Criminal intention is inferred in law from the mere fact of the publication of libellous matter, which is in itself an unlawful act (s). Accordingly, even when the older and more strict forms of indictments were used, it was unnecessary to allege that the publication was "malicious" (t). The burden of rebutting this inference lies therefore upon the accused person, who may prove circumstances which rendered the publication lawful. But in answer to this the prosecution may, in some cases, show that the publication was not in fact for any lawful purpose, but was actuated by express malice or malice in fact that is to say, by ill-will or any other improper motive (u).

The accused person may, as we have seen, set up the special plea of justification, which must be in writing. But he may also, under the plea of "not guilty," prove (1) that the publication was accidental; (2) that the matter complained of was fair comment on a matter of public interest; (3) that the publication was upon a privileged occasion.

1. It is a defence that the publication was accidental or made without the authority or knowledge of the defendant (w). Thus where the defendant is not the first publisher, but, as in the case of a bookseller, merely takes a subordinate part in disseminating a libel, he can escape liability by proving that he did not know of the libel and that his ignorance was not due to negligence (x). It has been provided by statute (y), that whenever upon the trial of any indictment or information for libel evidence has been given which establishes a presumptive case of publication against the defendant by the act of any person by his authority, the defendant may prove that the publication was without his knowledge, consent, or authority and did not arise from want of care on his part. It should be noted that no criminal prosecution can be commenced against any proprietor,

(s) Bromage v. Prosser, 4 B. & C. 247. See ante, p. 11.
(t) R. v. Munslow, [1895] 1 Q. B. 761; 64 L. J. M. C. 138.

(u) Archbold, pp. 1191, 1192.

(w) R. v. Munslow, supra.

(x) Emmens v. Pottle, 16 Q. B. D. 354.

(y) 6 & 7 Vict. c. 96, s. 7.

publisher, editor, or person responsible for the publication of a newspaper for any libel published therein without the order of a Judge in chambers, and the person accused must have notice of the application and opportunity of being heard against it (z).

2. It is a defence that the matter complained of was “fair comment"; that is to say, that (i) it related to a matter of public interest and concern, such as the administration of public affairs or institutions, or public performances, or literary works (a), and (ii) that it was pure criticism, i.e., an expression of opinion upon existing facts and not allegation of facts (b), and (iii) that it was bona-fide criticism, i.e., an opinion honestly held and expressed in the language of a fair man; the mere fact that the opinion is wrong will not destroy the defence, but, on the other hand, proof of malice in fact may take a criticism prima-facie fair outside the right of fair comment" (c).

3. It is a question for the Judge whether an occasion is privileged so as to prevent the publication of a libel from being punishable. Privilege may be absolute or qualified. In the latter case the privilege is lost if the prosecutor can show that the defendant was not honestly availing himself of the privilege but was actuated by express malice.

Absolute privilege exists for (a) judicial proceedings, Parliamentary Debates and Acts of State (d); (b) reports published by order of Parliament (e); (c) fair and accurate newspaper reports of judicial proceedings, if published contemporaneously (ƒ).

Qualified privilege exists for (a) fair and accurate reports of proceedings in Parliament (g), in Courts of Justice (h) and

(z) 51 & 52 Vict. c. 64, s. 8.

(a) Merivale v. Carson, 20 Q. B. D. 275.

(b) Davis v. Shepstone, 11 A. C. 187; 55 L. J. P. C. 51.

(c) Thomas v. Bradbury, Agnew & Co., [1906] 2 K. B. at p. 640.

(d) See Chatterton v. Secretary of State for India, [1895] 1 Q. B. 191

(e) 3 & 4 Vict. c. 9, ss. 1, 2.

(f) 51 & 52 Vict. c. 64, s. 3.

(g) Wason v. Walter, L. R 4 Q. B. 73.

(h) Archbold, p. 1193.

public meetings of vestries, town councils, and similar bodies to which the public and newspaper reporters are admitted (i); (b) statements published (i), in discharge of a legal, moral, or social duty, such as characters given to servants (k) or (ii) in self-defence (1), or (iii) by reason of a common interest with the person to whom the communication is made (m).

