Royal Gazette Ltd v Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 27 August 1982
• Date: 27 August 1982
• Docket Number: Civil Jurisdiction 1982 No. 177
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 1982 No. 177

Civil Jurisdiction 1982 No. 179

In the Matter of the Bermuda Constitution Order 1968, ss 7, 9 and 15

And In the Matter of s 464 of the Criminal Code and a Search Warrant dated 12 March 1982

And In the Matter of s 214(2) and s 222 of the Criminal Code

BETWEEN:

The Royal Gazette Limited, David Leslie White, Margaret Roberta Scammell

Applicants

and

The Attorney General

First Respondent

The Commissioner of Police

Second Respondent

Mr A Hoolahan, QC and Mr K Unwin for the Applicants

Mr S Froomkin, QC for the Respondents

The following cases were referred to in the judgment:

Ghani v JonesELR [1970] 1 QB 696

Goldsmith v Pressdram LtdUNK [1977] 2 All ER 557

Karuma v RELR [1955] AC 197

British Steel Corp v Granada TelevisionUNK [1981] 1 All ER 417

Senior v HoldsworthUNK [1975] 2 All ER 1009

Maharaj v Attorney General of Trinidad and Tobago No. 2UNK [1978] 2 All ER 670

Minister of Home Affairs v FisherUNK [1979] 3 All ER 21

Abstract:

Originating summons claiming declaration that search warrant issued against plaintiffs invalid - Originating summons claiming that order granting Attorney General leave to issue criminal proceedings for defamation against plaintiffs should be set aside - Search warrant need not disclose any offence - Police need to produce seized documents upon application for leave to prosecute - Publication of secret material is not criminal per se

JUDGMENT of Astwood, CJ

1. These two summonses were brought pursuant to the jurisdiction conferred on this Court under section 15 of the Constitution of Bermuda which is set out in Schedule 2 to the Bermuda Constitution Order.

2. In summons No 177/82 the Applicants seek a declaration that the search warrant issued on 12 March 1982 pursuant to an Order of Worshipful Roger Garfield improperly and unlawfully subjected the Applicants to a search of their person and property and to the entry of others on their premises and that the said Order for search warrant was not reasonably justifiable in a democratic society, and is accordingly in contravention of section 7 of the Bermuda Constitution

3. In summons No 197/82 the Applicants seek an order that the Order of Mr Justice Robinson dated 25 June 1982 granting leave to the Respondent to commence criminal proceedings against the Applicants under section 214(2) of the Criminal Code be set aside on the grounds that the said Order hinders the Applicants in the enjoyment of their freedom to impart in the Royal Gazette information without interference and/or that the said Order was not reasonably justifiable in a democratic society, and that the said Order is accordingly in contravention of section 9 of the said Bermuda Constitution, and/or for such Order and /or directions as the Court may consider appropriate for enforcing or securing the enforcement of the provisions of section 15 of the said Constitution. And that the costs of this application be provided for.

Background

4. On 12 May 1982, Detective Sergeant Alastair H Brown and other police officers executed a search warrant, issued by a Magistrate on that day, on the premises of the 1st Applicant. The police officers, in executing the warrant, searched the office of the 2nd Applicant, his desk, files, wallet and other personal effects. The 2nd Applicant is employed as the Editor of the 1st Applicant on the premises. Further, in executing the search warrant, the police officers searched the 3rd Applicant's desk, handbag and personal effects and seized from her 24 notebooks and other papers. 23 of these notebooks have now been returned to this Applicant. The 3rd Applicant is employed by the 1st Applicant as a senior journalist.

5. On 25 June 1982, a Judge of this Court granted leave to the Attorney General to commence a criminal prosecution against the three Applicants for the offence of unlawfully publishing defamatory matter, contrary to section 214(2) of the Criminal Code of Bermuda, leave having been sought by the Attorney General pursuant to the provisions of section 222 of the Criminal Code. I can only imagine that leave was granted to prosecute the 3rd Applicant since she was the author of the alleged defamatory article and, therefore, by virtue of the provisions at section 27 of the Criminal Code she would bear equal criminal responsibility for the offence along with the other two Applicants. The evidence against this Applicant is very tenuous.

6. The alleged defamatory matter concerned an article appearing in the Royal Gazette of 7 May 982 - a publication of the 1st Applicant. The article was headed in bold print "Lawyer Julian Hall is now disbarred".

7. After the Order of the Judge was granted on 25 June 1982, the three Applicants appealed the Order to the Court of Appeal. The appeal was dismissed by that Court for want of jurisdiction. The applicants now seek to attack the Order of 25 June 1982, granted by a Judge of this Court, by the route of the Constitution, to try to accomplish what failed before the Court of Appeal by the appellate process.

Some relevant provisions of Bermuda law

8. Sections of the Criminal Code:

"27. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence; and …"

"205. (1) …

(2) Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession, occupation or trade, or by which other persons are likely to be induced to shun, or avoid, or ridicule, or despise him, is called defamatory, and the matter of the imputation is called defamatory matter.

(3) …

(4) Any person who, by spoken words or audible sounds, the speaking of such words or the making of such sounds in the presence and hearing of any person other than the person defamed, and, in the case of signs, signals, or gestures, the making of such signs, signals, or gestures, so as to be seen or felt by, or otherwise come to the knowledge of, any person other than the person defamed, and, in the case of other defamatory matter, the exhibiting of it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with view to its being read or seen by any person other than the person defamed."

"206. (1) The question whether any matter is or is not defamatory is declared to be a question of fact.

(2) The question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is declared to be a question of law.

(3) Whether any defamatory matter is or is not relevant to any other matter, and whether the public discussion of any subject is or is not for the public benefit, are declared to be questions of fact."

"207. It is unlawful to publish any defamatory matter unless such publication is protected, or justified, or excused, by law."

"212. It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made."

"214. (1) Any person who unlawfully publishes any defamatory matter concerning another person is guilty of a summary offence, and is liable to imprisonment for a term not exceeding twelve months,

(2) If the offender knows the defamatory matter to be false, he is liable on conviction on indictment to imprisonment for a term not exceeding two years."

"222. No criminal prosecution shall be commenced against the proprietor, or publisher, or editor, or any person responsible for the publication of, any periodical, for the unlawful publication of any defamatory matter contained therein, except by order of a Judge made after notice to the person accused, and after that person has had an opportunity of being heard in opposition to the application for the order."

"464. (1) If it appears to a magistrate or to a Justice of the Peace, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, building, vessel or place -

(a) anything with respect to which any offence under this Act or which is such that the offender may be arrested without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence; or

(d) any person as to whom there are reasonable grounds for believing that he is unlawfully at large; or

(e) any person who has committed any offence under this Act or which is such that the offender may be arrested without warrant,

then the magistrate or Justice of the Peace may issue his warrant directing a police officer or police officers named therein or all police officers to search such house, vessel, or place, and to seize any such thing or to arrest any such person, as the case may be, and to take it or him before a court of competent jurisdiction to be dealt with according to law. …"

9. Constitutional provisions

"1. Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:

(a) life...