Independent Publishing Company Ltd v Attorney General of Trinidad and Tobago & Anor (Trinidad and Tobago) [2004] UKPC 26

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 5 of 2003Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
Independent Publishing Company LtdAppellantAttorney General of Trinidad and Tobago & Anor (Trinidad and Tobago)Respondent
Before
Lord Bingham of CornhillLord HoffmannLord Walker of GestingthorpeLord CarswellLord Brown of Eaton-under-HeywoodLord MustillDate 6 June 2002
[1]:- Lord Bingham of Cornhill Lord Hoffmann Lord Walker of Gestingthorpe Lord Carswell Lord Brown of Eaton-under-Heywood [Delivered by Lord Brown of Eaton-under-Heywood ] These appeals raise fundamental questions both as to the reach of the Court's contempt jurisdiction at common law and as to the circumstances in which a claimant is entitled to constitutional redress under section 14 of the Constitution of Trinidad and Tobago (the Constitution). Before the issues can properly be identified, however, it is necessary to recount something of the background as well as the more immediate circumstances surrounding the appeals.[2]On 10 January 1994 four members of a family were brutally murdered as a result of which Dole Chadee (also called Nankissoon Boodram), a notorious drug lord, and nine others were charged with murder and on 30 September 1994, following the preliminary inquiry, committed to stand trial on 4 November 1994.[3]Both before and after the preliminary inquiry there was massive publicity about the case and in particular about Dole Chadee, publicity later to be described by Sharma JA as "sensational, unremitting, and scandalous". "The whole country", observed Sharma JA, "appeared to be riveted and obsessed with the pending trial and many commentators had dubbed it as 'the trial of the century'." Chadee in the result filed a constitutional motion complaining about the DPP's failure to put an end to this pre-trial publicity and contending that it had infringed his rights to due process and a fair trial. He was seeking either discontinuance or at least the postponement of his trial. In the event the application failed successively before the judge, before the Court of Appeal and before the Privy Council - see Boodram v Attorney General of Trinidad and Tobago [1996] AC 842 , where several examples of the prejudicial publicity are to be found. On dismissing the appeal, Lord Mustill, giving the judgment of the Board, said this, at pp 852-853 and 855:
"In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge for neutralising them will be insufficient to prevent injustice." "
The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution."[4]Following the Privy Council's decision (given on 19 February 1996) the trial was re-fixed for hearing on 10 June 1996. The publicity did not cease. A key witness, Clint Huggins, who had testified at the preliminary inquiry, was killed shortly after leaving protective custody in February 1996. Amongst the many daunting tasks facing the trial judge, Jones J, was the selection of an unbiased jury, a process which was to take from 13 June to 26 July and to involve the oral examination of each potential juror to see whether they were affected by the weight of adverse publicity. Many were held to be disqualified. All the accuseds' challenges were used. The jury pool had to be supplemented by "praying a tales".[5]Meanwhile there had been a dramatic development in the case. On 10 June 1996 counsel (Mr Peter Thornton QC for the ten accused and Mr Cassell QC for the State) saw Jones J in Chambers and told him that one of the accused, Levi Morris, had decided to plead guilty to the four counts of murder and testify against his co-accused in return for which his mandatory death sentence was to be commuted by Presidential pardon to one of life imprisonment. The pardon was conditional on Morris giving evidence for the prosecution in accordance with a statement taken from him on 4 June.[6]Mr Thornton then said that he would ask the judge in open court for an order that none of this should be reported for the time being. Were Morris not ultimately to give evidence in line with his fresh statement, prior publication of his change of position would have prejudiced the jury. The proposed order was "in order to secure a fair trial [and] that there should not be any further difficulty with juries" (assuming that counsel's imminent application "to stay the proceedings because of the adverse pre-trial publicity ... should be unsuccessful" - an application in the event made on 10 June and dismissed on 13 June). Mr Thornton told the judge:
"You have an inherent power to control the proceedings of your court at common law, inherent jurisdiction"
. Mr Cassell agreed and said that he did not resist the proposed order. He indicated however, that before opening the case for the prosecution he would be applying to the judge to rule on the admissibility of Mr Morris's evidence and the evidence of Mr Huggins' deposition since otherwise there would be no case to open.[7]Upon the adjournment of the hearing into open court, Jones J then made the order sought by counsel ("the 10 June order") in these terms:
"It is ordered that the media, both printed and electronic for the time being and until further order, refrain from publishing, referring to or commenting upon in any way the matters in this court which relate to the accused Levi Morris or Modeste, and in particular, to his plea or to the sentence imposed by this Court."
