A judge this afternoon dismissed an application by Premier Ewart Brown for a temporary gag against the press printing more allegations about him from a leaked Police dossier.

Puisne Justice Ian Kawaley had said during the case this morning that the Premier was apparently asking the court “to engage in a kind of circus in the midst of a General Election campaign”.

The judge said he had to be concerned about the court appearing to censor the press during the campaign.

Giving his ruling at 2.45 p.m today, Mr. Justice Kawaley said Dr. Brown’s case for a gag, pending a planned libel action against various media organisations, seemed “extremely weak.”

The judge also remarked: “Granting the application, in my judgement, would have created the strong impression that the judicial arm of Government had been co-opted by the executive branch of Government to effectively censor the press.”

Dr. Brown’s lawyer, Charles Richardson, had alleged that the media wished to print more about the probe into an alleged $8 million corruption scandal at the Bermuda Housing Corporation in a bid to swing the result of the General Election.

In addition to seeking a temporary gag order on the Island’s media over the topic, Dr. Brown has also launched actions for defamation over various articles on the BHC scandal in The Royal Gazette and Mid-Ocean News, and an action for breach of confidence.

He claims the police files were stolen, and the press has no right to print allegedly libelous and confidential material about him.

The action is separate from a gag attempt mounted by the Attorney General (AG) and Commissioner of Police (COP) to halt further publications from the dossier, already turned down by judges from the Supreme Court, Court of Appeal and Privy Council.

The Privy Council ruled last Monday that the public interest in a free press being able to report on the Police probe took precedence over the argument from the COP and AG that its confidential status should be preserved. The failed action on behalf of the Police and Government is reported to have landed taxpayers with a six-figure legal bill.

This morning, Mr. Richardson asked Mr. Justice Kawaley to delay the hearing in Dr. Brown’s personal case for eight weeks, as he wants to see the Privy Council’s full reasons for its judgment last week.

He requested that in the meantime the media be ordered on a temporary basis not to print further details about the Premier from the dossier.

Mr. Richardson also wanted the adjournment because he wished for the Police Commissioner to provide the Premier with a copy of the leaked dossier - of which the original is missing.

However, Mr. Justice Kawaley questioned Mr. Richardson on why he was seeking an adjournment that would delay the full hearing of Dr. Brown’s case until after the December 18 General Election.

He asked the Premier’s lawyer why he didn’t make his application sooner - so it could be heard together or shortly after the case brought by the C.O.P and AG, “so there could be a saving of costs and time and the matter would long have been resolved”.

He pointed out to the lawyer: “What appears to be the case is that your client has waited - with you, as a matter of record, observing the proceedings in the Privy Council - and after the Privy Council decision has come down and the press are no longer restrained...it appears that your client wishes to start the whole process again and the court is being asked to engage in a kind of circus in the midst of a General Election campaign.

“The court must be concerned about the integrity of the administration of justice and the appearance that could result if the court - without any justification - appeared to be censoring the press during the General Election campaign.”

Mr. Richardson argued in response that: “At no time is it more important to ask that the press acts responsibly than during the General Election. Yes, we have a free press but free does not mean free to be reckless and irresponsible.”

The judge, however, turned down the application for the eight-week adjournment.

Mr. Richardson then outlined his reasons for wanting the press to be gagged from reporting more on Dr. Brown from the dossier until the Premier can bring a libel action to trial.

“We say this is an attempt to steal the next election. What if we wake up and find we’ve been duped?” he asked.

He was questioned by Mr. Justice Kawaley on the basis for his argument - with the judge saying that according to legal precedent, the only way a judge can ban publication of material before it is published is if it can be judged to be “a pack of lies” that a jury could never find to be true. He gave, as an example, allegations made to the press by “someone who’s escaped from a mental hospital.”

Mr. Justice Kawaley indicated that this situation did not arise in this case, pointing out that three separate courts have already ruled that the material within the BHC dossier can be published in the public interest.

Mr. Justice Kawaley told Saul Froomkin QC - lawyer for this newspaper and the Mid Ocean News - that he did not need to hear his submissions on the matter.

The original media gag bid was mounted by the A.G Philip Perinchief and C.O.P George Jackson after ZBM television news broadcast extracts from the Police files on May 23, and the Mid-Ocean News published stories on June 1 containing further allegations.

According to extracts from the dossier published by the Mid-Ocean News, Dr. Brown, former Premier Jennifer Smith, former Minister Renee Webb, construction boss Zane DeSilva and others were investigated by Police looking into allegations of corruption at the BHC. When the probe concluded in 2004, then acting Director of Public Prosecutions Kulandra Ratneser said many of those investigated could only be accused of bad ethics. Mr. Ratneser also said some of those investigated escaped prosecution due to Bermuda’s antiquated corruption laws.

Since the BHC scandal - which is believed to have cost the taxpayer $8 million - one person has been convicted. Terrence Smith, a BHC officer, was found guilty and jailed last year on 41 counts of fraud.

No application for an appeal against Mr. Justice Kawaley’s ruling was made in court, and the issue of costs was reserved until later.

* See tomorrow’s Royal Gazette for the full story and reaction.