Editorial for 16 November: Nebulous court rules

For many years, the Caymanian Compass has been trying to
determine the rules for court reporting with regard to what is a matter of
public record and what can be reported without running afoul of sub judice
laws.

Years ago we asked Cayman’s attorney general for guidance on
this, which he said he would be glad to give, but only if the media formed a
press association, something that has never happened.

Eventually, the solicitor general, a high ranking police
officer and a Grand Court justice addressed some of the media houses and gave
guidance on what could or couldn’t be reported with regard to those accused of
crimes. The police understood something from these directions that no one else
in the room did and promptly announced they would no longer release the names
of those they arrested until they appeared in court.

We then thought we had some clarification when one of our
staff members interviewed Chief Justice Anthony Smellie for Cayman Financial
Review.

He said all pleadings filed in Grand Court are available to
the public, including defence and counterclaim pleadings. However, we have since
tried to get copies of those types of pleadings only to be told by the Court
staff that they weren’t available to the public. Several email queries about
this to the Chief Justice’s office have gone unanswered.

Mr. Smellie also said sub judice only applied to trials by
jury because trained judges wouldn’t be influenced by something printed in the
media. Yet this newspaper remains barred from reporting or posting website
comments about active court cases, even when they’re trial by judge alone.

When we have, in the judiciary’s opinion, breached these
nebulous rules, we have been called into account and sternly warned. However,
when other media houses flaunt the exact same rules, nothing is done and they
continue to write with impunity.

We will endeavour to always play by the rules of law, but
find it astounding that those in charge of administering laws refuse to tell us
what they are exactly and hold different media houses to different standards.
 

 

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14 COMMENTS

  1. Thank you, Caycompass…

    For raising this issue in an editorial, to which I can respond without having my comments on the issue censored because they are made in relation to an ongoing case before the courts.

    This Chief Justice has been able to play ‘god’ in the Cayman Islands because of a lack of the enforcable human rights statutes in the past; that is now no longer the case.

    Until now his word has been the de facto, unwritten law in Cayman, which has contributed to as many problems as it has helped to solve; Operation Tempura can be chalked down as one of those problems.

    While I am not a trained lawyer, I make sure to have a working understanding, in intelligent layman’s terms, of the law.

    This report on the ongoing controversy between Governor Duncan Taylor and the Chief Justice that has been reported in today’s Caycompass is a highly relevant one, although it might not be fully understood by 90% of Caycompass’s readers.

    Cayman’s Chief Justice, for has too long, ‘ruled the roost’ and now that the referred-to human rights laws are in place, he is trying to use the application of those laws as an excuse to provide a way of not having certain cases brought before a lower court in the Cayman Islands, before they are passed on for judicial review and is using the impartiality of judges as his reason ?

    If there has been any question of impartiality of judges in Cayman, it has never been evident to any great degree; why should it become an issue now that those same judges, including the Chief Justice himself, might have to be deciding human rights cases in Cayman ?

    The cases of magistrates and judges being removed in Cayman by the Governor’s orders, after a judicial committee review was unheard of until just recently when a grand court judge, Justice Levers, was removed at the request of this Chief Justice in what amounted to a questionable case involving professional rivalry, as much as it did misconduct by the removed justice.

    This ruling by the Judicial Committe of the Privy Council now says that those types of cases MUST now be brought to a lower court in the Cayman Islands where an accused judge has the right to have their human rights issues taken into account, the same as any other citizen.

    If this had been the case in the Levers incident, the outcome might have been totally different.

    Back to the issue of reporting on ongoing court cases…it has puzzled and annoyed me greatly that Caycompass and other news media, by request of this Chief Justice, cannot print comments from the public in cases that THEY have reported on…cases that are already in the public realm through the news media.

    This HAS TO BE a violation of free speech under the human rights statutes…

    And I fully expect to see a challenge to this rule under Cayman’s human rights laws in the very near future…in Cayman’s courts.

