AG’s conclusion that judge’s order abused the sub judice principle is gravely misconceived

Dear Editor,

In the Guyana Chronicle of the 26th October, 2013, at page 9, the Honourable Attorney General with the pretended reverence of being the “protector of the public’s legal interest and the defender of the Constitution of Guyana,” concluded that the Honourable Justice Roxanne George “fell into error by issuing the said gag order. . .  the Order issued by the learned Judge cannot be supported  by legal principles . . . It is a misuse, if not an abuse, of the “sub judice” principle.  I am fortified in this view by the decision of the landmark English case of Wallersteiner v. Moir.”

Nowhere in the A.G.’s article did he set out the facts which were before the judge on which she exercised her discretion to make the said order.

During the hearing of the action between NICIL and Royal Investments, before the Honourable Justice Roxanne George, Counsel for Royal Investments drew the Court’s attention to several articles  published in the Guyana Times newspaper which were considered prejudicial to the fair determination of the hearing and the issues before the Court.

Justice George in the presence and hearing of Attorney-at-Law for NICIL said that she had no objection to the evidence taken in court being reported in the press provided that they do not contain expressions of opinions or analyses of the evidence which tend to prejudice a fair hearing and the determination of the issues before her.

In other words the judge did not want a trial by newspaper.

It is well settled law that the public has a right in good faith to criticize in public or private, the public act done in the seat of justice.  That right however, is subject to the proviso that the criticism must not impute improper motives to the judge or attempt to impair the administration of Justice.

While the decisions of the cases of Ambard v. A.G. of Trinidad and Tobago; R v. Commissioner of Police of the Metropolis Ex parte Blackburn; Wallersteiner v. Moir; Thomson v. Times Newspaper Ltd. referred to by the Attorney General in his said article all show that common law Courts are open to criticism by reasonable comment on, or protest at, a judicial act, yet the liberty of the press is no greater and no less than the liberty of the subject.

It is strange that the A.G. should criticize the judge in the press without referring to the facts on which the judge exercised her discretion before making the Order; was the A.G. so reckless not caring to know what the facts were on which her Order was made?  A conclusion unsupported by facts or based on falsified facts is worthless.   For that reason it has always been a counsel of prudence to disclose the facts from which one’s inference has been drawn.

In his rather extensive opinion, the A.G. failed to refer to the principle which applies when litigation is actively in suit. The Judge had a discretion to make a gag order to avoid a trial by the press.  I commend to the Attorney General the following cases for his further reading:

As long ago as 1742 Lord Hardwicke L.C. articulated the Court’s concern for trial by the press.  In The St, James Evening Post (Roach v. Garvan) (1742) 2 Atk. 469 the Lord Chancellor said:

“Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the publick against persons concerned as parties in causes, before the cause is finally heard.”

A more recent statement to a similar effect was made by Lord Justice Watkins in Peacock v. London Weekend Television (1985) 150 J.P. 71 at p. 80, he said:

“In our land we do not allow trial by television or newspaper.  Until the well recognized institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.”

In Times Newspapers Ltd. (1974) A.C. 273 Lord Reid stated at page 300:

“There has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be prevented.”

In A.G. v. Times Newspaper (1973) 1 AER 815 at 821 Lord Denning M.R. who had condemned the “sub judice” principle in Wallersteiner v. Moir (supra) on which the A.G. had relied, emphasized the principle of no trial by newspaper “when litigation is pending and actively in suit”. The Master of the Rolls said at p. 821:

“It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge, the jurors, or the witnesses, or even by prejudicing mankind in general against a party to the cause.  Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings.

“I regard it as the first importance that the law which I have just stated should be maintained in its full integrity.   We must not allow ‘trial by newspaper’ or ‘trial by television’ or trial by any medium other than the courts of law.  But, in so stating the law, I would emphasise that it applies only ‘when litigation is pending and is actively in suit before the court.   To which I would add that there must appear to be ‘a real and substantial danger of prejudice to the trial of the case or to the settlement of it.”

Having regard to the facts and the reportage by the newspapers, the Attorney General’s conclusion that the judge’s order “cannot be supported by legal principles” and that the judge “misused or abused the ‘sub judice’ principle” is itself gravely misconceived and bad in law. The only proper course of action is for the Attorney general to issue a retraction of his statement and offer an apology to the judge.

Yours faithfully,

Rex McKay, S.C.  

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