Chief Justice: No right to sue for breach of statutory duty
Man who was acquitted of importing porn denied costs from The Crown
By Owain Johnston-Barnes
A man acquitted of importing obscene material has lost a legal effort to receive compensation for damages caused by the failed prosecution.
Dwight Lambert faced a Magistrates' Court trial in 2007 for bringing 28 pornographic DVDs to the Island but magistrate Khamisi Tokunbo found him not guilty because prosecutors couldn't prove the material was obscene.
Mr Lambert launched legal action against the Broadcasting Commissioners and the Minister responsible for Telecommunications last year arguing that the parties had failed their statutory duty to keep the Obscene Publication's Act 1973 in line with the attitudes of the public.
He claimed that if the bodies had carried out their duties, the material would not have been considered obscene under the act and he would not have been forced to deal with a trial.
Mr Lambert also sued the Director of Public Prosecutions (DPP), saying the case against him should never have been brought to court.
Despite being acquitted of all charges, Mr Lambert said the publication of the details of the case had hindered his ability to find work.
However, lawyer Garrett Byrne, representing the DPP, pointed out that any published allegation that the plaintiff had been guilty of importing any obscene material would be untrue.
In an ex tempore Judgement, signed earlier this month, Chief Justice Ian Kawaley wrote that the Obscene Publication's Act makes it an offence to import or otherwise deal with obscene articles and includes a regulatory mechanism which requires the minister responsible for Telecommunications and the Broadcasting Commission to review and monitor the act.
The legislation also envisaged that the minister would make regulations to classify certain magazines as “salacious” and others as completely prohibited, with the public being ably to apply to have new magazines classified.
The Chief Justice wrote that it did not appear regulations listing salacious magazines had been updated since 1989, and no regulations allowing the public to apply to have new magazines classified were ever passed.
“In general terms, it is easy to understands the broad complaint that the plaintiff seems to have,” he wrote. “That the relevant laws have not been updated and as a result he was exposed to a trial in which he was acquitted in circumstances where perhaps, if more modern regulations had been formulated, he might not have been prosecuted at all.”
The judge said there could be an argument made about the Act potentially conflicting of the freedom of expression protected by the Bermuda Constitution, but the case before the court must fail because there is no provision in the Act that creates an opportunity to sue for breach of statutory duty.
The Chief Justice also found it was not possible to challenge the DPP's discretion to prosecute given the circumstances and refused to give Mr Lambert the opportunity to add a new cause of action — specifically malicious prosecution — saying that in the seven years since the matter was heard there had been no previous hints of malice asserted by the plaintiff.
In his conclusion, the Chief Justice wrote that he had considerable sympathy for the plaintiff's general position, saying: “It does appear to me to be the case that the way in which the obscene publications are currently dealt with under the law does leave room for prosecutions to be launched in circumstances of doubt, where clearer and more modern rules enacted through regulations might well reduce the room for such doubt.
“And the courts should not really be exercising the function of policymaker. The courts should be deciding prosecutions under the act where it is clear that prosecutions should be laid.
“And it appears to me, admittedly on the basis of very limited information and a very cursory analysis of the act and the only regulations that appear to be passed under it, that the plaintiff's central grievance that the law is not up to date does have some substance to it.
“Unfortunately the particular legal route that the plaintiff has sought to channel those grievances through has no merit, and it is for these reasons that the plaintiff's claim is struck out.”