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  2. Legal rules with penalties attached need to be clear and known. If they are not clear and known they tend to be oppressive and any application of a penalty would likely be unjust. No one need take my word for that. In a recent Privy Council case Lord Hope quoted from the writings of Hobbes in approving that point;

    Thomas Hobbes, Leviathan (1651), Ch 31, para 3, made this point as clearly as anyone when, having declared in Ch 30, para 20 that a good law is withal perspicuous, he wrote:

    To rule by words, requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient, and clear promulgation, such as may take away the excuse of ignorance; which in the laws of man is but of one only kind, and that is, proclamation, or promulgation by the voice of man.

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  3. ‘Catch and release’ comments have misunderstood the issue.

    The problem is not obtaining information from the court, but rather having information already and then uncertainty about what to do with it because of the seemingly random application of subjudice rules based on the whims of the court.

    Moreover, the enforcement of the rules, when that does occur, seems only to proceed against the Caymanian Compass and not other media entities.

    Also, we should note Section 3(5) of the FOI Law – ‘This law does not apply to – the judicial functions of a court or the holder of a juidicial office or other office connected with a court.’

    Although the FOI Law has no application to the arguments we are making in this editorial whatsoever,.

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  4. …the enforcement of the rules, when that does occur, seems only to proceed against the Caymanian Compass and not other media entities.

    The Compass then has to make a choice. Accept the situation, or fight it.

    In the editorial you say:

    Yet this newspaper remains barred from reporting or posting website comments about active court cases, even when they’re trial by judge alone.

    How exactly is the Compass barred from reporting?

    The Compass is free to obtain its own legal opinion, and act accordingly and react to any action by the Courts or the Government.

    Editor’s note: We assure our readers, legal opinions are anything but ‘free’.

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  5. Having suffered the vagaries of what passes for contempt of court rules in the Cayman Islands I have a lot of sympathy with this editorial.

    If anyone is unfamiliar with what happened to me, over 1, 2 and 3 October 2008 the publication I had been working for printed a series of editorials naming me as a Crown witness, calling me a liar and generally making a rather crude attempt to undermine a future Grand Court trial. In doing so they also unlawfully attacked the reputation of members of the judiciary. No attempt was made to halt the publication of the material. Nothing was ever done about what was not only blatant contempt of court and abuse of the freedom of the press but also potentially criminal libel. The fact that at least two senior members of the Operation Tempura team and the prosecution lawyers involved in the on-going trial also refused act clearly muddied already pretty murky waters.

    That to me sums up a major failing in respect for the fundamental rule of law that the accused are innocent until proven guilty. It also opened the potential for trial by media and that is not a route the Cayman Islands wants to go down. In fact I have an email from Chief Justice Smellie, which has just been copied to the Compass, dated 18 February 2009 that appears to support this concern.

    Just over 20 years ago I worked in Winchester in the UK. That city boasts a large court complex that regularly hosts major trials, including some very high profile terrorist cases, so it was part of my regular work area. The way things work in the UK, whose laws form the basis of Cayman Islands Law, is pretty simple if it refers to an on-going case and you don’t hear it in open court you don’t report it. Ignore that and you will be talking to a judge about contempt.

    We worked under two simple rules. The first was until a person was charged with an offence you could report pretty much whatever you wanted to about them but just be darn sure it was verifiable. Once they were formally charged anything (and I mean absolutely anything) that didn’t come up in open court was off limits.

    Try reading – http://openjusticeuk.blogspot.co.uk/2012/02/beginners-guide-to-court-reporting.html or http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/crown_court_reporting_restrictions_021009.pdf

    – and there’s more material on this on the internet.

    I think the Compass doesn’t have any real problems here, they respect the basic rules and abide by them.

    As for the other media houses? I’ve just read one editorial that would earn the writer at least a very large fine in the UK and possibly 28 days jail time but, as with my former employer, they presumably know that nothing will be done about it.