[8]Despite that order there appeared in the TNT Mirror newspaper on the morning of Friday, 14 June 1996, three articles respectively headlined "State has Bombshell Witness", "Remember Parmassar?" (Parmassar had similarly turned State's evidence in an equally sensational murder trial some twenty years earlier) and "Chadee's Cool Confidence", the combined effect of which would lead readers to suspect that one of the accused had pleaded guilty and would be giving evidence against his co-accused. The editor of that day's issue and author of the second article was the appellant, Ken Ali; the author of the third article was the appellant, Sharmain Baboolal, a freelance journalist; the publishers of the newspaper were the appellants, T & T News Centre Limited (T&T).[9]Contempt charges were immediately issued against Mr Ali and Ms Baboolal and they were required to attend before Jones J at 2 pm that day to show cause why they should not be punished for contempt of court. The charges alleged that the articles contravened the 10 June order. Having been served with the notices only some fifteen minutes before the hearing, Mr Ali and Ms Baboolal attended with junior counsel and made a series of applications for adjournments, first to allow counsel to take instructions, 35 minutes being allowed for the purpose; then to await the arrival of Mr Maharaj, Senior Counsel by then instructed on their behalf and on his way to court, 20 minutes being allowed for that; then, on Mr Maharaj's arrival, for him to research the law and consider whether to file affidavit evidence, 17 minutes only being allowed for that, despite the offer of an undertaking that such publications would not be repeated. Mr Maharaj was not shown the 10 June order (which in any event had probably not been transcribed) and had no time even to read the three articles. Upon enquiring of the judge whether it was proposed to lead any evidence against the two journalists, Mr Maharaj was told that none was thought necessary. Having called Ms Baboolal and the newspaper's editor-in-chief to give evidence, Mr Maharaj then renewed his application for an adjournment for an opportunity "to check the constitutionality of this order". The application was refused and Mr Maharaj was instead required to address the judge. Following his submissions, essentially to the effect that the articles (which he himself had not read) did not breach the order, Mr Hudson-Phillips QC, counsel, instructed by the Attorney General then addressed the court in response. Having found both appellants guilty, the judge immediately committed Mr Ali to prison for 14 days and fined Ms Baboolal $1,000 to be paid within 7 days, 21 days' imprisonment in default.[10]The judge then confirmed a further non-publication order made at an earlier stage of the hearing that afternoon (the 14 June order) in the following terms:
"Members of the press, that is, both the electronic and print media, ... I … order that for the time being and until further order you refrain from publishing, referring to, commenting upon in any way whatsoever the matters in this court which relate to the contempt proceedings against Ken Ali and Sharmain Baboolal, including the charges, their pleas or any submissions made in the matter, nor may you publish this order."
[11]On 17 June Mr Ali and Ms Baboolal appealed against their convictions and sentences, Mr Ali being released on bail by the Court of Appeal the following day, 18 June.[12]On 18 June the appellant, Independent Publishing Company Limited (IPC), publishers of The Independent, a weekly journal, issued a notice of motion seeking redress under section 14(1) of the Constitution for alleged violations of their constitutional rights by the non-publication orders made respectively on 10 and 14 June 1996.[13]It is convenient at this stage to set out the provisions of the Constitution directly relevant to IPC's (and later T&T's) motion:
"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist ... the following fundamental human rights and freedoms, namely ... (i) freedom of thought and expression; ... (k) freedom of the press. 14 (1). For the removal of doubts it is hereby declared that if any person alleges that any of the 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 High Court for redress by way of originating motion."
