Director for Public Prosecutions v Clarke

• Jurisdiction: Bermuda
• Judge: Kay JA,Bell JA,Smellie JA
• Judgment Date: 21 June 2019
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2019 No 5
• Date: 21 June 2019

[2019] Bda LR 46

In The Court of Appeal for Bermuda

Before:

Kay JA, Bell JA, Smellie JA

Civil Appeal 2019 No 5

Between:

Director for Public Prosecutions

Appellant

and

Cindy Clarke

Respondent

Mr B Adamson for the Appellant

Mr M Pettingill and Ms V Greening for the Respondent

The following cases were referred to in the judgment:

Cases

R (on the application on Willford) v Financial Services Authority [2013] EWCA Civ 674

Porter v Magill [2001] UKHL 67

R v Chief Constable of Merseyside Police ex parte Bennion [2001] IRLR 442

R v Secretary of State for Trade ex parte Perestrello [1981] 1 QB 19

Disciplinary proceedings — Apparent bias — Gross misconduct — Procedural matters — Anonymisation — Open justice — Doctrine of necessity

JUDGMENT of Kay JA

Introduction

1. In this unfortunate litigation, the opposing parties are the Director of Public Prosecutions and the Deputy Director of Public Prosecutions (hereinafter referred to as “the Director” and “the Deputy”). The dispute relates to the disciplinary proceedings initiated by the Director against the Deputy. The allegations are set out in a Statement of Alleged Disciplinary Offences dated 12 April 2019. They assert gross misconduct. The details are not our concern; this appeal concerns procedural and not substantive matters.

2. The Deputy commenced proceedings in the Supreme Court by way of an application for judicial review of the Director's conduct of the disciplinary proceedings. In part, she based her claim on apparent bias. To that extent, she succeeded in the Supreme Court. On 17 May 2019, Assistant Justice Riihiluoma found that there was apparent bias on the part of the Director, and he remitted the next stage of the disciplinary proceedings to the Permanent Secretary of the Ministry of Legal Affairs (“the Permanent Secretary”). The Director now appeals against that decision.

3. Before turning to the substantive appeal, I must first refer to a hearing which took place in this Court on 3 June 2019, when we considered an application by the Deputy for an Order that the hearings in this Court be subject to anonymisation and in camera restrictions. We refused that application and I now provide the reasons for that decision.

Anonymity and Privacy

4. The hearings in the Supreme Court took place under conditions of anonymity and privacy, the judge having acceded to an application for such protection by the Deputy.

5. Open justice is a fundamental principal of the judicial process. It is required, subject to limited derogations, by sections 6(9) and 6(10) of the Bermuda Constitution Order 1968, which provides:

“(9) All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.

(10) Nothing in subsection (9) of this section shall prevent the court from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court—

(a) may be empowered by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings…”

6. These provisions reflect the approach of the common law, namely, that open justice is the rule, but there must be exceptions in circumstances where publicity would itself be productive of injustice.

7. In the Supreme Court the judge explained his decision to depart from open justice in this brief passage. At paragraph 28 of the judgment he says:

“[28] Public service disciplinary proceedings are conducted in private. If this matter were to be referred to the Chief of the Civil Service that adjudication would be conducted in private. I do not believe it appropriate to interfere with this privacy regime by making these proceedings or this judgment public. I therefore continue the Anonymity Order made on 18 April 2019.”

8. Perhaps surprisingly, the judge made no reference to R (on the application on Willford) v Financial Services Authority[2013] EWCA Civ 674, upon which he had received submissions. In Willford, which was also concerned with an application for Judicial Review in the context of disciplinary proceedings, that were taking place in private, Moore-Bick LJ said at para 9:

“[9] The question, then, is whether in those circumstances it is strictly necessary in the interests of justice to anonymise and redact our judgments in order to protect the Respondent's identity. In my view it is not. The redactions proposed by counsel for Mr Willford are extensive and go to the heart of the judgments. The anonymisation is, of course, complete. The principle of open justice requires that the court's judgment should be published in full unless there are overriding grounds for not doing so. Although the FSA disciplinary proceedings were private, once the Respondent stepped outside those proceedings, whether by referring the matter to the Upper Tribunal or by making a claim for judicial review, he brought the matter into the public forum where the principle of open justice applies. That may happen in other contexts. Parties to arbitration proceedings, for example, are entitled to have the confidentiality of those proceedings maintained, but if one party invokes the assistance of the court, perhaps by appeal or by an application to set aside the award, the court will not normally take steps to preserve the confidentiality of the proceedings or their subject matter.”

9. How then does Mr Pettingill seek to distinguish the present case from the general principle as applied in Willford? First, he submits that special considerations arise in a small jurisdiction such as Bermuda. For my part, I do not accept that the size of the country requires the public interest in open justice to be modified. The constitutional provision does not suggest that it does.

10. Secondly, he points to the difference in language between sections 6, 9 and 10 of the Bermuda Constitution, and the corresponding provision in the United Kingdom Human Rights Act 1998. The former permits exclusion where it is “necessary or expedient in circumstances where publicity would prejudice the interests of justice”. The Human Rights Act 1998, on the other hand, refers to “the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. I accept that “necessary or expedient” are words more permissive that “strictly necessary”. However, both formulations are aimed at exceptionality “where publicity would prejudice the interests of justice”. In...