Defame the dead? Be careful what you say about Cromwell
Views to this effect were expressed on at least two radio stations following the tragic death of Liam Lawlor in Moscow.
While the memory of every human being is cherished by his or her family, friends and loved ones, I think it would be outlandish to create a legal situation whereby lawyers could represent somebody in a case of alleged civil or criminal libel who is not in a position to give evidence or be cross-examined by defence counsel.
Unless of course our legal system can accept and accommodate evidence gleaned from a psychic medium ‘channelling’ the spirit of the deceased. I have an open mind on the merits of spiritualism and after-death communication, but I doubt very much that information received or transmitted in this manner would hold up in court at any time in the foreseeable future.
And there is the question as to whether the dead person would wish an action for defamation to be undertaken on their behalf. Again, the answer to that question could only be obtained by knocking on heaven’s door.
Apart from these difficulties, the mind boggles at what in this instance could truly be termed an appalling vista. The prospect of lawyers, acting on behalf of crackpots or political extremists, seeking to exonerate monstrous or controversial historical figures from a whole range of crimes and wrongdoings.
The history books would have to be rewritten. Centuries of slagging poor old Oliver Cromwell would come to an abrupt end. The man was never convicted in a court of law of committing war crimes in Ireland, and all his actions could be justified in the context of 17th century warfare, so any good lawyer could secure an apology for the deceased Lord Protector.
Eamon de Valera would have to receive an unreserved apology from Neil Jordan for the insinuation contained in the Michael Collins film that the Tall Fellow had a hand in the killing of the Big Fellow.
Al Capone was convicted of tax fraud only, so we could be in serious trouble for alleging his involvement in multiple murders and protection rackets.
Adolf Hitler could ‘argue’ through his legal representative that he has been a victim of both civil and criminal libel, given that his alleged involvement in many of the crimes attributed to him have never been proven in court.
Since he died before he could stand trial, would he not be entitled to the benefit of the doubt and a comprehensive, unreserved apology for many of the calumnious charges attaching to his legally untainted ‘good name?’
A better way of protecting the reputations of the dead is by ensuring that writers, historians, and journalists adhere to the highest possible standards of fairness and accuracy in recounting the lives of people who are no longer alive in the sense that most of us understand living. We do both them and ourselves an injustice when we seek to misrepresent what they did or stood for in their earthly lives.
We shouldn’t besmirch anyone’s good name... but neither, I believe, should we accord fine and unblemished reputations that are clearly undeserved to either the living or the dead.
John Fitzgerald
Lr Coyne Street
Callan
Co Kilkenny