[14]On 25 June the appellants T & T, Mr Ali and Ms Baboolal similarly issued a notice of motion under section 14 (1) of the Constitution, in the case of Mr Ali and Ms Baboolal seeking redress not only for alleged violations of their rights enshrined in paragraphs (i) and (k) but also for alleged violations of their rights under paragraph (a) of section 4:
"(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law."
[15]In short, Mr Ali and Ms Baboolal were contending both that the orders of 10 and 14 June were not lawfully made whereby their freedom of expression and the freedom of the press (which includes the right of the public to receive information) (rights collectively referred to hereafter as the right to free expression) were infringed, and in addition that they had not had a fair trial upon the contempt charges brought against them.[16]Both constitutional motions were heard by Sealey J and dismissed by her in judgments delivered on 26 July 1996. At that time, of course, Mr Ali's and Ms Baboolal's appeals against their convictions and sentences for contempt were outstanding. They were to remain so for a further six years.[17]Albeit of no direct relevance to the issues now before the Board, it may be noted that the criminal trial before Jones J finally began before the jury on 26 July 1996 and ended on 3 September 1996 with the conviction (and subsequent hanging) of all nine accused. Morris had duly given evidence against them.[18]IPC, T & T, Mr Ali and Ms Baboolal all appealed against the dismissal of their respective constitutional motions. Those appeals were heard together with Mr Ali's and Ms Baboolal's outstanding appeals against their contempt convictions and sentences by the Court of Appeal (de la Bastide CJ, Sharma JA and Warner JA) on 1-5 March 1999, three further years then elapsing before judgments were finally handed down on 6 June 2002. Despite this regrettably long delay their Lordships pay tribute to all three members of the court for the quality of their judgments. The issues for determination were many, various and difficult and each was most carefully and thoughtfully addressed. The judgments extend in all to some 150 pages of transcript.[19]In summary, the Court of Appeal's decisions were as follows:(1) IPC's and T&T's constitutional appeals were dismissed (de la Bastide CJ dissenting). The orders of 10 and 14 June were properly made: the trial judge had an inherent jurisdiction to make them and furthermore they were justified in the interests of a fair trial.(2) Mr Ali's contempt appeal and (on the due process ground but not on the ground of free expression) his constitutional appeal were allowed (Sharma JA dissenting). His conviction and sentence were quashed. Damages for the breach of his constitutional right to due process were ordered to be assessed by a judge in chambers.(3) By unanimous decision Ms Baboolal's contempt appeal was allowed and her conviction and fine set aside; both grounds of her constitutional appeal, however, were dismissed. The reasoning of each member of the court on the many issues arising (even when in agreement on the outcome) was for the most part very different.[20]Five issues now arise for determination by the Board (the first four being raised by the appellants, the fifth by the respondents on their cross-appeal): Issue 1: Is there power at common law to order the publication of a report of open court proceedings to be postponed? "The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted ... As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this." "[T]he application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice. A familiar instance of this is provided by the 'trial within a trial' as to the admissibility of a confession in a criminal prosecution. The due administration of justice requires that the jury should be unaware of what was the evidence adduced at the 'trial within a trial' until after they have reached their verdict; but no greater derogation from the general rule as to the public nature of all proceedings at a criminal trial is justified than is necessary to ensure this. So far as proceedings in the courtroom are concerned the 'trial within a trial' is held in open court in the presence of the press and public but in the absence of a jury. So far as publishing those proceedings outside the court is concerned any report of them which might come to the knowledge of the jury must be withheld until after they have reached their verdict; but it may be published after that. Only premature publication would constitute contempt of court." "It must have been clear to all in court and to all who learnt what had happened in court that the object sought to be achieved by the justices allowing 'Colonel B' to write down his name was the preservation of his anonymity. ... If he had not given that evidence, then the appellants would have frustrated the object which the magistrates by their ruling sought to achieve. True it is that no warning was given that anyone who published his name might be proceeded against for contempt of court. In R v Border Television Limited, ex parte Attorney-General (Note) (1978) 68 Cr App R 375 [where the media was found guilty of contempt for reporting that the defendant had pleaded guilty at the outset of her trial to a number of other charges against her] it was held that ... no warning was necessary. While I do not think that it was strictly necessary for the magistrates to give such a warning in this case, I think it very desirable that in future cases where a court takes the course that the magistrates took in this case, a warning that publication of the witness's identity might lead to proceedings for contempt should be given." "As there are several persons charged by this indictment whose trials may come on one after another, the Court thinks it necessary, for the furtherance of justice, strictly to prohibit the publication of the proceedings on this or any other trial, until all the trials shall be gone through. It is highly necessary, for the purposes of justice, that the public mind, or the minds of those who may be to serve on trials hereafter, may not be influenced by publications of anything which takes place on the present trial; we hope all persons will observe this injunction." "No person can rationally doubt that the publication which has been complained of manifestly tended to obstruct the course of public justice ... The mischievous tendency of such publications cannot, as I have already said, be doubted by any mind; the Court thought it right before the first trial was begun, to express in the strongest terms its opinion as to the impropriety of any such publication, and to admonish those who were concerned in the publication of the daily or weekly papers to abstain from such insertion ..." "The whole trial of all these individuals constituted one entire proceeding; for if they had not severed in their challenges, the prisoners would have been tried all at once. In point of fact, however, they did sever in their challenges, and were tried seriatim. It could not, therefore, be said that the whole proceeding was terminated, until the last of those prisoners had taken his trial. Now the Court before whom the trial was about to take place was a Court of General Gaol Delivery, and had authority to make any order which they might judge to be necessary, in order to preserve the purity of the administration of justice in the course of the proceeding then depending before them, and to prohibit any publication which might have a tendency to prevent the fair and impartial consideration of the case. ... [I]t is argued that if the Court had this power of prohibiting publication, there is no limit to it, and that they may prohibit altogether any publication of the trial. I think that that does not follow. All that has been done in this case is very different; for the prohibition, here, has only been till the whole trial was completed." "Now, I take it to be clear, that a Court of Record has a right to make orders for regulating their proceedings, and for the furtherance of justice in the proceedings before them, which are to continue in force during the time that such proceedings are pending." "If we call this order of the court an order, or an admonition, or a notice, the object of it was most proper, and the best reasons are to be found for it, in the necessity of such a cause for ensuring fair administration of law and justice." p 83:
"The publication was a gross and wretchedly wicked contempt and the court most properly fined him. ... [T]herefore, the publication cannot but be considered as a direct contempt, tending to obstruct and impede the due administration of justice, necessarily having the effect of prejudicing the case of the other prisoners ..." "
I think that if the principle in cases of secret process be what I have stated, it affords guidance in other cases. In Rex v Clement, where under special circumstances it was held that daily publication of the evidence in a particular criminal trial in defiance of the judge had impeded justice , and was, therefore , an offence against it, we have a different illustration of a rule which may have manifold application, and may cover cases of a class before us in this appeal. But unless it be strictly necessary for the attainment of justice, there can be no power in the court to hear in camera either a matrimonial cause or any other where there is contest between parties." (emphasis added) "One of the strangest things in this strange case is that the case of Rex v Clement should be cited as an authority for the proposition that a [court] has power to prohibit the publication, after a trial has ended, of a report of the proceeding which took place at that trial. That case is a weighty authority having regard to the eminence of the learned judges who decided it, but it is an authority against, rather than in favour of, the proposition in support of which it was cited." "My Lords, in the argument before this House, little attempt was made to analyse the juristic basis on which a court can make a 'ruling,' 'order' or 'direction' - call it what you will - relating to proceedings taking place before it which has the effect in law of restricting what may be done outside the courtroom by members of the public who are not engaged in those proceedings as parties or their legal representatives or as witnesses. The Court of Appeal of New Zealand in Taylor v Attorney General [1975] 2 NZLR 675 was clearly of opinion that a court had power to make an explicit order directed to and binding on the public ipso jure as to what might lawfully be published outside the courtroom in relation to proceedings held before it. For my part I am prepared to leave this as an open question in the instant