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Ministry appeal against $125,000 award to man in gay sex DVD case dismissed

Justice of Appeal: Dame Elizabeth Gloster

A court ruling which awarded a man $125,000 in damages after he imported gay sex DVDs has been upheld by the Court of Appeal.

Dwight Lambert won his claim for compensation last year after a 14-year legal battle in which he claimed legislators and the Department of Public Prosecutions had breached his human rights – but the decision was appealed by the telecommunications minister.

But Justice of Appeal Dame Elizabeth Gloster said in a written judgment that Mr Lambert had acted within his rights to question the law under which he was prosecuted.

She dismissed claims by the ministry’s lawyer that the damages were “excessive and wholly disproportionate” and said that she saw no grounds to reverse Assistant Justice Kiernan Bell’s findings.

Dame Elizabeth said: “The respondent’s claim was for redress that his constitutional rights had been violated.

“He sought redress from the government; the appellant was clearly the most appropriate, or, at least, an appropriate, defendant to that action whom, as a litigant in person, the respondent identified.

“In my judgment, it could not be said that the appellant, being one of many emanations of the Crown, and with conduct over obscenity matters, was not an appropriate party to join to the respondent’s claim.”

Mr Lambert was prosecuted under the 1973 Obscene Publications Act in 2007 after Customs officers discovered the DVDs.

But he was cleared of the charges because prosecutors failed to prove that the DVDs were obscene.

He later claimed the case should never have gone to trial and argued that the 1973 law ran counter to the Constitution.

Mr Lambert later took legal action against the Minister of Telecommunications, the Director of Public Prosecutions and the Bermuda Broadcasting Commissioners for compensation for the public humiliation he had suffered during his trial and won his case last August.

Assistant Justice Bell ruled that he had suffered “severe emotional distress, humiliation, embarrassment, loss of personal dignity and hurt feelings, as a result of the infringements of his Constitutional rights”.

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

The Minister for Telecommunications appealed the ruling on several grounds, including that the issue of compensation had never been put before the court, the sum was excessive, and that the law under which Mr Lambert was prosecuted was legitimate at the time.