Observer Publications Ltd v Campbell "Mickey" Matthew and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Cooke of Thorndon |
| Judgment Date | 19 March 2001 |
| Neutral Citation | [2001] UKPC 11 |
| Court | Privy Council |
| Docket Number | Appeal No. 3 of 2000 |
| Date | 19 March 2001 |
[2001] UKPC 11
Present at the hearing:-
Lord Steyn
Lord Cooke of Thorndon
Lord Scott of Foscote
Sir Patrick Russell
Sir Murray Stuart-Smith
Privy Council
[Delivered by Lord Cooke of Thorndon]
At the conclusion of the hearing on 14th November 2000 their Lordships agreed humbly to advise Her Majesty that the appeal should be allowed and said that they would give their reasons later. This they now do.
The appellant, Observer Publications Limited, is a company incorporated in Antigua and Barbuda, which is, as stated in its Constitution of 1981, a unitary sovereign democratic State. In March 1995 the company applied in due form under the Telecommunications Act for a licence to operate a commercial FM radio station. The application was made to the appropriate public official, the Telecommunications Officer. All relevant information was supplied. Some 17 months later the application had not been formally disposed of; and more than five years later that remained the position. At best there has been procrastination. In a letter dated 12 August 1996 from the Permanent Secretary in the Prime Minister's Office the application was said to be "still under consideration"; but the trial judge, Benjamin J., justifiably described this in the light of the history and surrounding circumstances as "a euphemism for a refusal".
The Constitution includes provisions, largely in standard form, guaranteeing freedom to disseminate information and ideas by broadcasts, subject to laws reasonably required for various purposes. No specific reason of any kind, technical or otherwise, has ever been given, expressly or impliedly, for denying a licence to the appellant. Violation of the appellant's constitutional rights is therefore plain. Yet the courts of Antigua and Barbuda have refused the appellant constitutional redress, taking the view that no constitutional right has been infringed.
By leave granted by the Court of Appeal the ppellant appealed to Her Majesty in Council from the decision of that court. At the hearing before the Board the case for the respondents failed comprehensively. The fundamental reason has already been indicated. It is true that no one has an absolute right to establish a broadcasting station. The effect of such provisions as are found in the Constitution of Antigua and Barbuda is, however, that a licence to do so may be refused only on constitutionally justifiable grounds. No such grounds have been demonstrated or can be inferred in this case.
The Constitutional Provisions
Freedom of speech and of the press are among the nalienable human rights and freedoms to be guaranteed by the Constitution, as proclaimed in its preamble. Paragraph (e) recites that the People of Antigua and Barbuda –
(e) desire to establish a framework of supreme law within which to guarantee their inalienable human rights and freedoms, among them, the rights to liberty, property, security and legal redress of grievances, as well as freedom of speech, of the press and of assembly, subject only to the public interest.
In Chapter I, The State and the Constitution, Section 2 gives the Constitution in general overriding effect –
This Constitution is the supreme law of Antigua and Barbuda and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
Section 3 then provides –
Whereas every person in Antigua and Barbuda is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, regardless of race, place of origin, political opinions or affiliations, 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 –
the provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.
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(a) life, liberty, security of the person, the enjoyment of property and the protection of law;
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(b) freedom of conscience, of expression (including freedom of the press) and of peaceful assembly and association; and
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(c) protection for his family life, his personal privacy, the privacy of his home and other property and from deprivation of property without fair compensation,
As an unlawful search and seizure also feature in the present case, it is to be noted that section 9 contains extensive provisions against unlawful deprivation of property; and that section 10(1) provides that, except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. Section 10(2) qualifies this by providing that nothing contained in, or done under the authority of any law, shall be held to be inconsistent with or in contravention of the section to the extent that the law in question makes provision for sundry purposes. These need not be quoted here.
It is necessary to quote in full section 12, which renders more particular the freedom of expression affirmed in the earlier provisions –
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression.
(2) For the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive information and ideas without interference, freedom to disseminate information and ideas without interference (whether the dissemination be to the public generally or to any person or class of persons) and freedom from interference with his correspondence or other means of communication.
(3) For the purposes of this section expression may be oral or written or by codes, signals, signs or symbols and includes recordings, broadcasts (whether on radio or television), printed publications, photographs (whether still or moving), drawings, carvings and sculptures or any other means of artistic expression.
(4) 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 –
(b) that imposes restrictions upon public officers that are reasonably required for the proper performance of their functions,
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
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(i) in the interests of defence, public safety, public order, public morality or public health; or
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(ii) for the purpose of protecting the reputations, rights and freedoms of other persons, or the private lives or persons concerned in legal proceedings and proceedings before statutory tribunals, preventing the disclosure of information received in confidence, maintaining the authority and independence of Parliament and the courts, or regulating telephony, posts, broadcasting or other means of communication, public entertainment's, public shows; or
Section 14 contains elaborate provisions directed against discrimination. These were among the rights unsuccessfully relied on for the company in the courts below. The argument based on section 14 was not repeated on the Privy Council appeal. At a late stage of the hearing it emerged, as a result of a request for information from the Board, that as from 13 January 1997 Grenville Radio Limited had been granted licences until 31 December 2022 to operate the AM radio station ZDK and the FM radio station SUN FM. It is said that ZDK was first licensed about 1970 and the additional FM wavelength authorised about 1994 or 1995. The directors of Grenville Radio Limited in 1995 were Mr. Lester Bird (the Prime Minister and Minister of Communications), and his brothers, Messrs. Ivor and Vere Bird Jr., together with their mother. The only other broadcasting stations permitted to operate in the country are said to be the Government-owned Antiguan Broadcasting Service, ABS, broadcasting on television and medium-wave radio; "Superchannel", a cable television operation of a company owned and operated by Mr. Vere Bird Jr., which is said to be authorised by a franchise or special licence issued by the Cabinet; and "Caribbean Lighthouse", a station transmitting religious programmes only. The Cable and Wireless West Indian network has some presence, but the evidence does not particularise this.
On 12 August 1996, in the context of a Government proposal to privatise ABS radio and television, the Office of the Prime Minister had announced in a press release that no new licences would be issued for radio and television stations until that exercise had been completed. The exercise has remained uncompleted; it was outlined in a White Paper presented by the Prime Minister and approved by the Cabinet on 24 July 1996. On 23 July 1996 Observer Publications Limited had written notifying an intention to commence broadcasting on 1 September 1996.
Their Lordships think that, had the granting of the 25 year licences been discovered earlier, a serious issue of discrimination might have arisen. As it is, the discovery was not made until it was evident that the appeal must succeed on the ground of hindrance in the enjoyment of freedom of communication. Mr. Robertson QC for the appellant presumably and understandably saw no need to...
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