case." "It is not necessary to express an opinion on whether [ Taylor v Attorney General before the New Zealand Court of Appeal] was rightly decided. It suffices for me to say that in my opinion the courts of this country have no such power, except when expressly given by statute." "Neither in [ the Socialist Worker ] nor in the instant case did the court give any direction against publication purporting to operate outside the courtroom. It has to be said that hitherto the view seems to have been widely accepted that no such power exists. ... In the present appeals ... appellants and respondents alike concurred in submitting that ... the magistrates' court had no power to direct that there should be no publication in the press or by any other means of the identity of [Colonel B]. Lord Rawlinson QC, for the Attorney General, told your Lordships in terms that the court could not direct the outside world, but added that its ruling nevertheless extended outside its walls. ... After considerable reflection I have come to the conclusion that a court has no power to pronounce to the public at large such a prohibition against publication that all disobedience to it would automatically constitute a contempt." "For [contempt] to arise something more than disobedience of the court's direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice either in the particular case in relation to which the prohibition was pronounced or in relation to cases which may be brought in the future. ... [T]he press and others could, as I believe, be helped were a court when sitting in public to draw express attention to any procedural decisions it had come to and implemented during the hearing, to explain that they were aimed at ensuring that due and fair administration of justice and to indicate that any who by publishing material or otherwise acting in a manner calculated to prejudice that aim would run the risk of contempt proceedings being instituted against them. Farther than that, in my judgment, the court cannot go." "I find no problem in the concept that a decision or direction may have no immediate aim and no direct enforceability beyond the deciding and directing court, but yet may have such effect in connection with contempt of court. Merely to state, as is the law, that in general contempt of court is the improper interference with the due administration of justice is to state that it need not involve disobedience to an order binding upon the alleged contemnor." "I would summarise my conclusions thus. If a court is satisfied that for the protection of the administration of justice from interference it is necessary to order that evidence either be heard in private or be written down and not given in open court, it may so order. Such an order, or ruling, may be the foundation of contempt proceedings against any person who, with knowledge of the order, frustrates its purpose by publishing the evidence. ... The order or ruling must be clear and can be made only if it appears to the court reasonably necessary. ... [T]hose who are alleged to be in contempt must be shown to have known, or to have had a proper opportunity of knowing, of the existence of the order ..." "4(1). Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2). In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. 6. Nothing in the foregoing provisions of this Act ... (b) implies that any publication is publishable as contempt of court under [the strict liability] rule which would not be so punishable apart from those provisions;….. 11. In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld." The influence on these provisions of the Leveller , decided just two years earlier, will be obvious. "[Counsel] suggested that once an order is made by a court under section 4(2), and a newspaper publishes in breach of it, then the newspaper is automatically guilty of a contempt of court without any inquiry as to whether the order was rightly made or not. I cannot accept this suggestion for one moment. It would mean that every court in the land would be given a new power, by its own order, to postpone indefinitely publication in the newspapers of the whole or any part of the proceedings before it, or in another court. Such an order could be made, and would be made, against the newspaper without their having any notice of it or any opportunity of being heard on it. They have no right of appeal against it. It could be done on the application of one party, and the acquiescence of the other, without the court itself giving much, if any, thought to the public interest. It would be nothing more nor less than a power, by consent of the parties, to muzzle the press. ... Parliament has, I think, guarded against this danger. It has done so by [section 6(b)]." "It has long been settled that the courts have power to make an order postponing publication (but not prohibiting it) if the postponement is necessary for the furtherance of justice in proceedings which are pending or imminent. It was so held in [ Clement ] which was approved by the House of Lords in Scott v Scott ..." "Yet another instance at common law may arise when two men are jointly indicted but tried separately. Then it may be necessary to make an order postponing publication, as in [ Clement ]. Similarly, when there is another case going on at the same time, such as happened in 1974 in [ R v Poulson 2 January 1974], Waller J gave a