THE public interest in the freedom of the media to disseminate information relating to those who submitted themselves for election as legislators overrode the public interest in maintaining the confidentiality of documents relating to a police investigation into allegations of corruption at the Bermuda Housing Corporation the Privy Council said yesterday.

The Privy Council so held, when giving reasons for having dismissed on October 29, 2007, an appeal by the plaintiffs, the Commissioner of Police and the Attorney General of Bermuda, from the dismissal by the Court of Appeal of Bermuda (Zacca, President, Justice of Appeal Nazareth and Justice of Appeal Ward) on June 25, 2007, of their appeal from the refusal by Chief Justice Ground on June 13, 2007, of their application for an interlocutory injunction preventing the defendants, Bermuda Broadcasting Co Ltd, Bermuda Press (Holdings) Ltd, DeFontes Broadcasting Co Ltd, Bermuda Sun Ltd and DeFontes Broadcasting (Television) Ltd, from publishing any new material based on missing documents relating to a police investigation.

James Guthrie, QC, Delroy Duncan, Rob Strang and Eugene Johnston, of the Bermuda Bar, appeared for the applicants. Saul M. Froomkin, QC and Alan W. Dunch, both of the Bermuda Bar, appeared for the defendants.

Lord Scott, giving the opinion of the Board ¿ the highest court of appeal for Britain and most of the British Commonwealth ¿ said the litigation had its origins in the unauthorised removal from the custody of the Bermuda Police Service a number of documents relating to an extensive investigation that the police, from 2002 to 2004, had carried out into the affairs of the Bermuda Housing Corporation, a statutory body.

In July 2004, the Director of Public Prosecutions, Mr Kulandra Ratneser, concluded that the investigation had not disclosed anything sufficient to warrant a criminal prosecution being brought against any of those concerned except one junior corporation officer. The investigation was brought to an end and the police files were placed in storage.

At some time between March 2007 and May 23, 2007, the police files were unlawfully removed. The identity of the perpetrators had not been discovered.

The police were unaware that the files had been removed until May 23 when ZBM broadcast an interview of Mr Ratneser, in the course of which documents or copies of documents were put to Mr Ratneser. On the following day ZBM broadcast a further programme in which a reporter referred to having had sight of the documents in the missing files.

On June 1, 2007, the Mid-Ocean News ran articles which referred to, quoted from, and in one case produced a facsimile, of documents contained in the missing files. Other defendants subsequently published and broadcast material derived from material that had been broadcast or published by those defendants.

The police instituted an investigation into the theft of the documents and joined the Attorney General in commencing proceedings against those responsible for the broadcasts and publications.

The articles in the Mid-Ocean News had a front page headline "Police probe of abuses went as high as Cabinet" with photographs of Mr. Nelson Bascome, former Housing Minister and Dr. Ewart Brown, the Premier. It said that the Premier was one of the subjects of the corruption investigation and named four other ministers who were also investigated along with other Government MPs.

The article then said that in the opinion of the Police Commissioner many of those named in the probe could be accused of nothing but bad ethics and that in the opinion of Mr Ratneser some of those under investigation escaped prosecution only because of the island's antiquated corruption laws.

The article said that leaked documents revealed that several senior Government MPs were involved in what were thought to be under-the-table deals and backhanders. Various allegations of improprieties between Ministers, former Ministers or MPs with the Housing Corporation were made.

Lord Scott said that there was no doubt that the allegations were in their nature defamatory of those against whom they were made.

Some might also represent breaches of confidentiality or of rights of privacy to which the individuals concerned were entitled. But the individuals who were the targets of the allegations were not parties to the litigation.

The critical issue was whether the public interest asserted by the police in preserving the confidentiality of their investigative material should trump the public interest in the freedom of the press to place before the public of Bermuda material of the sort disclosed in the broadcasts and publications that led to the litigation.

The Chief Justice, in refusing the interlocutory injunction, had taken the view that further evidence adduced at trial could not be expected to alter the weight of the competing interests.

Mr Guthrie pointed out that they were not seeking to restrain further publication of material already disclosed, and it was the publication of new material, as yet undisclosed, that derived from the police documents that the injunction was aimed at.

The evidence did not disclose what the new material might contain but the Chief Justice had thought it fair to infer that it would contain similar material to that already published.

Their Lordships would draw the same inference. The material so far had related to allegations of corruption and impropriety that involved individuals prominent in Bermudian political and commercial life. There was no reason to suppose that the defendants wished to make public any new material of a different character.

The Chief Justice, in striking the balance between the competing public interests, gave weight to operational difficulties that might be faced by the police if confidential records of investigations were disclosed but against that set the freedom of the press and the proper interest of the public in being informed about the dealings and character of those who submitted themselves for election to public office. He concluded that the balance came down on the latter side.

Mr Guthrie protested that the allegations had been fully investigated by the police and the investigation had shown no criminal prosecution of those prominent individuals was warranted.

His Lordship agreed that was so, but the test of whether or not a criminal prosecution should be brought was not the same as the test of whether disclosure to the public of confidential information relating to improprieties falling short of criminality in which prominent public figures were involved was justified.

It was, in their Lordships' opinion, impossible to read the articles in the Mid-Ocean News without concluding that the public of a democracy, where legislators and Ministers had to submit themselves regularly to free and fair elections, were proper recipients of information of the sort disclosed in the articles. It had not been suggested that the contents of those articles were other than a fair reflection of the contents of the documents on which the articles were based.

The local courts with their intimate knowledge of the state of public affairs in Bermuda were far better placed than their Lordships to strike the balance between the public interest in maintaining the confidentiality of the police files and the public interest in the freedom of the Bermudian media to inform the public of the matters disclosed.

Commissioner of Police of Bermuda and Another v Bermuda Broadcasting Co Ltd and Others

Heard before Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury