Mr. Eddy:

Counsel said Mr. Crowley asked for a new trial on a number of grounds that were connected primarily with the Judge's summing-up. At the trial Mr. Crowley was in the witness box for two days. He said categorically that he did not practise black magic, that no baby disappeared, and that nobody was frightened of him.

Mr. Eddy said years before Mr. Crowley had written things that would deeply offend the sense of decency of most ordinary people, and he was cross-examined at great length about these. Neither they, nor the cross-examination based upon them, had anything to do with the plea of justification. Nor were they relevant to any question of general reputation. They could afford the jury no guidance as to incredibility, and it was suggested this feature of the case was only introduced to create prejudice.

At the trial, evidence was given for Messrs. Constable by Mrs. Betty Sedgwick [Betty May], who purported to describe a visit to Cefalu. She had written a book, "Tiger Woman," and she had to admit that the principal incident in it was "fiction." No evidence was called to show that any baby had disappeared, mysteriously or otherwise, or that the inhabitants of Cefalu were frightened of Mr. Crowley.

While counsel was opening the case for Miss Nina Hamnett, added Mr. Eddy, the jury were seen to be whispering together. They were told they could not stop the case without hearing counsel for Mr. Crowley.

"In the circumstances," urged Mr. Eddy, "it was vital that the jury should receive clear directions as to the issues they had to try, and the burden of proof, and it was not less vital that they should receive directions as to the effect, if any, that they should give to the plaintiff's cross-examination.

"I regret that it should be necessary for me to criticize in any way the Judge's conduct of the trial, yet at a time when the jury were in real need of assistance they received what was in no sense a proper summing-up.

The hearing is adjourned until 7 November.

Day 2 (7 November 1934)

Mr. Eddy:

Mr. Eddy, continuing his argument for the appellant, said that what was complained of fell under two heads:—(1) summing-up; and (2) the cross-examination of Mr. Crowley. He submitted that a plaintiff was entitled to a verdict from the constitutional tribunal, which was a properly directed jury. The jury were told, quite rightly, that it was for the defendants to prove justification, but there was not a word in the summing-up about the evidence or the absence of evidence on all important points. Nor was there any reference to the prolonged cross-examination of Mr. Crowley. Part of the cross-examination was no doubt directed to the plea of justification, but a very large portion of it was wholly irrelevant to that plea.

Some people practised what was called White Magic; others practised what was alleged to be Black Magic. Mr. Crowley said that there was a vital difference between the two.

Lord Justice Greer:

That is irrelevant. If a special meaning was to be put on the words "Black Magic" it ought to have been pleaded as an innuendo, and it was not.

Mr. Eddy:

Mr. Eddy said that what the plaintiff stated was that it was common knowledge what Black Magic was, and that it had been known for centuries as something foul; whereas White Magic was something in which he had been interested, the object of which was to raise humanity to a higher spirituality.

Lord Justice Greer:

No ordinary persons knew the difference between White Magic and Black Magic. I should have thought that they were both nonsense.

Mr. Eddy:

Mr. Eddy.—I am not suggesting otherwise.

Continuing, counsel referred to the books which Mr. Crowley had written. Besides those criticized by the trial Judge, Mr. Crowley had written many beautiful things. He had written about 50 hymns.

Lord Justice Roche:

Do you complain of the accuracy of what the Judge said with regard to the contents of some of the books?

Mr. Eddy:

Mr. Eddy replied that beyond all question there were many things to which any decent person would very properly object. He (counsel) did not object to the Judge holding the views he expressed.

Lord Justice Roche:

Do you deny that the expression is accurate?

Mr. Eddy:

Mr. Eddy said that he made no submission with regard to whether it was accurate or not.

Lord Justice Greer:

I suppose the references to newspapers in the cross-examination were put in to show that the plaintiff was a man whose reputation was valueless.

Mr. Eddy:

That was undoubtedly the object, but the suggestions in the main were dealt with and refuted by Mr. Crowley.

Counsel contended that there was no direction on the question of libel or no libel. He submitted that the plaintiff was entitled to general damages without proving his actual reputation or any actual damage: see Hobbs v. Nottingham Journal, Limited (45 The Times L.R., 328, at p. 330; [1929] 2 K.B., 1, at p. 17); Tripp v. Thomas (3 B. and C., 427); and Ratcliffe and Evans (8 The Times L.R., 597; [1892] 2 Q.B., 524).

