Ambard v Attorney General for Trinidad and Tobago

JurisdictionUK Non-devolved
Judgment Date1936
Date1936
Year1936
CourtPrivy Council
[PRIVY COUNCIL.] AMBARD APPELLANT; AND ATTORNEY-GENERAL FOR TRINIDAD AND TOBAGO RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF TRINIDAD AND TOBAGO. 1936 March 2. LORD ATKIN, LORD MAUGHAM, and SIR SIDNEY ROWLATT.

Appeal to Privy Council - Competency - Conviction of Contempt of Court - Penalty imposed by Court of Record - Jurisdiction of Judicial Committee to entertain Appeal - Public criticism of administration of justice - Rights and limitations applicable.

It is competent to His Majesty in Council to give leave to appeal, and to entertain appeals, against orders of Courts of Record overseas imposing penalties for contempt of Court. There is no reason for limiting in this respect the general prerogative of the Crown to review all judicial decisions of Courts of Record, whether civil or criminal, in the dominions overseas. Interferences with the administration of justice, whether they be interferences in particular civil or criminal cases, or take the form of attempts to depreciate the authority of the Courts themselves, when they amount to contempt of Court are quasi-criminal acts, and orders punishing them should, generally speaking, be treated as orders in criminal cases, and leave to appeal against them should only be granted on the well-known principles on which leave to appeal in criminal cases is given [see In re Dillet (1887) 12 App. Cas. 459.]

Rainy v. Justices of Sierra Leone (1852–3) 8 Moo. P. C. 47, dissented from.

Surendranath Banerjea v. Chief Justice and Judges of the High Court of Bengal (1883) L. R. 10 I. A. 171, considered.

McLeod v. St Aubyn [1899] A. C. 549, followed.

Whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises freely the ordinary right of criticizing temperately and fairly, in good faith, in private or in public, any episode in the administration of justice. Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice, or attempting to impair the administration of justice, they are immune from proceedings for contempt of Court.

Dicta of Lord Russell of Killowen C.J. in Reg. v. Gray [1900] 2 Q. B. 36, at p. 40, applied.

Order of the Supreme Court of Trinidad and Tobago set aside.

APPEAL (No. 46 of 1935), by special leave, from a judgment of the Supreme Court of Trinidad and Tobago (September 5, 1934), whereby the appellant, Andre Paul Terence Ambard, the editor-manager and part proprietor of the Port of Spain Gazette, was convicted of contempt of Court and ordered to pay a fine of 25 l., or in default to be imprisoned for one month.

The conviction was in respect of a leading article published in the Port of Spain Gazette on June 29, 1934, entitled “The Human Element,” which criticized alleged inequality of sentences passed in Trinidad and Tobago for certain criminal offences.

The facts and the leading article in question appear from the judgment of the Judicial Committee.

The Supreme Court of Trinidad and Tobago (Belcher C.J., Gilchrist and Robinson JJ.) held that the article was written “with the direct object of bringing the administration of the criminal law in this Colony by the judges into disrepute and disregard,” and they convicted the appellant and, as stated, ordered him to pay a fine of 25 l., or in default to be imprisoned for one month.

1936. Jan. 27. Cave K.C. and Richard A. Willes for the appellant. All that the appellant said in the article was that the two sentences were not those which ought to have been passed: there is no suggestion of bias or anything of the kind. The article is one which conveys the opinion, perhaps the uninstructed and wrong opinion of the writer, and the responsibility for it is accepted by the appellant. There is nothing in it, however, which comes anywhere near the length of the offence of scandalizing the Court. [Reference was made to Reg. v. GrayF1 and McLeod v. St. Aubyn.F2]

Willes followed. The article was held to be contempt of Court because the Court which examined it reached the conclusion that it was untrue and malicious. That it was untechnical must be admitted. The idea of securing equality and uniformity in criminal punishment has been and will be the subject of discussion by idealists for all time, and if an article has for its object the expression of a desire to attain this ideal, comment on the failure to attain it in existing Courts and judgments is comment which the Courts ought not to stop, and certainly is not conduct which ought to be treated as the crime of contempt. It is not contempt of Court to criticize the system with the object of improving it, even though, in emphasizing the conclusion drawn, illustrations, which are misguided or erroneous, are taken from existing decisions of the Court. This article was far from containing on its face any evidence of malice or ill-will towards the judge, and has a strong expression of the absence of such malice, although the writer does disclose an incorrect knowledge of criminal procedure.

Schiller K.C. and Kenelm Preedy for the respondent. The first question is how far this Board should interfere in cases where there is an order made by a Court of competent jurisdiction in a matter of contempt. The authorities on that question are not uniform, and the procedure seems to vary from time to time. The present is a matter which in its nature is a criminal contempt, and if it were being tried in this country there would be no appeal. In Rainy v. Justices of Sierra LeoneF3 Lord Cranworth saidF4: “In this country every Court of Record is the sole and exclusive judge of what amounts to a contempt of Court. It is within the competency of the Court to impose fines for contempt; and, unless there exists a difference in the constitution of the Recorder's Court at Sierra Leone, the same power must be conceded to be inherent in that Court …. We do not consider that there is any remedy by petition to the Judicial Committee to review the propriety of such orders.” The matter was also dealt with in McDermott v. The Judges of British GuianaF5, and the conclusions of the Board were given by Lord Chelmsford, who citing with approval from Rainy's caseF3, saidF6: “…. we are of opinion, that it is a Court of Record, and that the law must be considered the same there as in this country, and, therefore, that the Orders made by the Court in the exercise of its discretion, imposing these fines for contempts, are conclusive, and cannot be questioned by another Court; and we do not consider that there is any remedy by petition to the Judicial Committee to review the propriety of such Orders.” Is it not a very important matter that the local Court should be allowed to judge what has constituted contempt, because they, knowing all the circumstances, are possibly the best judges of whether it constituted contempt or not. The Board ought to be very careful in exercising its jurisdiction to interfere. In Surendranath Banerjea v. Chief Justice and Judges of the High Court of BengalF7 Sir Barnes Peacock saidF8: “Their Lordships having decided that the libel was a contempt of Court, and that the High Court had jurisdiction to commit the petitioner for a period of two months, the case is not a proper one for an appeal to Her Majesty.”

[LORD MACMILLAN. Does not that mean that it is a pure question of discretion?]

The Privy Council have laid down the ground upon which they will grant leave to appeal in pursuance of the prerogative, and they have confined it to cases where there is failure to regard the rules and the decision is contrary to natural justice. In the Surendranath Banerjea caseF7, Rainy's caseF9 was treated as an authority, and Rainy's caseF9 has been cited many times without question, and no limitation has been put upon it.

[LORD ATKIN referred to the Order in Council in McLeod v. St. Aubyn.F10]

There were very peculiar facts in that case. Assuming that there is jurisdiction, the Board ought to be very slow indeed to interfere with the local Court who know all the particulars and circumstances. They did think, from what had taken place in the Colony before, that this article was not as innocent as it appeared. The judges are saying: “You are criticising us for the unfair administration of justice,” and if that is so, it is contempt of Court. Because the Court of trial on a criminal matter has come to a conclusion different from that at which this Board might arrive, that is not enough to entitle the Board to entertain an appeal from it: In re DilletF11 and Arnold v. The King-EmperorF12, where the principle was re-stated.

Cave K.C. replied. On the question of jurisdiction, the position...

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