    And that’s where the problem lies. Professional journalists, doing the job they are paid for, get picked on and become subject to arbitrary (and often unlawful) restrictions while everyone else writes what they feel like. It’s almost as though the professional journalists are being penalised for being professionals.

    Editor’s note: That last paragraph should have gone right into our editorial!

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  6. Editor’s note: We assure our readers, legal opinions are anything but ‘free’.

    I never said, or implied they were.

    The Compass needs to decide what is worth fighting for and what isn’t.

    But please don’t argue that a choice equates being barred.

    Editor’s note: Choices are easier to make with the appropriate information. Adherence to the law can only be achieved when the law is known. The newspaper shouldn’t have to be hauled into court just to find that out.

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  7. The newspaper shouldn’t have to be hauled into court just to find that out.

    Have you been?

    How exactly has the Compass been barred from reporting or posting website comments about active court cases, even when they’re trial by judge alone.

    Nobody should have to be use the courts to exercise rights. But it is naive and ignorant not to understand that in the real world, that is what is sometimes required.

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  8. From the below comment: ‘It is naive and ignorant not to understand that in the real world, that is what is sometimes required.’

    It is required in cases where interpretations of the law or the court rules are in dispute.

    However, the second paragraph of the editorial states: ‘Years ago we asked Cayman’s attorney general for guidance on this, which he said he would be glad to give, but only if the media formed a press association, something that has never happened.’

    We have asked the AG and the courts for the rules under which we are to be governed with regard to the reporting of sub judicial matters. They have not provided those rules, if indeed, there are any at all.

    The individual or entity must know the rules and laws by which they are governed if they are to follow them.

    In this case, ‘Tom M’ suggests we just go along our way and report matters and if someone feels we’ve violated some nebulous rules, then it can be decided in court, presumably by the same people who didn’t tell us what the rules were in the first place.

    That’s nonsense, sorry.

    Our request is quite simple. Tell us what the rules are and enforce any breaches of those uniformly afterward.

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  9. The public has asked us for examples of arbitrary enforcement, see below for just one worrying instance:

    http://www.compasscayman.com/caycompass/2006/02/01/CFP-challenges-court-order/#.UKatPa23ips.email

    To quote from the Grand Court judge in this story: ‘…if there are statements, which I consider to be prejudicial and which I consider might impair a fair trial or a fair result by this jury, I will cite those who publish such statements for contempt of court. If found guilty, they may well expect a fine in the six figure range if I hear the matter. If some other judge hears it, it is entirely up to them.’

    So it appears from the statement from the Grand Court judge in the above article, that judges can legislate from the bench whatever they feel is prejudicial withtout a set of rules laid out beforehand. Moreover, it is entirely up to the feeling of the specific judge what the fine for such infringement might be.

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  10. I find it interesting that the presiding judge referred to in that story (who I understand is now in private practice?) did absolutely nothing when, on 8 and 28 November 2007, my old employer in Grand Cayman published two letters clearly referring to his alleged misconduct.

    The allegations (and I do still have copies of the letters) were later referred to at an RCIPS Gold Commanders meeting and proved to be completely unfounded. He could have sued, why did he not do that?

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  11. Fair and accurate reports on court proceedings are privileged from actions for defamation on the basis that its would be impossible for witnesses and other actors to do their jobs properly if they could be subject to legal action as a result of giving truthful evidence. Likewise, privilege attaches to reporting of such proceedings in recognition that the public has a fundamental right to observe and been informed about the goings-on a publically funded institution of justice such as the courts.

    Justice Sanderson’s 2006 edict was in complete contradiction of these principles.

    Imagine whether the goings on in the below court hearing would have ever seen the light of day if Mr Sanderson’s 2006 standard had of prevailed.

    http://www.caycompass.com/cgi-bin/CFPnews.cgi?ID=10382340

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