The media has a right to publish a leaked Police dossier on the Bermuda Housing Corporation scandal making serious allegations about public figures including Premier Ewart Brown, a lawyer argued in Supreme Court.

Saul Froomkin QC is defending the publishers of this newspaper and sister paper the Mid-Ocean News against attempts by the Police Commissioner and Attorney General to gag the media from airing further revelations from the secret file. He said legal precedent showed gagging orders should not be made “when to do so would be to cover up wrongdoings”.

And, he said of the Mid-Ocean News report that sparked the legal move: “The publication concerns allegations of gross misconduct by the leaders of this country. Those are the allegations contained, citing documents and individuals. If that’s not alleged iniquity, I don’t know what is. The public had, and has, a right to know.”

Delroy Duncan, lawyer for Commissioner George Jackson and Attorney General Philip Perinchief, argued that the Police report was stolen and therefore a breach of confidence committed when ZBM news and the Mid-Ocean News reported on it recently.

He said the court action has been launched against the media because the Police fear further disclosure of “sensitive” material from the documents.

Mr. Froomkin said there was no evidence the report was stolen, although the inference was it has been copied and disseminated. However, he said, even if the file was deemed to be confidential: “There is confidential information which the public may have a right to receive and others, in particular the press, may have a right and even a duty to publish even if the information has been unlawfully obtained in flagrant breach of confidence and irrespective of the motive of the informer.”

He cited Bermuda’s constitution, which gives the right of freedom of expression, as a key tenet of his case.

The leaked documents reportedly revealed that Premier Dr. Ewart Brown, former Premier Jennifer Smith and former Ministers Renee Webb and Arthur Hodgson were all investigated by Police looking into the BHC allegations. Construction boss Zane DeSilva was another prominent person investigated as part of the probe into allegations of corruption at the BHC, the documents reportedly showed.

When the investigation finished 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 the people 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.

Mr. Froomkin said neither Mr. Jackson nor Mr. Perinchief were the “the people alleged to be wrongdoers” in the Mid-Ocean article and told the court: “It should be noted that those persons that are so far named in the article have neither joined in this action to protect their rights, nor have they brought any action, so I query ‘who’s the Commissioner protecting?’ Is he, in fact, protecting the Police or is he protecting those who have not seen fit to protect themselves?”

In addition to Bermuda Press Holdings — publisher of The Royal Gazette and Mid-Ocean News — the Bermuda Broadcasting Company, Defontes Broadcasting and the Bermuda Sun are also defendants in the case and are contesting the injunction. Search warrants were issued earlier this month for the Police to search the offices of ZBM and the Royal Gazette / Mid-Ocean News after the news reports in question, although the latter was not executed.

Asking Chief Justice Richard Ground to gag the media from publishing further information from the dossier not already in the public domain, Mr. Duncan argued this could undermine public confidence in the Police. He also alleged that at least two of the defendants have handled stolen goods in receiving the documents, and publication cannot be justified as being in the public interest. “Making money is not a good enough reason. Selling papers is not good enough reason. Sensationalising is not a good enough reason,” argued Mr. Duncan. He told the court that in the circumstances of this case, the defendants intend to use to contents of the documents to “malign public figures”.

He said the Mid-Ocean article contained concerns about whether the prosecution should have proceeded further, but in his opinion it was wrong for the press to be used to “circumvent” the right of the DPP to make this decision. Mr. Duncan further argued that those figures put in the spotlight by the media reports had not had chance to defend themselves over comments made about them in the Police file. Mr. Froomkin countered that a broadcast by the Premier on the day the Mid-Ocean News carried details of the leaked report, robustly defended his personal reputation. “My learned friend (Mr. Duncan) says those persons have not had opportunity to defend themselves. We know Dr. Brown has come out publicly and said he’s been exonerated. I’m not sure if that’s correct, but that’s what he said,” said Mr. Froomkin.

The case continues.

‘The public has a right to know’