Benjamin and Others v Minister of Information and Broadcasting and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley |
| Judgment Date | 14 February 2001 |
| Neutral Citation | [2001] UKPC 8 |
| Court | Privy Council |
| Docket Number | Appeal No. 2 of 1999 |
| Date | 14 February 2001 |
[2001] UKPC 8
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Nolan
Lord Cooke of Thorndon
Lord Clyde
[Delivered by Lord Slynn of Hadley]
Radio Anguilla is a Radio Station owned by the Government of Anguilla and run by a non-statutory department of government within the responsibility of the Minister of Information and Broadcasting. It is the only secular radio station broadcasting throughout Anguilla, the other station being a privately owned station concerned with religious matters.
In 1994 a radio programme was instituted called "TALK YOUR MIND" which enabled members of the public to telephone their comments as part of the programme. Mr Benjamin, a lawyer and an active member of the community who had experience of producing a radio programme, was appointed to host the programme on the condition that he was responsible for its format and for obtaining sponsorship. This arrangement was made at the instance of the Director of Broadcasting and with the approval of four Ministers of the coalition government formed in 1994, following undertakings by the political parties in the coalition to free broadcasting. The programme first went out on 19th October 1994 and was it seems a great success. Issues of wide importance to the public were ventilated and government ministers took part in the discussion. But by 1996 there was much criticism of the government during the programme and in July 1996 the Minister of Information and Broadcasting suggested that the programme should be changed to one with discussion panels but no phone-in participation by the public. Mr Benjamin considered this an interference with the public's right to freedom of expression and was unwilling to change the format which he personally arranged and paid for. The programme was then closed down which led to widespread criticism, indeed anger, on the part of the public. Subsequently, on 23rd October 1996, the programme was reinstated with the Minister of Information and Broadcasting as guest speaker.
On 16th July 1997, during the programme, a question was raised by a caller as to the legality and propriety of the national lottery which had recently been set up. Mr Benjamin expressed the view that the lottery was not appropriate for Anguilla and said that it had been turned down by the House of Assembly. Indeed he said that in his view it was illegal. A Mr Todd Washington, the Vice President of the Anguilla Lottery and Gaming Company Limited, also spoke to put his views. The next day Mr Washington asked for equal time to respond to the criticisms made in the programme but by letter dated 17th July 1997, he gave notice of the company's intention to sue Radio Anguilla and Mr Benjamin "for defamation, malicious intent to injure and destroy the economic interests of the Company in Anguilla and for other serious tortious actions".
The government then without discussing the matter with Mr Benjamin suspended "TALK YOUR MIND". The appellants applied to the High Court and, by their amended notion of motion, sought a declaration that the suspension of the programme was "a contravention, active suppression and abridgement of the First-named Applicant's rights to freedom of thought, freedom of expression and freedom from discrimination as guaranteed by sections 1, 10, 11, 13 and enshrined by sections 10, 11, 13 and 16 of the Constitution of Anguilla in that:-
"(a) It constitutes a refusal by the Respondents to allow further debate of the issue of the lottery through the medium which has the widest and most effective broadcast dimension in Anguilla.
(b) It constitutes in relation to the Applicants a refusal by the Respondents to allow the Applicants access to the medium which has the widest and most effective broadcast dimension for the debate on matters of community concern.
(c) It is discriminatory in effect of the Applicants in the exercise of their right to freedom of thought and expression".
The Applicants also asked for a declaration that suspending the programme infringed the Applicants' rights to freedom of thought and of expression; that it was in breach of the First Applicant's legitimate expectation that the programme would continue for the benefit of himself and the Community so long as the social need required it; that the State so operates and controls the radio station that the Applicants' access to the public broadcast is governed by the arbitrary decisions of the Minister and the Applicants' rights to freedom of expression were or were likely to be contravened. They further sought a declaration that the Respondents discriminated against the First Applicant and that the decision of the Minister with respect to the Applicants' access to the radio and to the freedom of expression of views on the lottery constituted a contravention of the rights of the Applicants to freedom of thought, freedom of expression to express political views and to freedom of expression in general. As a consequence, the decision, with respect to the suspension of the programme, was void and damages should be paid to the First Applicant.
The Second Applicant is a Belonger by birth to Anguilla and a resident there. She had been a regular listener and contributor to the discussions in "TALK YOUR MIND" which in her affidavit she says in her neighbourhood "has developed as a necessary part of life, a means of expressing and airing our concerns and of knitting the Community together". She passed on the concerns of her Community as to matters of public interest, so that they could be aired. She says that "since June 1997, a large part of the Community has been outraged by the introduction of the New Lottery in Anguilla …".
The Third Applicant in his affidavit describes himself as "a regular member of the wide listening audience of the programme". He regularly contributed to the programme and used it "as an opportunity to express my views and ideas of prevailing circumstances in Anguilla" discussing the issues raised with other members of his Community.
The Constitution of Anguilla provides as follows.
Chapter I
"Protection of fundamental Rights and Freedoms
1. "Whereas every person in Anguilla is entitled to the fundamental rights and freedoms of the individual, that is to say, 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) (b) (c)… the subsequent provisions of this chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms…
Protection of freedom of conscience
10-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, including freedom of thought and of religion …
Protection of freedom of expression
11-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence and other means of communication.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, telegraphy, posts, wireless, broadcasting or television; or
(c) that imposes restrictions upon public officers:
11. Provided that the provision or, as the case may be, the thing done under the authority thereof is shown to be reasonably justifiable in a democratic society.
Enforcement of protective provisions
16-(1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, or is being, contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), 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."
Section 13 provides for protection from discrimination on the grounds set out.
The Trial Judge
Saunders J. held that the Minister's decision to suspend the programme on 19th July 1997 was a contravention of the Applicants' rights to freedom of expression guaranteed and enshrined in the Constitution and protected by section 11. He accepted that the idea of the programme came from Mr Benjamin who was Chairman of the Anguilla Democratic Party (ADP), one of the two Parties in the coalition government. Mr Benjamin's idea was that the programme would fulfil a promise of open government made by the ADP and would allow people to express their views on matters of concern to the Community. The judge said "the Ministers of Government, flushed with victory at the polls, welcomed the idea. Already, at the level of Executive Council, they told Mr Benjamin, they had collectively made a commitment to uphold freedom of the Press and of Expression". At the time that...
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