Charles Roger Richardson v Lyndon D Raynor (Police Sergeant)

JurisdictionBermuda
Judgment Date12 August 2011
Date12 August 2011
Docket NumberCivil Jurisdiction 2011 No. 35
CourtSupreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2011 No. 35

In the Matter of section 15(3) of the Bermuda Constitution Order 1968

and in the Matter of an Application on behalf of the Defendant in Magistrates' Court Case Number 10CR01221

BETWEEN:
Charles Roger Richardson
Applicant
and
Lyndon D Raynor (Police Sergeant)
Respondent

Mr C Attridge for the Applicant

Ms C Clarke for the Respondent

Mr M Douglas for the Attorney-General

The following cases were referred to in the judgment:

Royal Gazette v Attorney General and Commissioner of Police [1982] Bda LR 2

Attride-Stirling v Attorney GeneralBDLR [1995] Bda LR 6

Worme v Commissioner of PoliceUNK [2004] UKPC 8

Hall v Bermuda Bar Council [1983] Bda LR 1

Raichinov v BulgariaHRC (2008) 46 EHRR 28

Gavrilovici v Moldova ECHR Application 25264/05

Grobbelaar v News Group NewspapersUNK [2002] UKHL 40

Gleaves v Insall [1999] EWHC Admin 215

Gleaves v DeakinELR [1980] AC 477

Lucas v RUNK [1998] 3 LRC 236

Abstract:

Defamation - Facebook posting - Freedom of expression - Burden of proof - Whether criminal defamation is in violation of the Constitution

JUDGMENT of Kawaley, J

Introductory

1. The present case arises out of the interaction between statutory criminal defamation provisions enacted in Bermuda at the beginning of the 20th century and communications with "friends" through the medium of a global internet-based social network known as Facebook, which was established at the beginning of the 21st century. In the intervening years the fundamental right of freedom of expression was accorded both: (a) domestic legal protection under section 9 of the Bermuda Constitution with effect from February 21, 19681; and (b) international legal protection when article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), together with the Convention as a whole, was applied to Bermuda by the United Kingdom Government on September 12, 19672.

2. On January 7, 2011, the Applicant was charged in Magistrates' Court on an Information laid by the Respondent with the summary offence of unlawfully publishing defamatory matter concerning Police Inspector C. The matter was adjourned to January 14, 2011 when the Applicant's counsel requested the Senior Magistrate to refer the question of whether Part XII of the Criminal Code and the Applicant's prosecution contravened his rights under section 9(1) of the Constitution. The Learned Senior Magistrate referred the matter to this Court pursuant to the provisions of section 15 (1)-(3) of the Constitution, which provide as follows:

"Enforcement of fundamental rights

15 (1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction-

(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section,

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.

(3) If in any proceedings in any court established for Bermuda other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the foregoing provisions of this Chapter, the court in which the question has arisen shall refer the question to the Supreme Court unless, in its opinion, the raising of the question is merely frivolous or vexatious…" [emphasis added]

3. The application arose in the following way. The Applicant, a prominent criminal defence lawyer of African-Bermudian descent, who might fairly be regarded as too old to be described as young but too young to be described as middle-aged, was conditionally discharged for simple possession of a small quantity of cannabis found in

his residence following the execution of his search warrant on August 11, 2009. He was initially charged in Magistrates' Court on or about March 31, 2010, and discharged on the same date. On or about May 11, 2010, he appeared in Court to seek a modification of the terms of his conditional discharge. The Police Inspector who led the search of his residence attended Court on both occasions. On the date of the second Court appearance, the Applicant posted the offending remarks about the Police Inspector on his Facebook page.

4. At the directions hearing before this Court, the following two issues were defined as requiring determination:

"(a) whether section 214(1) of the Criminal Code Act 1907 ('the Code') taken in its statutory context on its face contravenes section 9 of the Constitution; and

(b) whether the application of section 214(1) of the Code taken in its statutory context to the Applicant on the facts of the present case contravene his rights under section 9 of the Constitution."

5. It was also directed that the second issue would be dealt with on the basis of the Crown's Witness Statements or an Agreed Statement of Facts. In the event, only Witness Statements were filed and the Respondent conceded that the application of section 214(1) to the Applicant would interfere with his section 9(1) rights while the Attorney-General took no firm position as regards this point, ultimately leaving this issue with the Court. The effect of the Respondent's concession is that I am able to analyse the important legal issues raised by the present application on a principled basis with a mind uncluttered by any human considerations about the implications of the decision for the Applicant personally. Because the Attorney General has not formally conceded the unconstitutionality of the decision to prosecute the Applicant on the facts of the present case, in my judgment it would be inappropriate to simply grant an order in terms without ensuring that there is a reasoned basis for so doing.

6. The present application was listed for hearing in open Court and written submissions were duly filed. In the event, all counsel agreed that an oral hearing was not required and requested the Court to render a decision based on the written submissions alone. As the second of the two issues is conceded by the Respondent and not positively challenged by the Attorney-General, it is to that issue that I will first turn. I will deal with the full merits of the point both in an attempt to provide some guidance for future cases and so as to ensure that it cannot be suggested that the Applicant as a member of the Bar has been "let off" for reasons unrelated to the merits of his case.

Does the application of section 214(1) of the Criminal Code to the Applicant on the facts of the present case interfere with his section 9 (1) of the Constitution rights?

The fundamental right protected by section 9(1)

7. Section 9 of the Bermuda Constitution provides as follows:

"Protection of freedom of expression

9 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) that is reasonably required-

(i) in the interests of defence, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputations and freedom of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments; or

(b) that imposes restrictions upon public officers or teachers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(3) For the purposes of paragraph (b) of subsection (2) of this section in so far as that paragraph relates to public officers, 'law' in that subsection includes directions in writing regarding the conduct of public officers generally or any class of public officer issued by the Government."

8. Section 9(1), in very broad terms, proclaims and protects "freedom of expression", which is non-exhaustively defined as including "freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence". Section 9(2) then proceeds to demarcate the extent to which this fundamental right may be lawfully restricted by anything either (a) contained in any law, or (b) done under the authority of any law. It is the latter form of restriction, the effect of the application of the provisions of section 214(1), which is of present concern. However, irrespective of what form of restriction of freedom of expression is in issue, the law on its face or the law in action, the restriction can only validly interfere with the fundamental rights protected by subsection (1) of section 9 if the...

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