MONDAY, JUNE 18: In what's being hailed as a victory for the public, Chief Justice Richard Ground today effectively lifted a gag order on the press. In a much-anticipated ruling, he refused to order an injunction barring publication of details from a five-year-old police probe into the Bermuda Housing Corporation.
The government was seeking a temporary injunction until a full trial of the case for a permanent injunction could be held.
It's only a partial victory for the press, however; Mr. Ground granted the government permission to appeal his decision to the Court of Appeal: "It is a matter of great public importance that should be ventilated at that level," he said.
The temporary injunction will remain in effect until the Court of Appeal makes a ruling. The Court of Appeal is due to sit tomorrow, Tuesday, giving barrister Delroy Duncan, for the government, the opportunity to file his appeal.
After that, Mr. Ground said, the decision on whether or not to continue the suspension of the injunction rests with the higher court.
Mr. Ground ruled that "the media's constitutional right to inform the public about serious allegations concerning important public figures" outweighed concern about the confidentiality of police investigations.
Speaking of the published allegations of improper conduct by government ministers in regard to BHC activity in 2002, the Chief Justice said: "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 lives of those concerned. They touch upon their conduct in office."
Mr. Ground expressed the view that the public interest was, therefore, "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."
As the matter stands, there could still be a full trial of the government's case in the Supreme Court.
If the Court of Appeal upholds the Chief Justice' decision, though, the result of a trial would have little effect in keeping the rest of the leaked information out of the public domain.
Any trial could still award damages to the government and against any media organisation that used the leaked information - but would not prevent its publication.
In his judgement, Mr. Ground squelched much hope of a permanent bar, even if the government won a trial: "...I consider that the defendants (media) have demonstrated to me that this would never be an appropriate case for a permanent injunction."
The government's action came after both broadcaster ZBM News and weekly newspaper The Mid-Ocean News revealed details from the police BHC files in late May and early June.
Two men have been reportedly arrested and released on police bail in connection with the leak.
The original case files have gone missing and the only copy in the possession of the police is now overseas for forensic analysis.
Indeed, Deputy Commissioner Roseanda Young said in her affidavit that the information so far released by the media represents "only a fraction of the contents of the documents which have been stolen."
Mr. Ground made clear that he was letting the government appeal his decision only because of the public importance of the issues of confidentiality and freedom of expression.
The other reason would have been if the government had an arguable case in favour of an injunction or there was some compelling reason for the restraint - things Mr. Ground said were lacking.
The Bermuda Sun, despite having never been in possession of the confidential police files, had opposed the injunction, largely on principle. In an affadavit to the Supreme Court, editor Tony McWilliam had stated that "the public's right to know about the questionable actions of elected officials far outweighs any concerns about any possible breaches of confidence" - a sentiment that chimes with Mr. Ground's ruling today. Mr. McWilliam said of today's judgment: "The Chief Justice made a tough decision that will put some noses out of joint but it was the right call for the country overall and for that, he should be applauded. It's a decision framed solidly in law but grounded in common sense."
After today's hearing, Royal Gazette editor Bill Zuill was in full support of what he termed "a very difficult decision for the Chief Justice" that recognised "the right of the public to know about allegations of fiscal impropriety by prominent public figures."
"This is an important day for freedom of speech in Bermuda," he said.
In his judgement, Mr. Ground reminded that the government officials named in the Mid-Ocean News report were not parties to the proceedings but still have the right to sue if they think they have been defamed.
He also observed that legal action in the form of disciplinary or criminal proceedings can be taken against "disgruntled police officers" who hand over confidential information to the media.
