Belated allegations of sexual abuse against Jimmy Savile have been accepted virtually without challenge as well-founded. Now Cyril Smith has been accused of indecent assault, once again when he is in no position to challenge the claims. Is this fair?
The law of defamation does not apply to the dead, meaning that even if relatives of the deceased can prove that a statement is wrong and libellous, they cannot issue proceedings to correct the impression given to the public.
Likewise since criminal proceedings cannot be brought against the dead, there is no legal boundary preventing the police or the media from publicly airing their views on the likely guilt of an individual once he no longer lives to give his side of the story.
Whilst freedom from legal constraints does seem to have allowed injured parties sufficient confidence to come forward in such cases, it is doubtful whether justice is served by such an open season. The public can be wildly misled and bereaved families have no way of correcting any false impression, even if this has been given maliciously.
Canada, New Zealand, Australia and Scotland have all reviewed their equivalent laws and recommended that a remedy be introduced for defamation of the dead, whilst the Faulks Committee recommended likewise when reviewing English laws over 35 years ago.
Evil though the alleged crimes of an individual may be, there is surely a case for moderation in the language used after his death, so that he may not be judged guilty without the opportunity for someone to plead his cause? In cases such as Savile’s the sheer weight of evidence may play a part, but unless at least some of that evidence is tried there is no way of ensuring that it is true.
And what of the criminal cashing in on his crime by defaming his dead victim? Without a right of recourse, families must suffer in silence whilst their loved one may be wrongly portrayed as complicit or worse. This very aspect is said to have prompted the Scottish review, available in full on the Scottish Government website here.
This is an area ripe for reform, both to reinforce the principles of natural justice, and to protect those who can no longer answer for themselves. In our age of rapid communication a person’s good name can be trashed within seconds. Can we afford to waive their rights just because they are dead?