Mr. Hilbery:

Mr. Malcolm Hilbery, for the respondents, the publishers, and the printers, said that this was a case in which there could not be an order, for a new trial without a tragic miscarriage of justice. The plaintiff's case was that he had been libeled by the words complained of. In his pleadings Mr. Crowley did not aver that the words complained of were meant or were understood to mean that he had murdered any baby. [Counsel for Mr. Crowley yesterday said that the alleged libel also stated that one day a baby was said to have disappeared mysteriously, that Mr. Crowley's case was that that plainly meant that he had killed the child by means of Black Magic, and that Mr. Crowley had denied that he had practised Black Magic or that any baby had disappeared.] It was not because anybody had been led to understand that Mr. Crowley had murdered a child that he had complained, said Mr. Hilbery. What Mr. Crowley complained of was the charge of practicing Black Magic, and that charge the defendants justified.

The case presented on behalf of the publishers and the printers was that this was no libel on the plaintiff at all, and it could be no libel in the sense of damaging his reputation, because out of his own works and out of his own mouth the defendants undertook to show that Mr. Crowley's work, whatever he called it, was a mixture of eroticism and sex in its most unpleasant and widest signification. He (counsel) would show that that was established out of Mr. Crowley's own mouth. Having got the material out of him as showing his reputation, he (counsel) had also called evidence of a person who had been at Cefalu, which was clearly indicative of bestial rites at which Mr. Crowley acted as high priest. He (counsel) had put it to the jury that it was impossible for reasonable people to come to the conclusion that Mr. Crowley had been libeled.

On his confessions in the box and throughout his works Mr. Crowley had stood for the negation of what every decent and right-minded person had ever held to be either decent or sacred. From his earliest days he had written poems of every possible sexual perversion of which human beings had ever been guilty. Referring to one of the plaintiff's works, counsel said that it was stated to be an old work, but it was still obtainable at the time of the trial. More than that, it had been brought up to date by a volume of "Confessions" [The Confessions of Aleister Crowley] he said that "my admirers have in consequence of the book regarded me as addicted to every sort of abominable vice." That was what he had had to say of his reputation with his admirers.

When he had a house in Scotland he worked on his magic so hard that, in broad sunlight, the thronging spirits made it completely dark to him, and the place became so haunted that the sturdy natives would not go along the road.

Lord Justice Greer:

That sounds very medieval.

Mr. Hilbery:

It was said, continued counsel, that the distinction between White Magic and Black Magic was that, in the former, the spirits came from the upper air and in the latter they came from the nether regions.

The hearing is adjourned until 8 November.

Day 3 (8 November 1934)

Mr. Hilbery:

Mr. Hilbery, continuing his argument on behalf of the publishers and the printers, said that their case at the trial was that the statement complained of was no libel. It was not defamatory of Mr. Crowley, nor was it something which could be considered by reasonable people as damaging his reputation having regard to what his reputation was.

Until Mr. Crowley went into the witness-box no one thought of the distinction between Black Magic and White Magic. When the distinction was made the line of the defence was that whether Mr. Crowley’s magic was Black Magic or White Magic it was the magic which was affirmed in his writings.

Therefore it was said that the words complained of could not make ordinary people hold him in less esteem.

Lord Justice Greer:

Do you say that the Judge could have held that the words were not defamatory having regard to what you elicited din cross-examination?

Mr. Hilbery:

Yes.

Lord Justice Slesser:

I want to know whether it was part of the plaintiff’s case that the words complained of meant not only that he had practiced Black Magic, but that in consequence of his magic, a baby had disappeared?

Mr. Hilbery:

Mr. Eddy opened the case in that way.

Lord Justice Roche:

If the natural inference from those words was that a murder had been committed, I don’t know that they would have been followed by a reference to a goat. There would have been something about the police.

Lord Justice Greer:

The Judge seems to have told the jury that if, taking Mr. Crowley’s character into account, the statement complained did not defame him, it was no libel.

Mr. Hilbery:

Mr. Hilbery suggested that he was right. The plaintiff’s reputation was so bad that it was not worth anything. The statement complained of was not a libel on Mr. Crowley having regard to his reputation. In Sutherland v. Stopes (41 The Times L. R. 106; [1925] A. C. 47, at pp. 78, 79) Lord Shaw said that the plea of justification must not be considered in a meticulous sense, and that it was the sting of the libel which had to be justified although a defendant might fall short of justifying the actual words. Counsel also referred to a statement by Mr. Justice Cave in Scott v. Sampson (8 Q. B. D. 491, at page 503), where he said: “The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit.”

The statement complained of here did not say that Mr. Crowley killed a baby. Many people by conjuring might make a baby disappear.

Lord Justice Slesser:

Lord Justice Slesser.—I do not think it can be said that it would not be defamatory to say that by magic a man had made a baby disappear.

