Minister for Telecommunications v Dwight Lambert

• Jurisdiction: Bermuda
• Judge: Gloster JA,Smellie JA,Clarke
• Judgment Date: 13 June 2020
• Neutral Citation: BM 2020 CA 12
• Court: Court of Appeal (Bermuda)
• Docket Number: Case No: Civ/2020/6
• Date: 13 June 2020

[2020] CA (Bda) 14 Civ

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS

ORIGINAL CIVIL JURISDICTION

THE HON. MRS. ASSISTANT JUSTICE BELL

CASE NUMBER 2016: No. 199

Dame Lois Browne-Evans Building

Hamilton, Bermuda HM 12

Before:

THE PRESIDENT, Sir Christopher Clarke

JUSTICE OF APPEAL Anthony Smellie QC

and

JUSTICE OF APPEAL Dame Elizabeth Gloster

Case No: Civ/2020/6

Between:

Minister for Telecommunications

Appellant

and

Dwight Lambert

Respondent

Mr Michael Taylor of the Attorney-General's Chambers for the Appellant

Mr. Peter Sanderson of Beesmont Law Ltd for the Respondent

Hearing date(s): 11 June 2020

APPROVED JUDGMENT

Gloster JA

Introduction:

1 This is an appeal by the defendant in the underlying action, the Minister Responsible for Telecommunications (“the appellant”), against the decision of the Honourable Assistant Justice Kiernan Bell (“Bell AJ” or “the judge”), following a quantum hearing, in which the judge awarded compensatory and vindicatory damages of $125,000.00 to Dwight Lambert, the plaintiff in the underlying action and the respondent in this appeal (“the respondent”), by way of redress for contravention of his rights under the Bermuda Constitution pursuant to section 15 thereof.

2 Section 15 of the Constitution provides so far as material:

“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 The judge's judgment (“the Bell judgment”) was dated 21 August 2019 and it followed a judgment on liability of Hellman J (“the Hellman judgment”) dated 24 November 2017 given in the Supreme Court of Bermuda Civil Suit 2016: No. 199.

4 Mr Michael Taylor, Crown Counsel, appeared for the respondent and Mr Peter Sanderson appeared for the respondent on the appeal. Both counsel also appeared below. The Court is grateful to them for their written and oral submissions.

Factual and procedural background

5 In 2006 the respondent imported 29 pornographic Digital Video Discs (DVDs) into Bermuda in a series of shipments. Some of the DVDs showed graphic sexually explicit photos of naked men displayed on the casings, but some were encased in paper envelopes and did not have covers with photos. The DVDs were seized and viewed by H.M. Customs; some of the photos included graphic sexually explicit acts between men, including oral copulation and anal penetration. H.M. Customs interviewed the respondent under caution. He was advised of his rights to ask legal counsel to attend, which he declined. The respondent was never detained or arrested at any time.

6 In 2007 the respondent was charged with importing obscene material contrary to section 3 (1) (a) of the Obscene Publications Act 1973 (“the 1973 Act”) and was prosecuted in the Magistrates' Court in open court. The respondent was acquitted after a trial on the basis that the material was not obscene. The DVDs were returned to the respondent. No constitutional issues under section 15(3) of the Bermuda Constitution were referred to the Supreme Court from the Magistrate's Court.

7 In 2013 the respondent, as plaintiff in Suit 2013: No. 47, brought an action by writ against three defendants; the Director of Public Prosecutions (“the DPP”); the Bermuda Broadcasting Commissioners (“the Commissioners”); and the Minister responsible for Telecommunications (the appellant). The indorsement of claim on the writ alleged negligence and/or breach of statutory duty. As was common ground, the claim contained no allegations of malice or homophobic motivation.

8 In an ex tempore judgment dated 11 June 2014, the Honourable Chief Justice, Ian Kawaley, struck out the respondent's action against all three defendants.

