Judge orders payout for trial distress

  • Victory and settlement: Dwight Lambert (File photograph)

    Victory and settlement: Dwight Lambert (File photograph)

A man who fought a 14-year legal battle after he was humiliated in public over gay porn has been given $125,000 in compensation.

The Supreme Court ruled that Dwight Lambert, who was cleared on charges of importation of obscene material in Magistrates’ Court, deserved compensation for the breach of his human rights.

Mr Lambert said in a written submission to the Supreme Court that he felt “skinned alive” by the trial in the lower court and the subsequent media coverage.

He said: “These were very private and intimate details of my life, that I had never expected to share with anybody. It was complete and utter public shame and humiliation.”

Assistant Justice Kiernan Bell, in a decision released on August 21, found that Mr Lambert had suffered because of the charges and the publicity.

Ms Justice Bell wrote: “I accept the evidence of the plaintiff, that he has suffered severe emotional distress, humiliation, embarrassment, loss of personal dignity and hurt feelings, as a result of the infringements of his Constitutional rights.

“I find that his suffering was severe, for an extended period of time, particularly in the lead up to and during the trial.”

She added: “I further find that it is an aggravating factor that counsel for the prosecution, at the trial, advanced its case based on allegations that the content of the DVDs would incite sexual deviants and child molesters.

“The counsel have aggravated the injury by what they argued in court.

“These actions certainly increased the hurt feelings, embarrassment and injury suffered by the plaintiff.”

Magistrates’ Court heard at Mr Lambert’s 2007 trial that had brought DVDs featuring gay sex to the island in 2005, but that they were seized by customs officers on the grounds that they were obscene under the Obscene Publications Act 1973.

He was told to surrender the discs or face prosecution. Mr Lambert, however, insisted the legislation did not define “obscene”.

But he was in 2006 charged with three counts of the importation of obscene articles, but magistrate Khamisi Tokunbo ruled the prosecution had not proved the DVDs were obscene.

Puisne Judge Stephen Hellman found in 2017 that Mr Lamberts’s right to a fair hearing and freedom of expression had been breached as he could not have foreseen the DVDs would be classed as obscene.

Mr Lambert later launched legal action against the minister responsible for telecommunications at the time. He said in his statement to Supreme Court that his packages were seized because of bigotry as there had never been a prosecution under the 1973 Act before. Mr Lambert added that he was convinced straight pornography would not have been treated the same way.

He said that because his case was newsworthy, he received embarrassing publicity and felt shamed when his picture appeared in the media.

Peter Sanderson, Mr Lambert’s lawyer, argued in Supreme Court that Section 15 of the Bermuda Constitution allowed for redress for breaches of constitutional rights. He added that Section 15 said that “persons carrying on their life in Bermuda should be free from unjustified interference, mistreatment or oppression from the state”.

The section added that “if a person has suffered damage from such unjustified interference, mistreatment or oppression, that person is entitled to compensation”.

Michael Taylor, for the Attorney-General’s Chambers, did not dispute the facts of the case, but said there should be either no damages or nominal damages. Mr Taylor told Supreme Court there should be no redress for distress caused by the publicity of the trial and suggested Mr Lambert should take legal action against the media that reported on the case and Magistrates’ Court, which did not order the hearings to be held in private.

But Ms Justice Bell wrote: “I do not find these arguments persuasive. The plaintiff has no recourse against the court or any third parties such as the press who were simply reporting accurately on proceedings in open court.

“In fact, the plaintiff’s only available avenue for redress is in the constitutional arena.”

The judge ruled that the breaches of Mr Lambert’s freedom of expression and his right to freedom from interference were compounded by the infringement of his right to a fair trial.

Ms Justice Bell added: “These are significant constitutional rights and it is appropriate to recognise and uphold the importance of these rights with a vindicatory award.

“In the end, Constitutional redress can only go so far — and the court is mindful that no sum will truly compensate the plaintiff for the distress, humiliation, embarrassment, loss of personal dignity and hurt feelings he has suffered and continues to suffer as a result of the infringements of his constitutional rights.”

She awarded Mr Lambert $100,000 in compensation and a further $25,000 “vindicatory award” for the human rights breaches.

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