warning in open court that certain items of evidence given at the trial should not be published because of the risk of causing prejudice to other criminal proceedings which had already begun." "By consent I make an order prohibiting the publication of anything that may lead to the identification of officers of the New Zealand Security Service. They will be described by a letter or symbol in each case." Clement was not cited to the New Zealand Court of Appeal. But, in reliance on a dictum of Lord Morris of Borth-y-Gest in R v Connelly [1964] AC 1254, 1301 – "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction." – Wild CJ and Richmond J (Woodhouse J dissenting) held that the trial court had had inherent jurisdiction to make the order. "It is unnecessary and undesirable in the present case to determine finally the question of the power of the court to make an order such as is sought by Mr Jones, directed to the world at large. For the reasons shortly to be given, if there be a power, it should not be exercised in the present case." "The decision in R v Clement was approved [by Viscount Haldane LC and Lord Atkinson in Scott v Scott ]. In the light of statements made in later cases, however, I do not think that R v Clement can be regarded as an authority for holding that an order made to preserve the purity of the administration of justice is ipso jure binding on members of the public." "Whether and to what extent a non-publication order may bind or otherwise affect non-parties is not a matter which has yet been finally determined in this State." "[A]s part of our democratic tradition, judges have always had the discretion to order in camera hearings or issue full or partial publication bans related to judicial proceedings, be it under the criminal, civil or common law. ... It is not up to this court, or any other court for that matter, to reverse a rule which has existed for hundreds of years in this free and democratic Canadian society without any disastrous effect or even complaint. Such a radical change in the way our criminal law has operated for hundreds of years must be made by Parliament." "Whether this case is still good law seems doubtful, for a criminal trial must be held in public, and, except in a few statutory cases, the judge has no power to forbid the publication of evidence given publicly." "We incline to the view that the important question of what the press may publish concerning proceedings in open court should no longer be left to judicial requests (which may be disregarded) nor to judicial directions (which, if given, may have doubtful legal authority) but that legislation ... should provide for these specific circumstances in which a court shall be empowered to prohibit, in the public interest, the publication of names or of other matters arising at a trial." Issue 2: Were the Orders of 10 and 14 June 1996 justified? "[I]n considering whether it was 'necessary' both in the sense under section 4 (2) of the 1981 Act of avoiding a substantial risk of prejudice to the administration of justice and therefore of protecting the defendant's right to a free trial under article 6 of the Convention and in the different sense contemplated by article 10 of the Convention as being 'prescribed by law' and 'necessary in a democratic society' by reference to wider considerations of public policy, the factors to be taken into account could be expressed as a three-part test; that the first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings, and if not that would be the end of the matter; that, if such a risk was perceived to exist, then the second question was whether a section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be 'necessary' to take the more drastic approach; and that, thirdly, even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage value judgments might have to be made as to the priority between the competing public interests represented by articles 6 and 10 of the Convention." "The judge's arsenal of procedural and substantive measures is not to be regarded as a general panacea for pre-trial publicity, otherwise no proceedings will ever be stayed. ... The order was being made in the knowledge that the publicity was likely to affect people who were perhaps not yet otherwise affected. ... [Making the order] was the only reasonable and sensible thing to do in the circumstances." Issue 3: Were IPC and TNT entitled to constitutional redress for interference with their right to free expression? "[H]uman rights guaranteed in the constitution of Antigua and Barbuda are intended to be a major influence upon the practical administration of the law. Their enforcement cannot be reserved for cases in which it is not even arguable that an alternative remedy is available. As Lord Steyn said, delivering the judgment of the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 AC 294 , 307 '... bona fide resort to rights under the constitution ought not to be discouraged.' Frivolous, vexatious or contrived invocations of the facility of constitutional redress are certainly to be repelled. To that extent, their Lordships agree with the judgments delivered in Antigua. But, by contrast, the right of freedom of communication is at the heart of this case." Issue 4: Were Mr Ali and Ms Baboolal entitled to similar constitutional redress? "It was argued on behalf of the applicant that, if he could persuade