9 The following paragraphs in the ex tempore judgment of Kawaley CJ are relevant by way of general background:

• “17. …. So the broad picture, and the question of the way in which the Act interferes with the freedom of expression, which is protected by section 9 of the Constitution, is something that might be explored in the concept of an application for relief under section 15 of the Bermuda Constitution”.

and

• 31. Mr. Smith sought to persuade the Court to afford the Plaintiff the opportunity to amend, to add a new cause of action in malicious prosecution. In my judgment, there is no reasonable basis for believing that any genuine cause of action for malicious prosecution can be formulated. Generally, the Court takes a liberal attitude towards amendments but in this particular case we are concerned with the events that happened approximately seven years ago and the notion of a malicious prosecution claim being formulated against a public prosecutor, when there has been no hint of any malice asserted by the Plaintiff before, really beggars belief.

• 33. Having said that, I do have considerable sympathy for the Plaintiff's general position. It does appear to me to be the case that the way in which the obscene publications are currently dealt with under the law does leave room for prosecutions to be launched in circumstances of doubt, where clearer and more modern rules through regulations might well reduce the room for such doubt. And the courts should not really be exercising the function of policy-maker. The courts should be deciding prosecutions under the Act where it is clear that prosecutions should be laid.

• 34. it does appear to me, admittedly on the basis of very limited information and a very cursory analysis of the Act and the only regulations that appear to be passed under it, that the Plaintiff's central grievance that the law is not up to date does have some substance to it.

• 35. Unfortunately, the particular legal route that the Plaintiff has sought to channel those grievances through has no merit. And it is for these reasons that the claim is stuck out.”

10 The respondent sought leave to appeal against the strike out, but leave was refused by the Court of Appeal.

11 On 18 May 2016, the respondent filed an Originating Summons (Constitutional application 2016: No 199) against the same three Defendants; the Commissioners, the Appellant and the DPP (“the constitutional action”). He claimed that the 1973 Act:

• 1. was “a content based blanket restriction on freedom of expression”;

• 2. that it lacked the precision required by the Bermuda Constitution when a statute regulates the content of expression and that it was also arbitrary in application, ill-defined and misunderstood; and

• 3. that it should be read in line with the Constitution.

12 Accordingly, the respondent sought:

• (a) “a declaration as to whether the 1973 Act was void [unconstitutional] as of 2007, the year of his being charged and placed on trial”

  [see paragraph 13 of the respondent's Originating Summons]; and

• (b) “declaratory relief as to whether the Bermuda Broadcasting Commissioners, the Minister for Telecommunication and the Director of Public Communications [Prosecutions] are liable for any damages”;

  [see paragraph 14 of the respondent's Originating Summons.]

13 The constitutional action was dealt with in two parts; the constitutionality of the offences under the 1973 Act being considered first, followed by the question of quantum of any redress for constitutional infringements being determined at a separate hearing should that be necessary.

14 Hellman J heard the first part on 6 November 2017 and delivered his judgment (the Hellman judgment as defined above) on 24 November 2017. Hellman J determined that the respondent's constitutionally protected rights had been breached and granted him the following declaration at paragraph 69:

“Pursuant to section 15 of the Constitution that as at the date of his prosecution the offences involving obscenity contained in section 3 and 3A of the 1973 Act breached the right to a fair hearing in section 6 1 of the Constitution and the right to freedom of expression in section 9 of the Constitution in that a person thinking of committing an action which was potentially criminalized by either of those sections could not reasonably have foreseen whether the definition of obscenity in section 2(1) of the 1973 Act covered articles portraying sex in a manner which was explicit but was without any additional features which would render the activity portrayed degrading or humanizing.”

There does not seem to have been any order reflecting the terms of the Hellman judgment. This is to be deplored. There should have been an order setting out the terms of the declaration, and consequential directions for the trial of redress issues.

15 The Hellman judgment fully canvassed the law on obscenity. In deciding whether obscenity was defined with sufficient precision in section 2 of the 1973 Act, Hellman J adopted the reasoning of the European Court of Human Rights in Muller v. Switzerland [1991] 13 EHRR 212, which was a case where the complaint had...