not actionable and (3) by interpreting ambiguous words as less defamatory than they could potentially be. This did serve to limit the actions slightly but they were still extremely common. Several specific rules were also created, such as a man being able to bring an action even if he already possessed a bad reputation.

Until 1660, the common law did not draw a clear distinction between defamation that was spoken or that which was in writing. However, defamatory words in writing were often punished with harsher sentences. The current distinction is between impermanent, often spoken, statements (Slander) and permanent, often written, statements (Libel).

The current law of Defamation is broadly that an action can be brought in the High Court by a claimant if a published statement would make a reasonable person think worse of them. The actions revolve around the Slander and Libel distinction mentioned immediately above. There are several defences to such a claim: (a) Justification (where the statement is true), (b) Fair Comment (where the statement would be believed by a reasonable person) and (c) Privilege (where the statement is privileged, for example, something said in the Houses of Parliament).

Defamation is still a very popular action and cases involving it are regularly headline news with a variety of celebrities claiming their reputation has been tarnished, often by statements made in newspapers. This modern flood of actions led to the passing of the Defamation Act 2013, which came into force on the 25th of April 2013. This Act is geared towards striking a new balance between the claimant and defendant, seemingly making claims harder to prove by outlining a new requirement of serious harm to the claimant’s reputation and improving the strength of the various defences. The Act only applies to defamatory statements after its commencement therefore the older defamation law will apply in many cases going ahead in 2014/15.

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Detection in England from Bow Street to the Met

Detectives have had a special niche in popular culture for many years. Beginning in the nineteenth century with the works of Charles Dickens and Wilkie Collins and followed later in the century by Arthur Conan Doyle’s Sherlock Holmes, detectives captured the nineteenth-century imagination. Today, crime novels, although still popular, have been supplanted by serialized crime dramas like the CSI and Law & Order franchises, and more recently by the revived Sherlock series and Luther. But where does this fascination with detection come from? Some have argued that the Victorians (and it certainly didn’t stop with them) had a keen enthusiasm for the macabre, whether it be executions, murders or other salacious tales of malice.[1] But it was not only the crimes that made headlines, it was the men who investigated them: professional detectives.

Bow Street police court

Bow Street police court

Formal detection in England began in mid-eighteenth century London with the Bow Street Runners. Begun by Bow Street magistrate Henry Fielding and continued under his blind half-brother John, the Runners were part of Fielding’s innovative approach to combatting crime. Since there were no centralized or professional police in England, the Runners were the first to systematize criminal investigation through information gathering. They investigated crimes for the government, helped private individuals, and even protected the royal family. Bow Street also had a series of mounted and foot patrols to police the city on regular beats. By the 1820s, however, the Runners’ reputation was in decline. Their legacy was tarnished by their association with thief-takers and they were known to collude with criminals to ensure the return of stolen property. Although effective, their methods were not as wholesome as the government would have wished and they were disbanded in 1839.[2]

The Bow Street Runners were an important forerunner to Scotland Yard’s detective force. Formed in 1842, shortly after the disbandment of the Runners and a horrific murder, the Detective Department was the first streamlined detective force in England. Given that the London Metropolitan Police (founded in 1829) was England’s first centralized police force, it made sense that the first police detectives operated in England’s, and Europe’s, largest city.

Old Scotland Yard (behind original location of the Metropolitan Police on Whitehall)

Old Scotland Yard (behind original location of the Metropolitan Police on Whitehall)

Scotland Yard’s detectives typically investigated serious felonies, especially murders. This is most likely because by the 1840s, the death penalty was only routinely applied for convicted murderers, and the government wanted seasoned officers to help investigate and prosecute those cases.[3] Such cases required flexibility in terms of time and location that regular police constables were unable to perform because they were restricted to their ‘beats’. To gain information, detectives made a habit of getting to know the criminal element in London, through frequenting pubs and races, employing informers and even using the newspapers to find information and discover possible frauds.

The Met’s detectives undertook inquiries assigned to them by the Commissioners of Police as well as undertaking investigative work for the Home Office, private individuals and institutions, and local magistrates. There were several sub-divisions within the detective department, with some men specializing in loan-office swindles, fraudulent betting, foreign inquiries, naturalization, and extradition cases. They also investigated political crime, guarded important figures of state, and kept an eye on foreign revolutionaries who fled their countries for safe haven in England. Detectives frequently undertook cases on behalf of foreign governments or institutions. In other cases, police detectives were asked to extradite foreigners back to their own countries, or to bring back English citizens from abroad on extradition warrants. Investigating forgery and coining offenses was also a routine detective activity.