the Board that, because it had become obsolete long before 1962, no such offence as 'scandalising the court' was known to the common law in force in Trinidad at the commencement of the Constitution, this would entitle the applicant to redress under section 6 [of the 1962 Constitution now section 14 of the 1976 Constitution] for his having been imprisoned by the state for exercising his constitutional rights of freedom of expression and freedom of the press. ... Even if it were possible to persuade their Lordships that [this] publication ... no longer constituted a criminal contempt of court ..., it would merely show that the judge had made an error of substantive law as to a necessary ingredient of the genus of common law offences which constitute contempt of court. In their Lordships' view there is no difference in principle between this kind of error and a misinterpretation by a judge, in the course of an ordinary criminal trial, of the words of the Act of Parliament creating the offence with which the accused is charged. If the former is open to collateral attack by application to the High Court under section [14] of the Constitution so must the latter be." Issue 5: Was Mr Ali entitled to constitutional redress for a violation of his right to due process? "The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1(a) [of the 1962 Constitution, now section 4a of the 1976 Constitution]; and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event. ... [Even] a failure by a judge to observe one of the fundamental rules of natural justice does not bring the case within section 6 [now section 14] unless it has resulted, is resulting or is likely to result, in a person being deprived of life, liberty, security of the person or enjoyment of property. It is only in the case of imprisonment or corporal punishment already undergone before an appeal can be heard that the consequences of the judgment or order cannot be put right on appeal to an appellate court. It is true that instead of, or even as well as, pursuing the ordinary course of appealing directly to the appellate court, a party to legal proceedings who alleges that a fundamental rule of natural justice has been infringed in the course of the determination of his case, could in theory seek collateral relief in an application to the High Court under section 6(1) with a further right of appeal to the Court of Appeal under section 6(4). The High Court, however, has ample powers, both inherent and under section 6(2), to prevent its process being misused in this way ..." "If I were at all of the opinion that section 6 did unambiguously confer a right of damages in circumstances like the present, I would not, of course, be deterred from saying so in view of any inconveniences in public policy which might ensue from this conclusion. But, since I am not of this opinion, I feel that I am entitled to point to some of the inconveniences which I believe to exist. In the first place, as I understand the decision of the majority it is that a distinction must be drawn between a mere judicial error and a deprivation of due process as in the instant appeal, and that the former would not, and the latter would, attract a right of compensation under the present decision, even though in each case the consequences were as grave. I have already touched on this. I do not doubt the validity of the distinction viewed as a logical concept, though the line might be sometimes hard to draw. But I doubt whether the distinction, important as it may be intellectually, would be of much comfort to those convicted as a result of judicial error as distinct from deprivation of due process or would be understood as reasonable by many members of the public, when it was discovered that the victim was entitled to no compensation, as distinct from the victim of a contravention of section 1 of the Constitution who would be fully compensated." "It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so the Constitution must be an effective, instrument. But Lord Diplock's salutary warning remains pertinent: a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or a judicial decision ... The applicant's complaint was one to be pursued by way of appeal against conviction, as it was ..." "[The authorities] establish that it is only in rare cases where there has been a fundamental subversion of the rule of law that resort to constitutional redress is likely to be appropriate. However the exceptional case is formulated it is clear that the constitutional rights to due process and the protection of the law do not guarantee that the judicial process will be free from error. This is the reason for the appellate process. In the present case the appellant was deprived of his liberty after a fair and proper trial before the magistrate, that is to say by due process of law. The appellant was able to challenge his conviction by way of appeal to the Court of Appeal and, when the Court of Appeal wrongly failed to quash his conviction, by way of further appeal to the Board. The appeals were conducted fairly and without procedural error, let alone any subversion of the judicial process. The appellant thus enjoyed the full protection of the law and its internal mechanisms for correcting errors in the judicial process. His constitutional rights have not been infringed ..."

Cited in 19 later judgments

and 10 more of the most senior