Lord Justice Greer:

A man might be extremely erotic and yet not be a man who would use his powers to injure an infant.

Mr. Hilbery:

It was obvious that that was not the meaning of the words.

Lord Justice Greer:

That was for the jury.

Mr. Hilbery:

Mr. Hilbery proceeded to read passages from Laughing Torso to show what went before and followed after the words complained of.

Lord Justice Roche

That seems friendly.

The feeling you are creating us that, though there may be something wrong with the summing up, it can be disregarded because there could be only one result to the trial.

Mr. Hilbery:

Any jury would be perverse if it came to any other conclusion.

Lord Justice Greer:

At the moment the law which commends itself to the Court is that this is a case in which we can say that, although the summing up might have been different, and perhaps would have been more satisfactory it if had been more detailed, yet we are inclined to come to the conclusion that the result would necessarily have been the same, however full the summing up.

Mr. O'Connor:

Mr. Martin O’Connor interposed to say that, in view of that intimation, he would not address the Court on behalf of Miss Hamnett.

Mr. Eddy:

Mr. Eddy, in reply, said that, although there was much to suggest that his client had practiced magic, there was a vital distinction between White Magic and Black Magic. That distinction was made plain both in the Encyclopedia Britannica and in Frazer’s Golden Bough. Also the Court might take cognizance of an Act of Parliament passed in 1735. It was because Mr. Crowley was said to have done something that he had been fighting against for years that he had brought his action. His position was that magic was black where the motive was bad and white where the motive was good.

Counsel submitted that the Court could not hold that there was no substantial miscarriage of justice. He referred to Bray v. Ford (12 The Times L. R., 119 [1896] A. C., 44).

JUDGMENT

Lord Justice Greer:

Lord Justice Greer, in giving judgment, said that the case had been very well argued. It was not free from difficulty, but they had come to the conclusion that, although there might be something to be said in favour of the view that the summing up was not as full as it ought reasonably to have been, the only possible result of the trial, having regard to the evidence and the admissions of a verdict for the defendants. However much the contentions of Mr. Eddy might have been repeated by the Judge the result would have been exactly the same. The plaintiff was cross-examined for a long time in the witness-box, and he had made admissions which were described by the Judge in his summing up as admission of the grossest kind he had heard in 40 years’ experience at the Bar and on the Bench. He said:—“Never have I heard such dreadful, horrible, blasphemous, and abominable stuff as that which has been produced by the man who describes himself as the greatest living poet.” That, however, did not relieve the Court of Appeal of the duty of considering what the position was at the time the jury intervened.

The plaintiff of some words used in a chapter in a book of anecdotes or autobiography written by a lady named Miss Hamnett entitled Laughing Torso. It was not right, said the Lord Justice, that words should be interpreted without their context.

He (the Lord Justice) regarded the statement as being capable of a defamatory meaning. But there could not be left out of consideration the fact that there was no innuendo pleaded. Therefore, the plaintiff could only treat those words without any innuendo, as having the ordinary meaning of English words.

The suggestion that the words complained of meant that the plaintiff had killed a baby seemed to be an extravagant interpretation of the words. The jury would not be likely to come to the conclusion that the words meant that by means of Black Magic the plaintiff had caused a baby to be killed. The case had been going on for about four days, and the evidence of the plaintiff had been concluded. Mr. Hilbery had cross-examined the plaintiff and had obtained admissions from him. Was it astonishing that the time came when the jury felt it was impossible for them to give a verdict for the plaintiff?

In the summing-up the Judge said that the plaintiff had to prove that his reputation had been damaged. That was not quite accurate. All that a plaintiff had to do in a libel action was to prove that a defamatory statement had been published about him and the law presumed the damage, and he would be entitled at least to nominal damages.

But it did not follow because there had been a misdirection in one respect that there ought to be a new trial. Order 39, rule 6, of the Supreme Court Rules applied to this case. Under that rule a new trial should not be granted on the ground of misdirection or other grounds specified in the rule, unless in the opinion of the Court of Appeal some substantial miscarriage of justice had been occasioned. A new trial ought not to be granted in this case, because, having regard to the evidence, the result of a new trial would be the same if the case came to be dealt with by another jury of ordinary human beings, and the parties ought not to be put to the expense of a new trial if it could only arrive at the same result. He had come to the conclusion that there was no substantial miscarriage of justice in this case, and the appeal must be dismissed.

Lord Justice Slesser:

Lord Justice: Roche:

Lord Justice Slesser and Lord Justice Roche agreed in dismissing the appeal.