Penfold v Westcote [1806] 2 B&P (NR) 335
Libel; imputation of crime; words capable of defamation
(270 words)
Facts
The defendant said the following about the claimant: “Why don’t you come out you blackguard rascal, scoundral, Penfold, you are a thief”. The trial judge directed the jury that it was for the defendant to prove that by using the word ‘thief’ he did not imply the need to charge the claimant with a felony. The jury found in favour of the claimant.
Issues
The defendant appealed to have the verdict set aside. He argued that the words and expressions surrounding the word ‘thief’ proved that the he did not intend to impute felony – he only used the word in the heat of the moment. He further claims that no evidence was put forward, which would have shown that anyone else understood the word ‘thief’ to imply the need to charge the claimant with a crime.
Decision/Outcome
Unless the jury found that the defendant intended to imply that the claimant was to be charged with theft, it should not have found in favour of the claimant. The jury should consider the manner in which the words used were pronounced and also other circumstances, which could explain the meaning of the word. If the jury found that the word ‘thief’ was merely used as general abuse, they should have dismissed the claimant’s case. All in all, however, if someone calls another a ‘thief’ together with other names of general abuse (that would not normally impute crime), then – in the absence of any evidence to support any other meaning of the word ‘thief’ – the jury can find for the claimant as the word ‘thief’ is actionable in itself as imputing theft.
Updated 19 March 2026
This article summarises the 1806 case of Penfold v Westcote [1806] 2 B&P (NR) 335, a historic common law authority on slander and the actionability of words imputing criminal conduct. The case summary remains accurate as a statement of the historical legal position.
Readers should note, however, that the law of defamation in England and Wales has been substantially reformed since this case was decided. The Defamation Act 2013 now governs most defamation claims and introduced significant changes, including the serious harm threshold in section 1 (which requires a claimant to show that publication has caused or is likely to cause serious harm to reputation), and the abolition of the presumption in favour of jury trial. The distinction between libel and slander, and the historical rule that certain words (including imputations of criminal conduct) were actionable per se in slander, remain part of the common law but must now be read alongside the 2013 Act. This case therefore retains value primarily as a foundational authority illustrating early judicial reasoning on the meaning of words and the role of the jury in defamation, rather than as a direct guide to how a modern claim would be analysed.
