Commissioner of Police and Another v Bermuda Broadcasting Company Ltd and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 23 January 2008 |
| Neutral Citation | [2008] UKPC 5 |
| Court | Privy Council |
| Date | 23 January 2008 |
| Docket Number | Appeal No 48 of 2007 |
[2008] UKPC 5
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Mance
Lord Neuberger of Abbotsbury
[Delivered by Lord Scott of Foscote]
The litigation that has led to this interlocutory appeal to the Board has its origins in the unauthorised removal from the custody of the Bermuda Police Service ("the BPS") of a number of documents relating to an extensive investigation that the BPS, over the period 2002 to 2004, had carried out into the affairs of the Bermuda Housing Corporation ("the BHC"), a statutory body with powers and duties provided for by the Bermuda Housing Act 1980. The police investigation had been prompted by allegations of corruption and impropriety in the conduct of the BHC's affairs. The documentary material generated by this investigation included police officers' notes and records of interviews, policy decisions and investigative strategies. The police files record, among other things, the opinions of police officers on the material being gathered and the allegations made by and against individuals. Several of the individuals against whom or about whom allegations had been made were prominent figures in Bermudian political life. Some were or had been government ministers. In about July 2004 the then acting Director of Public Prosecutions, Mr Kulandra Ratneser, concluded that the investigation had not disclosed anything sufficient to warrant a criminal prosecution being brought against any of those concerned save, it appears, one junior BHC officer. The investigation was then brought to an end and the police files, containing the documentary material that had been collected, were placed in a storage facility.
However at some time between March 2007 and 23 May 2007 the police files were unlawfully removed. The identity of the perpetrator or perpetrators has not been discovered. The BPS were unaware that the files had been removed until 23 May 2007 when ZBM, a television channel operated by the first respondent, broadcast an interview of Mr Ratneser by Mr Gary Moreno, the ZBM presenter, in the course of which documents, or copies of documents, from the BHC investigation police files were put to Mr Ratneser. On the following day, 24 May 2007, ZBM broadcast a further programme in which its reporter, Mr Peter Cattell, referred to having had sight of the documents in the missing files (or of copies of the documents). These broadcasts were followed on 1 June 2007 by the publication in the Mid-Ocean News, a Bermudian newspaper published by the second respondent, of articles which referred to, quoted from, and, in one case, produced a facsimile of, documents contained in the missing files. The third, fourth and fifth respondents subsequently broadcast and published material derived from the material that had been broadcast or published by the first and second respondents.
The reaction of the BPS to all this was, first, to institute an investigation into, as they saw it, the theft of police documents and, secondly, on 7 June 2007 to join the Attorney General in commencing proceedings against those responsible for the broadcasts and the publications. The Writ of Summons was subsequently amended and, in its amended form, seeks, among other things, an injunction to restrain each of the defendants from broadcasting or publishing any information derived from the BHC investigation documents. An order is also sought for the delivery- up by each of the defendants of any investigation documents in the possession of that defendant. However no order is sought for the disclosure of the identity of the person or persons from whom the investigation documents (or the copies of the documents) referred to in the broadcasts or newspaper publications (as the case may be) were obtained.
On the same day as the Writ was issued the plaintiffs, appellants now before the Board, obtained ex parte relief preventing the publication of any "new material" based on the missing investigation documents until an inter partes application for an interlocutory order to that effect could be heard. The inter partes application was heard by Ground CJ on 13 June 2007. The burden of the opposition to the grant of the interlocutory injunction was borne by the second respondent. The other respondents undertook to be bound by whatever order the court made and then withdrew. On 18 th June, in a written judgement, the Chief Justice dismissed the application. He agreed with the appellants that they had made out "a strong case that the documents are confidential police documents" and that there was:
"…a serious issue to be tried that continuing publication of the information would breach the rights of the confidentiality which the police service has in it." (para. 25)
But he held also that the issue as to whether the injunction should be granted
"…turns upon a balancing of the competing interests of the police in confidentiality and of the press and public in freedom of expression" (para. 26)
In striking the balance between these competing interests the Chief Justice took into account, on the one hand, "the interest of the police service in the proper exercise of its functions" and, on the other hand, "…the proper interest of the public in being fully informed about the dealings and character of those who submit themselves for election to high public office" (para. 28). He recognised "the need to protect the integrity and confidentiality of police investigations" and recognised that disgruntled police officers who were not satisfied with the outcome of an investigation should not be able or encouraged to turn the investigation materials over to the press (para. 30). But the Chief Justice noted that there was nothing to suggest that the press in general, or the second respondent in particular, had been guilty of or had participated in the removal of the investigation documents from the custody of the BPS. The first and second respondents had, he suggested, simply been the recipients of a "leak" by some as yet unknown police insider (para. 31). The Chief Justice also put into the balance the interests of the individuals named in the leaked documents and about whom adverse allegations had been made. But he took the view that "different considerations apply to those who have sought election to public office than apply to private individuals" (para. 32). In paragraph 33 of his judgment, the Chief Justice expressed his opinion about the weight of the factors on the other side, the press side, of the balance. Their Lordships think that the paragraph merits citation in full:
"33, On the other side of the balance there is the media's constitutional right to inform the public about serious allegations concerning important public figures. As the cases cited illustrate that is a weighty and important consideration: The allegations are not gratuitous, in that there is some evidence to support them, as set out in the material so far reported. Nor do the allegations concern the private personal life of those concerned. They touch upon their conduct in office. In those circumstances I think that the public interest is genuinely engaged, and this is not a case of the public being officiously interested in matters which do not concern them. I think, therefore, that the balance comes down firmly against restraining the media's freedom [of] expression. I consider that that is the case even at this interlocutory stage, it being hard to envisage what a full trial could add to the considerations already before the court."
The appellants appealed but the Court of Appeal (Zacca P, Nazareth JA and Ward JA) dismissed the appeal. Here, too, only the second respondent appeared at the hearing. The judgment of the Court of Appeal, given by Ward JA on 25 June 2007, agreed that the Chief Justice had had to carry out a balancing exercise between the right of the BPS that their confidential documents should remain confidential and, on the other hand, the constitutional right of the press to freedom of expression. Ward JA cited the passage from Lord...
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