Independent Publishing Company Ltd v Attorney General of Trinidad and Tobago & Anor (Trinidad and Tobago)

Factual and Procedural Background

In 1994 a multiple-murder investigation led to the indictment of Defendant and nine co-accused. The ensuing publicity was described judicially as “sensational, unremitting and scandalous.” After an unsuccessful attempt to stay the criminal trial, the matter was fixed for June 1996.

On 10 June 1996, in chambers, counsel for the accused revealed that one co-accused intended to plead guilty and testify for the State in exchange for a Presidential pardon. Fearing prejudice to jury selection, both defence and prosecution invited Judge Jones to order the media to postpone reporting this development. The judge therefore issued a non-publication order (“the 10 June Order”).

Despite the order, Company A’s newspaper published three articles on 14 June suggesting that an accused person had turned State witness. Editor Appellant 1 and freelance journalist Appellant 2 were summoned the same afternoon for contempt. After refusing requests for adjournment, Judge Jones convicted Appellant 1 (14 days’ imprisonment) and Appellant 2 (fine with default term). He also made a further non-publication order prohibiting any report of the contempt proceedings (“the 14 June Order”).

Both journalists appealed. Company B (publisher of a weekly journal) and Company A commenced separate constitutional motions under section 14 of the Trinidad and Tobago Constitution, alleging breaches of freedom of expression and, for the journalists, denial of due process. A High Court judge dismissed the motions; appeals were eventually heard together with the contempt appeals. The Court of Appeal (i) upheld the validity of both non-publication orders (majority), (ii) set aside both contempt convictions, and (iii) awarded Appellant 1 damages for breach of due process (majority).

Five further appeals were taken to the Privy Council: four by the media and journalists, and a cross-appeal by the State.

Legal Issues Presented

1. Whether a court possesses an inherent common-law power to postpone publication of reports of open-court proceedings.
2. If such power exists, whether the 10 June and 14 June 1996 orders were justifiable.
3. Whether Company B and Company A were entitled to constitutional redress for infringement of freedom of expression.
4. Whether Appellant 1 and Appellant 2 were entitled to similar constitutional redress.
5. Whether Appellant 1 was additionally entitled to constitutional damages for breach of the right to due process.

Arguments of the Parties

Appellants’ Arguments

• The common law confers no jurisdiction on a court to bind the press with postponement orders directed at the public at large.
• Consequently, the 10 June and 14 June Orders were ultra vires and invalid; any contempt convictions grounded solely on breach of those orders were unlawful.
• Even if valid, the orders disproportionately restricted freedom of expression guaranteed by section 4(i) and (k) of the Constitution.
• The contempt proceedings were procedurally unfair: virtually no notice, refusal of adequate adjournment, and absence of evidence.
• Appellant 1’s imprisonment therefore violated the constitutional right to due process.

Respondents’ Arguments

• Clement (1821) and subsequent authority demonstrate an inherent jurisdiction to postpone reporting where necessary to protect the administration of justice.
• The 10 June Order was necessary to secure a fair trial, given overwhelming prejudicial publicity and unresolved evidential rulings.
• The 14 June Order was ancillary and essential to preserve the efficacy of the first order.
• Constitutional motions were unnecessary; the proper course was to apply to the trial judge to vary or discharge his orders.
• Any procedural defects in the contempt hearing were cured on appeal; therefore no separate constitutional damages should be awarded.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Existence of Common-Law Power. After reviewing historical and comparative authorities, the Board concluded that the only apparent support for an inherent postponement jurisdiction was R v Clement, a case decided in unique circumstances and “too insecure a foundation.” Subsequent English and Commonwealth jurisprudence (including Leveller and Horsham Justices) either rejected or doubted such a power. Accordingly, any power to bind the public at large must be conferred by statute, not by the common law.

Issue 2 – Justifiability of the 10 June and 14 June Orders. Although made without jurisdiction, the Board assessed whether publication would nonetheless have constituted contempt applying the three-part proportionality test in Ex parte Telegraph Group. The court held that (i) contemporaneous reporting posed a substantial risk to the fairness of the pending murder trial, particularly jury selection and evidential rulings; (ii) postponement would eliminate that risk; and (iii) no less restrictive measure was available. The second order was necessary to protect the first. Thus publication would have been contempt irrespective of the formal validity of the orders.

Issue 3 – Corporate Applicants’ Constitutional Redress. Because section 14 expressly allows any person alleging infringement of constitutional rights to seek redress, Companies A and B were entitled to declaratory relief. The alternative remedy of applying to Judge Jones to vary his orders was uncertain and carried no right of appeal. The Board therefore granted a declaration that future reporting restrictions made without statutory authority would violate freedom of expression, but no further relief.

Issue 4 – Journalists’ Constitutional Redress. Unlike the corporations, the journalists had appealed their contempt convictions. Nevertheless, their constitutional motions were not an abuse of process: they sought to vindicate continuing freedom-of-expression rights, not collaterally attack convictions already quashed. They too were entitled to declaratory relief.

Issue 5 – Appellant 1’s Claim for Due-Process Damages. Relying on Maharaj (No. 2), the Court of Appeal had awarded damages. The Board distinguished Maharaj: here an appellate remedy with interim bail existed and was promptly used, so the legal system as a whole was fair. Following Hinds and Forbes, the Board held that ordinary judicial error, correctable on appeal, does not amount to a constitutional violation warranting compensation. The State’s cross-appeal therefore succeeded.

Holding and Implications

Holding: The Board declared that Trinidad and Tobago courts possess no common-law power to impose postponement orders on the press; such authority must be statutory. The media appellants obtained declaratory relief safeguarding future expression, but no damages. The cross-appeal succeeded: Appellant 1’s award of constitutional damages for breach of due process was DISCHARGED.

Implications: Trial judges may still issue warnings, and publication can amount to contempt if it frustrates in-court measures, but any binding postponement order requires legislative foundation and a right of appeal for the press. The decision clarifies the limited scope of constitutional redress where ordinary appellate remedies exist and emphasises proportionality when restricting press freedom.