Some of the men became quite famous. Charles Dickens took a shine to the first wave of detectives. He published interviews with them in his journal Household Words. He praised their talent for catching criminals, writing, “If thieving be an art…thief-taking is a Science.”[4] In his novel Bleak House, Dickens based the character Inspector Bucket on real life Detective Inspector Charles Frederick Field. Wilkie Collins also included a Met detective in one of his novels. Sergeant Cuff in The Moonstone was based upon Detective Inspector Jonathan Whicher. Both detectives are portrayed as intelligent, thoughtful and judicious men, albeit with a touch of mystery about them. The positive portrayal of police detectives by Dickens and Collins was a sea change in the way educated Britons perceived centralized policing. In the eighteenth and early nineteenth centuries, centralized police were considered symbols of continental despotism. By the 1850s the police and detectives had proved their worth by maintaining public order during turbulent periods (it is notable that unlike most continental states, England did not have a revolution during the nineteenth century) and combatting and investigating crime.

The ‘Bobby’ remains one of the more beloved figures in English culture – an accolade the English police worked hard to earn. The perseverance of nineteenth-century English policemen and detectives in the face of public skepticism and, at times, outright hostility paved the way for future police organizations. The creation of Special Branch in the 1880s, MI5 in the early twentieth century and the explosion of domestic and foreign espionage organizations during the First and Second World Wars owe their pedigree to the first waves of English detectives at Bow Street and the Met.

Rachael Griffin

Rachael Griffin is a PhD candidate at The University of Western Ontario in Canada. Her thesis is entitled: “Detective Policing and the State in Nineteenth-Century England: The Detective Department of the London Metropolitan Police, 1842-1878.”

For further interesting blog posts and resources, please see Rachael’s blog at http://victoriandetectives.wordpress.com.


[1] The best recent work on the subject is Rosalind Crone’s Violent Victorians: Popular Entertainment in nineteenth-century London (Manchester: Manchester University Press, 2012). Although less academic, Judith Flanders’ The Invention of Murder: How the Victorians Revelled in Death and Detection and Created Modern Crime (London: Harper Press, 2011) identifies the Victorian fascination with murder.

[2] J.M. Beattie, The First English Detectives: The Bow Street Runners and the Policing of London, 1750-1840 (Oxford: Oxford University Press, 2012); David J. Cox, A Certain Share of Low Cunning: A History of the Bow Street Runners, 1792-1839 (Portland: Willan Publishing, 2010).

[3] Philip Thurmond Smith, Policing Victorian London: political policing, public order and the London Metropolitan Police (Westport: Greenwood Press, 1985), 18.

[4] Household Words, July 13, 1850.

** This post is the result of independent academic work and is intended for future publication by the author. Please do not reproduce the content of this blog in print or any other media without permission of the author (reblogs excepted). Any questions or concerns can be directed to Rachael Griffin via the Feedback page

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Arson in Medieval Ireland

Photograph by Riona Doolan.

Photograph by Riona Doolan.

The medieval Irish law tracts, popularly known as the Brehon Laws, were in use from the early medieval period to the start of the seventeenth century in Ireland. The canonical text of most of these laws were first written down between AD 650-750, and the laws with associated gloss and commentary survive in manuscripts from the twelfth to the sixteenth centuries. Though many of these laws have been rendered into English, a large number have yet to be critically edited and translated.

Punitive imprisonment was not regularly used in medieval Ireland for a crime; instead, compensation was paid to a victim according to his or her status in society. This compensation could involve a specific crime-related payment plus a payment of honour-price (wergild) depending on the seriousness of the crime. There were two main units of value in medieval Ireland: cumals (1 cumal = 3 milch cows) and séts (1 sét, generally = ½ ounce of silver, depending on the law text), with a man’s worth regularly measured in livestock.

Some of the original canonical texts are no longer extant; this unfortunately limits the amount of information we have regarding how certain crimes were treated in the early medieval period. In Britain, a large amount of medieval case law survives which show us not only the extant laws but how justice was applied in individual situations. In Ireland however, hardly any case law remains which means we must interpret the laws primarily as they are presented in the manuscripts. One such canonical tract that is no longer extant is Bretha Forloisctheo ‘Judgments on Arson’. Even though we no longer have the primary text, five legal commentaries on the law tract do survive to inform us regarding this crime. These commentaries were written in the late medieval period in legal schools based in various locations around Ireland.

Arson was treated as a serious crime in the medieval period. Buildings were mostly made of wood, and fires could spread easily. It was a crime that had the potential to impact not just the victim but also the entire community, with disastrous consequences if the fire got out of control. I have recently completed a translation of the oldest of the five commentaries on arson dating to the fourteenth century. It is divided into three separate sections. The first section deals with deliberate burning of a house. A fine of six cows and full compensation had to be paid; compensation was awarded if a house alongside or opposite burned down as well. There was no exemption from payment for negligent burning of a house, but leniency could be granted to the guilty party if the fire spread to adjacent buildings, and if other people in the area failed to help bring the fire under control.

The second section is concerned with industrial buildings such as mills and kilns. A penalty of three cows and full compensation had to be paid if these structures or the adjacent buildings were deliberately burned. If these were being used without the permission of the owner, then negligent burning was considered to be equivalent to deliberate arson. However, if they were being used with the permission of the owner and a fire accidentally broke out, the penalty was halved. If it occurred within the first three uses of either building, then no penalty had to be paid. Three séts had to be paid for burning a barn containing animals such as calves, sheep or pigs.

Finally, the third section focuses on the payments that had to be paid by the arsonist according to the victim’s status. The higher a person’s status, then the higher the compensation. In the commentary on arson, four different status levels are mentioned:

  • urrad – a man native to the territory;
  • deorad – a man from Ireland but not native to the territory;
  • murchuirthe – a man from overseas;
  • daer – an unfree member of society.

If an urrad was the victim of an arson attack, he was entitled to the full amount of the fine plus restitution; a deorad was entitled to half the fine plus restitution; a murchuirthe could expect one quarter of the fine and restitution; while a daer received restitution only.

Finally, if a person was killed in an arson attack, it was considered the equivalent of murder and a penalty of seven cumals (21 milch cows) had to be paid to the victim’s family; this was a standard penalty for murder.

Though the original law text on arson is no longer extant, we can still get a clear picture of how this crime was treated in the medieval period in Ireland. The effects of arson could have repercussions, not just for the victim, but for all members of a community, and as a result the fines were high. At the same time, the law acknowledged that accidents could happen and reduced the fines where appropriate showing fairness in its application of justice.

Riona Doolan

Suggested Reading:

Fergus Kelly, A Guide To Early Irish Law (Dublin, 1988), DIAS.

Fergus Kelly, Early Irish Farming: A Study Based Mainly On The Law-texts Of The 7th And 8th Centuries AD (Dublin, 2000), DIAS.

A. T. Lucas, ‘The Plundering And Burning Of Churches In Ireland, 7th to 16th Century’, North Munster Studies: Essays In Commemoration Of Monsignor Michael Moloney (ed.) Etienne Rynne (Limerick, 1967), pp. 172-229.

Biography:

Riona Doolan is a PhD candidate in the Department of Early and Medieval Irish, University College Cork, Ireland. Her doctoral thesis entitled, ‘Arson in Medieval Ireland’ is being funded by a Government of Ireland Postgraduate Scholarship from the Irish Research Council.

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History of Treason

A traitor being hung, drawn and quartered.

Treason is perhaps the most infamous crime in English Legal History, due in part to the horrendous punishment that came with it but also due to its often strong political importance. The punishment that was often inflicted was the drawing of the traitor across rough ground by horse, he would then be hanged to within an inch of death, followed by being disembowelled, burnt, and beheaded. Your remaining carcass was cut into four pieces. The punishment of being hung, drawn and quartered has morbidly captured the public’s imagination for many centuries.

The core aspect of Treason was, and still is, betrayal. If you follow history back to the earliest Germanic tribes, a man who betrayed his kin to the enemy tribe was killed, often in a highly sacrificial manner. There are also significant Roman influences through Christianity, Judas was the ultimate betrayer, he betrayed his Lord Jesus Christ. The betrayal of your Lord, be that your King or your immediate Landlord was thus characterised as the worst of crimes.

Pre-13th Century Treason encompassed a wide range of activities. For example, these included fleeing from battle, plotting the death of your King or Lord, forging your Lord’s seal and committing adultery with the Lord’s wife. A particularly severe case is Peter of Wakefield being hanged for predicting John would no longer be King by next year.