Libel is a misdemeanour, punishable in the case of one who publishes a defamatory libel, knowing it to be false, by imprisonment not exceeding two years, and fine (n). But if the prosecution do not prove that the defendant knew it to be false, the punishment is fine or imprisonment not exceeding one year, or both (0).

Libel is one of the offences to which the Vexatious Indictments Act applies (p).

In cases of private prosecutions for libel, if the defendant is acquitted the Court may order the prosecutor to pay the whole or any part of the costs incurred in the defence (q).

The law as to criminal proceedings for libel by husband or wife against the other is not altered by the Married Women's Property Act, 1882 (r), which enables criminal proceedings to be taken by a wife against her husband, and vice versa, for the protection and security of the wife's separate estate or the husband's property. A prosecution for libel is not for the protection and security of such property, and therefore a wife cannot prosecute her husband or give evidence against him upon a prosecution for a personal libel upon herself (s).

(i) 51 & 52 Vict. c. 64, s. 4. The privilege is lost if the defendant has, after request, refused or neglected to insert in the same paper a reasonable statement contradicting or explaining the report.

(k) Child v. Afleck, 9 B. & C. 408.

(1) Coward v. Wallington, 7 C. & P.

(m) Hunt v. Great Northern Railway Co. [1891] 2 Q. B. 189; 60 L. J. Q. B. 498.

(n) 6 & 7 Vict. c. 96, s. 4.

(0) 6 & 7 Vict. c. 96, s. 5; v. Boaler v. The Queen, [1888] 21 Q. B. D. 284; 57 L. J. M. C. 85.

(p) v. p. 330.

(q) 8 Ed. VII. c. 15, s. 6, sub-s. 2.

(r) Re-enacted by the Larceny Act, 1916, v. p. 203.

(s) R. v. The Lord Mayor of London, [1886] 16 Q. B. D. 772; 55 L. J. M. C. 118.

FORCIBLE ENTRY OR DETAINER.

Forcible entry is the violent taking, forcible detainer is the violent keeping possession of lands and tenements with menaces, force, and arms and without the authority of the law. It is no defence to a charge of forcible entry that the accused has been unjustly turned out of possession (t), inasmuch as he has his remedy at law, and the fact of his right does not diminish the breach of the peace. If there be not employed such force or menaces as are calculated to prevent resistance, it is a mere trespass (u).

The offence is a misdemeanour, punishable by fine and imprisonment. The Court may by a writ of restitution summarily restore possession to the person entitled, unless the defendant has been permitted to remain quietly in possession for three years previously to the finding of the indictment (w).

(t) 5 Rich. II. c. 8; v. Archbold, p.

(u) R. v. Smyth, [1832] 5 C. & P. 201. See also Lows v. Telford, [1876] 1 A. C. 414; 45 L. J. Ex. 613; Milner v. Maclean, [1825] 2 C. & P. 17: R. v. Child, [1846] 2 Cox, C. C. 102; Edwick v. Hawes, [1881] 18 Ch. D. 199. (w) v. 31 Eliz. c. 11; 21 Jac. I. c. 15.

CHAPTER VI.

OFFENCES AGAINST PUBLIC TRADE.

SMUGGLING.

SMUGGLING is the importing or exporting either (a) goods without paying the legal duties thereon, or (b) prohibited goods. The existing law on the subject is contained chiefly in the Customs Consolidation Act, 1876 (a).

The statute subjects to forfeiture the goods which have in any way been the subjects of smuggling practices. Persons taking goods out of a warehouse without paying the duties are declared to be guilty of a misdemeanour (b).

Shooting at vessels belonging to the navy or revenue service, or shooting at or wounding an officer engaged in the prevention of smuggling, is declared to be a felony punishable by penal servitude for not less than three years (c).

To procure persons to assemble for the purpose of smuggling is punishable by imprisonment for twelve months; and if any person so offending be armed or disguised, or being so armed or disguised be found with any goods liable to forfeiture within five miles of the sea coast or of any navigable river, he is punishable by imprisonment with hard labour to the extent of three years (d). To assemble (to the number of three or more persons) for the purpose of smuggling is punishable by a penalty of not less than £100 or more than £500 (e).

(a) 39 & 40 Vict. c. 36. (c) Ibid. s. 193.

(b) Ibid. s. 85.

(d) Ibid. s. 189.

(e) 42 & 43 Vict. c. 21, s. 10.