Criminal libel case against lawyer is to be dropped
It was unconstitutional for lawyer Charles Richardson to be charged with criminal libel for making “unfair” and “sarcastically offensive” remarks about a detective on Facebook, a judge has ruled.
The case against Mr Richardson is to be dropped by prosecutors after they admitted he should never have been charged with unlawfully defaming Detective Inspector Robert Cardwell in May 2010.
Taxpayers will pick up the cost for the blunder, after Puisne Judge Ian Kawaley indicated in Supreme Court on Friday that he would award costs to Mr Richardson.
The detective in question, Inspector Robert Cardwell, expressed his disappointment over the ruling last night and condemned Mr Richardson for his “irresponsible” posting. He said he did not deserve what the prominent defence lawyer did, and is considering further legal action [see story on page 3].
Mr Justice Kawaley found the prosecution of Mr Richardson, who could have faced a year in jail if convicted, contravened his right to freedom of expression, as set out in the Bermuda Constitution.
The charge concerned a message Mr Richardson posted on his Facebook page about Det Insp Robert Cardwell, who had led an investigation into him in 2009, when he was charged with possession of 8.2 grams of cannabis and 0.71 grams of cannabis resin.
Mr Richardson wrote comments questioning why Det Insp Cardwell had taken an interest in him as a successful black male and questioned his character in relation to the investigation.
Mr Justice Kawaley said the comments, viewed against Bermuda's history of slavery, segregation and public concern about the over-representation of black Bermudian males in the criminal justice system, could be seen as “somewhat inelegantly” inviting debate on whether race influenced the decision to prosecute him for drug possession.
He noted that the Director of Public Prosecutions (DPP) ultimately made the decision to prosecute, not Bermuda Police Service.
The judge wrote: “Even if the applicant's comments were unfair (as they appear to me to be) and the innuendo about the Inspector wholly wrong (as it appears based on the evidence before me), it is difficult to see how this would justify the first criminal defamation charge in Bermuda for almost 30 years.”
He said Mr Richardson, 40, who has more than 1,500 Facebook “friends”, was expressing a personal gripe on the social networking site because he was hurt and upset at having to appear as a criminal defendant in Magistrates' Court.
“He gave vent to his sense of victimisation in the hope that his Facebook friends would furnish him with moral support. This support his Facebook friends duly (and very promptly) provided.”
The judge said it was hard to see what public harm was caused by the remarks which could have justified deploying criminal law, as hurtful as they no doubt were to the officer.
Mr Justice Kawaley concluded that Mr Richardson was entitled to a declaration that the summary offence of unlawfully publishing defamatory matter was “on its face invalid for contravening section nine of the Bermuda Constitution.”
In his ruling, he said the summary offence restricted freedom of expression, criminalised non-intentional defamation and was unnecessary since a private prosecution for libel was possible.
Mr Richardson appeared in Magistrates' Court in January accused of unlawfully defaming Det Insp Cardwell.
He successfully got his trial delayed so he could ask the Supreme Court to determine whether the charge breached his constitutional right to freedom of expression.
Bermuda Police Service, represented by senior Crown counsel Cindy Clarke, from the DPP's office, conceded that the charge did interfere with the lawyer's constitutional rights.
The Attorney General, who was also a party to the proceedings, took no firm position on the point.
Mr Richardson's lawyer Craig Attridge told
The Royal Gazette: “Mr Richardson is understandably pleased with the outcome of the application and the fact that the prosecution brought against him in the Magistrates' Court is to be discontinued in the light of today's judgment.
“It is clearly unfortunate in our view that the decision was taken to bring those proceedings in the first place; however, Mr Richardson is grateful to the court for upholding his constitutional application and, more fundamentally, his right to freely express his opinions.
“That having been said, Mr Richardson acknowledges that some opinions, no matter how honestly they may be held, are sometimes better left unsaid.
“For every right that is bestowed upon us as citizens in a free and democratic society, there comes an equally fundamental responsibility to exercise those rights in the best interests of our society.
“The key is to find the proper balance between the rights of the individual and the interests of society as a whole and in finding in favour of Mr Richardson in this case, we consider that the court has done just that.”
The UK-based Media Legal Defence Initiative (MLDI), which works globally to help journalists protect their right to freedom of expression, supported Mr Richardson's case and said last month it hoped for a “fairly strong judgement and one to say this is the way forward in a modern democracy.”
Bermuda Police Service did not respond to a request for comment and nor did Attorney General Michael Scott or the DPP.
The police officer at the centre of the Charles Richardson criminal libel case expressed disappointment at news the charge is to be dropped.
Detective Inspector Cardwell believes Mr Richardson, one of the Island's top defence lawyers, intended to damage his good reputation through an “irresponsible” Facebook posting [see main story].
He is now contemplating civil action against Mr Richardson.
Stressing he was speaking in a personal capacity, and not on behalf of the police service, Det Insp Cardwell said: “I am very thankful for the significant energy that was given by the judge in researching and drafting the detailed opinion given in this matter. Whilst I am disappointed, I respect the judgement.
“I will continue to argue that what Mr Richardson did on Facebook with his 'creative writing' was intended to be malicious. I suggest that it was intended to damage my reputation personally and professionally. I cannot think of any other reason for him to write what he did.”
Mr Richardson posted about the detective on Facebook after Det Insp Cardwell spearheaded an investigation into him possessing drugs. Mr Richardson subsequently admitted possessing 8.2 grams of cannabis and 0.71 grams of cannabis resin found during a police raid at his home.
According to Puisne Judge Ian Kawaley, who ruled the libel case should be thrown out, the posting appeared to invite debate on whether race influenced the decision to prosecute Mr Richardson, who is black.
Mr Cardwell told The Royal Gazette: “The comments were not true of any behaviour I have exhibited; they were unjustified, unwarranted and unhelpful in an environment that is fragile. The question he asked of his Facebook friends about me was not necessary and served no useful purpose.
“I suspect that when Mr Richardson made this irresponsible Facebook entry he was being fuelled by emotions that clouded his decision making. However, once the emotions that were driving him had calmed, he had ample opportunity to recognise his bad decision, 'man up' and apologise to me. He and I both know that I did not deserve what he had done.
“I have never been disrespectful to Mr Richardson or acted in a manner that is less than professional. I have built my reputation over the course of 23 years of membership in the Bermuda Police Service in which I have served my country and its citizens with absolute respect whilst demonstrating a high level of personal and professional integrity.
“I am conscious of the fact that a reputation takes a long time to build but can be destroyed in a few short words and that is why I filed the criminal complaint I did with the BPS. I am also entitled to the protections provided by legislation. I was aware that the only defence for Mr Richardson to the criminal complaint made was for him to prove that what he had said was in fact true. I was very confident this was not possible.”
Det Insp Cardwell said he felt the lawyer had embarrassed his own professional colleagues.
“There is a complaint with the Bermuda Bar as a result of Mr Richardson's actions in this matter and I hope that someone will be in touch with me shortly to update me on the status of the complaint,” he said.
“I have always been aware that there is an option for me to seek compensation through the civil courts. I will consider this option together with my attorney.”