Tag Archives: common law

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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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 Capital Punishment

Hanging. The most popular method for the death penalty throughout English Legal History.

The legal history of capital punishment in the United Kingdom is an interesting one and ranges across many centuries from the extreme of having no crimes strictly punishable by death to a multitude and back to none. In early Norman times, the principles of the common law in relation to the punishment of crimes were very simple. If the crime was a misdemeanor (minor or petty offences) then the punishment was at the discretion of the justices of the court.

For felonies (serious offences) the criminal was put on the king’s mercy which usually involved the ordering of mutilation in the form of castration or blinding. This was seen as a mercy rather than imposing the ultimate punishment of death.

By the early 13th Century, a fixed penalty of death was imposed for almost all felonies. For treason, this was death by being hung, drawn and quartered and for other felonies, simply death by hanging. This fixed penalty was grossly inflexible and various methods were used to mitigate the sentence of death, until later reforms abolished it. These methods included Sanctuary (my post on which can be found here), Benefit of Clergy, Pardons and Jury Mitigation. Later blog posts will deal with the latter three topics.

This state of affairs continued for some time. The expertise of the legal profession was directed towards thinking of incredible ways to avoid the death penalty, rather than reform it. Still by 1688 there were 50 offences within statute law that carried a death sentence, this rose to 220 by the the late 18th Century. These offences were wide-ranging and even included ‘being in the company of gypsies for one month’. It is a testament to the above mentioned methods of avoidance that, between 1770 and 1830, 35,000 death sentences were given but only 7,000 people were executed.

The legal reformer Sir Samuel Romilly KC, also responsible for calling for the abolition of slavery, succeeded in having the death penalty abolished from a mere two offences, namely pick-pocketing and stealing from bleaching grounds.

A year after Sir Romilly’s death in 1818, a Parliamentary select committee looking at the issue of the death penalty led to several statutes that slowly, and in a piecemeal fashion, abolished the death penalty from many offences.

By the 1860s, there were only several offences that still attracted the death penalty. These were murder, treason, piracy, and arson in naval dockyards. This remained the same until 1957 when difficult cases arose as regards capital punishment for murder. It led to the introduction of the Homicide Act 1957 which suspended the practice and the Murder (Abolition of Death Penalty) Act 1965 which abolished it entirely. Death as a punishment for Arson in naval dockyards was repealed by the Criminal Damage Act 1971.

Although beheading was removed as a potential punishment for treason in 1973, hanging remained until 1998 when the Crime and Disorder Act 1998 abolished some of the last remnants of capital punishment in the UK, with the abolition of the punishment for treason and piracy.

The last remnant of the death penalty in the UK (the punishment existed within military jurisdiction during wartime) was abolished by the coming into force of the Human Rights Act 1998. Since 2004, the UK has been signed up to the 13th Protocol of the European Convention on Human Rights which prohibits the death penalty in any circumstances. It would be impossible for the UK to bring in laws to reinstate the death penalty unless they were to formally withdraw from the Convention.

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History of Burglary

burglarskit

An array of historical Burglar’s tools.

Burglary is a crime which has changed significantly over the years but in all its forms has always reflected the seriousness of breaking into a building, or part thereof, and the damage that can cause to both people and property.

 

In Anglo-Saxon times, the then equivalent of Burglary was known as husbryce which literally meant ‘house-breach’. However, its definition was geared more towards a person having caused injury to another in the process of an armed raid on a town.

Up until the mid-15th Century, breaking into a building does not appear as a separate offence in itself, it only appears in the courts as an aggravating factor. It could turn a petty theft into a felony for which you could be sentenced to death.

By the 1450s, Burglary appeared as its own offence and could be committed even if nothing had been stolen from the building, all there needed to be was an intent to steal something. It was at this time that the offence first started to be known as Burglary, rather than house-breaching/breaking or criminal invasion of a building. For an early example of a Burglary in 1674, please see this case.

Burglary of the 15th Century had two elements that seem unusual to us now. Firstly, it was an essential requirement that someone was in the building at the time the burglary took place and secondly, the burglary had to take place at night. If a de facto burglary was carried out in the daytime, it would only be trespass at common law and not a felony offence.

The second element led to some interesting judge discussion on what constituted night. Originally, a 1505 case set the definition as after sunset and before sunrise but this led to people being able to commit Burglary in twilight conditions. This lasted until a case in 1606 where judges set the test of whether a man’s face was discernible.

In 1837 a definition of night was made so arbitrary that it could be proved in any case but it was not officially repealed until the Theft Act 1968, where the nocturnal element was finally abolished from Burglary. The requirement of someone being in the building at the time of the Burglary had been abolished earlier with several statutes beginning in 1547.

The current law on Burglary is to be found in ss. 9 and 10 of the Theft Act 1968. Section 9 lays out two species of burglary that can be committed, s.9(1)(a) is where a person enters the building, or part thereof, as a trespasser with intent to commit theft, GBH or criminal damage to the building and s.9(1)(b) is where a person enters the building, or part thereof, as a trespasser and actually commits theft or GBH. A person can be sentenced to a maximum of 14 years in prison for a s.9 burglary.

Section 10 lays out a new offence of Aggravated Burglary where a person commits burglary whilst carrying a firearm, imitation firearm or certain weapons of offence defined in the section. This offence carries a maximum penalty of life imprisonment.

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