Treason garnered significant political and economic importance due to the fact that a traitor’s land would be forfeited to the King, rather than to his Lord. If the criminal had just committed a normal felony, his lands would be forfeited to his immediate Landlord. The King and his justices thus wanted to expand the coverage of Treason, whereas the normal Lords wanted to keep it limited.

In the 13th Century and onward, a distinction began to emerge between High Treason and Petty Treason. Broadly, High Treason was an act of betrayal against your King, whereas Petty Treason was an act of betrayal against your immediate Lord. The latter crime came to encompass the murder by a wife of her husband or the murder of a Bishop. Indeed, the crime of Petty Treason disappeared in 1828 as it was downgraded to murder. It is interesting note that the benefit of clergy, which originally protected religious officials from prosecution outside of the non-religious courts, was held not to apply to High Treason.

The development of Treason was going off in several directions and was becoming unclear. Parliament thus enacted the Treason Act 1351 which laid out a definition of High Treason, which until then had been contained in case law. This statute’s main definition is still in force today, although thankfully the Crime and Disorder Act 1998 instituted a maximum punishment of life imprisonment, rather than death. For the history of capital punishment in the UK, please see my blog post here.

The Treason Act included such activities as planning the death of the King or Queen, or their eldest son. Moreover, it included committing adultery with the Queen or her eldest daughter. Among other things, it also included the killing of the Chancellor, Treasurer or Judges in the exercise of their duties.

William Joyce, in 1946, was the last person to be tried for and convicted of High Treason in the UK. He was said to have committed Treason due to his Nazi activities in the war and owed allegiance to the UK by having a UK passport, although he was not actually entitled to such a passport. His punishment was execution through hanging.

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History of Trial by Jury

A typical modern day 12 person Jury.

Trial by Jury has traditionally been seen as the cornerstone of democracy and the rule of law in this country. This led Lord Devlin to dramatically comment in 1956 that trial by jury is “the lamp which shows that freedom lives”. However, this cornerstone has only been cemented for a few centuries. The origins of Trial by Jury, and more generally the swearing of 12 men to account for facts, goes back much further and even pre-dates the Norman conquest of 1066.

A jury is a body of people that are sworn to account for facts and to furnish courts of law with true and honest information. This idea was not unique to England and was used across ancient empires and within England and Normandy long before the Norman conquest.

At this early time, these bodies were called inquests. Its long history is attributable to the fact that without it, there was no efficient way to collect information about the number of livestock in an area or who owned which piece of land and where the boundary of that land was.

An inquest could also be held where 12 knights were summoned to provide information as to suspected criminals in their area. This process became known as the Grand Jury, as it was more general. The Petty Jury was a jury within a specific trial and will be discussed below.

The Petty Jury made its first proper appearance within 12th Century criminal cases. It became more prominent due to the fact that the Church disallowed the practice in 1215 of the Water and Fire ordeals as methods of proving guilt or innocence. Trial by Battle remained at this point but was already out of favour and the Jury was primed and ready to take over. My blog post on the ordeals can be found here.

Following on from this in the later 1200s and 1300s, Trial by Jury became significantly more common in all trials of wrongdoing in the courts. Furthermore, there was also discussion as to the nature of the Jury. Were the jurors to be treated like witnesses and individually examined or treated as a collective body? Case law in the 14th and 15th Century cemented the idea of the Jury as a collective institution.

To prevent improper influences and to preserve the honesty of their information, it quickly became very serious to communicate with a juror once they were sworn. The Jury was sequestered away from the influence of outside items or information. It was taken to the extreme and in a case of the late 1500s, 4 jurors were fined for possessing raisins and plums while sworn. It makes the modern day s.8 of the Contempt of Court Act 1981, which protects the confidentiality of Juries, seem mild.

In early Trial by Jury cases, if the jurors were not unanimous the judge could step in to decide one way or another. By 1367, case law strongly affirmed that unanimous verdicts were a necessity. This has eventually over the centuries gone back to majority verdicts being officially allowed, with the most recent law being contained in s.17 of the Juries Act 1974.

The state of affairs outlined above lasted for several centuries. There were a string of Juries Acts, prominent among them: 1825, 1850, 1949, and 1974, the latter being the most recent and currently in force edition. The general thrust of this string of legislation was to codify and make amendments to the law surrounding Juries which until that point was mainly contained within case law.

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