IS A 10 YEAR SENTENCE OF IMPRISONMENT OR A $50,000 FINE JUSTIFICABLE FOR THE USE OF ONE’S RIGHT OF FREEDOM OF EXPRESSION?
( SEE: BELOW FOR THE PRESS RELEASE BY THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS)
The offence of scandalising the court is a form of contempt. Conduct likely to undermine the administration of justice or public confidence in the administration of justice is the purview of this offence. Its legal definition is as follows:-
“any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority” (R v Gray  2 QB 36, 40, by Lord Russell of Killowen CJ).
I ask two (2) questions:-
1. Can the offence of scandlising the court be deemed to be compatible with the provisions of the European Convention on Human Rights ( more particularly – Article 10)?
2. Is the use of this type of draconian action compatible with rights and values in a democratic society?
On 10 December 2012 the House of Lords had a debate on the issue of abolition of the offence of scandalising the court. They accepted the abolition of scandalising the court by way of an amendment to the Crime and Courts Bill. See here for the debate:- http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/121210-0001.htm#1212107000682. The law lords were all in favour of abolition.
We are now told in the TCI that the offence of scandalising the court might be invoked and that persons who exercise their constitutional right of freedom of expression might be subject to the penalty of 10 years imprisonment or a fine of $50,000 – at a time when the UK sees no use for this obsolete law, and when under UK jurisdiction in the TCI is subject to the provisions of the European Convention on Human Rights.
As an aside, I can but wonder, if we are to be subjected to gay rights and VAT, as being provisions and policies in unison with the UK , why then aren’t we entitled to parity when it comes to the fundamental right of “freedom of expression”?
Footnote: Mr. Lloyd Rodney ( deceased) and myself are the only two persons or lawyers in the TCI who were ever arrested and convicted for scandalising the court when factually, truthfully and accurately we pointed out substantial compromises of justice in the TCI and by way of 2 petitions called for the removal of an incompetent Chief Justice.
_________________________________ PRESS RELEASE OF THE ATTORNEY GENERAL OF THE TURKS
AND CAICOS ISLANDS
“ TURKS AND CAICOS ISLANDS ATTORNEY GENERAL DECRIES ANONYMOUS ATTACKS
Huw Shepheard said:
“It has come to my attention that there have recently been attacks on websites and in the Media on the Judiciary, the Registrar of the Supreme Court, Public Servants, and others, and on the judicial and legal system as a whole. These attacks have made unsupported and frankly preposterous accusations coupled with other scurrilous and defamatory material.
“Such attacks are abhorrent in a decent and orderly society and I urge the public and the media to adhere to the highest principles of decency and proper restraint in commenting on judicial and public matters; all commentators must bear in mind that the Judges cannot respond themselves.
“No right-thinking person would believe or accept as accurate the offensive drivel that is being written, but it seems that many uncritically believe what they read, with the result that there is a general weakening in respect for our institutions and legal system, and for judicial independence.
“These personal and defamatory attacks on public servants are grossly unfair and should stop; their continuance is corrosive and destructive of public trust in institutions which serve all Turks and Caicos Islanders and all who live here; they simply pander to ignorance and the worst side of human nature.
“If people have concerns and wish to raise particular issues or complaints, they are welcome to do so in a free society but should do so in temperate and reasonable language, without indulging in disgusting personal attacks, which must be very distressing for the victims and their families and friends. I should also point out that such behaviour may well amount to the criminal offence of scandalising the judiciary, which carries a maximum penalty of an unlimited fine and the possibility of life imprisonment.
“Internet sites and the Media generally should not accept and publish anonymous columns; doing so actively promotes cowardly and sickening attacks such as these and lowers the tone of journalism.
“If individual authors can be identified, consideration will be given to proceedings for Contempt of Court or scandalising the judiciary. Those who hide behind anonymous websites, the owners of such websites and those who facilitate their existence are equally guilty and they should not be under the illusion that, if identified, they are not likely to face prosecution to the utmost extent of the law.
“Public Officers who disclose public information to such sites should also know that they are liable to disciplinary action and prosecution for the unauthorized disclosure of public information and could face penalties of up to two to ten years imprisonment and a fine of up to $50,000.
“Our Constitution and the other laws I have referred to seek to balance the exercise of the right to free speech against the harm that unfettered free speech can do to individuals and society at large. Such abuse as we have see recently does not enjoy any protection under the Constitution.”