R v Stewart (D)
| Jurisdiction | Cayman Islands |
| Judge | (Smellie, C.J.) |
| Judgment Date | 20 February 2003 |
| Date | 20 February 2003 |
| Court | Grand Court (Cayman Islands) |
(Smellie, C.J.)
Ms. C. Richards, Crown Counsel, as amicus curiae;
The respondent appeared for himself and CayWorld Ltd. in person.
(1) Att. Gen. v. Cayman Free Press Ltd., 1984 CILR 60, applied.
(2) Att. Gen. v. English, ELR[1983] 1 A.C. 116; [1982] 2 All E.R. 903, referred to.
(3) R. v. Evening Standard Co. Ltd., ex p. Att. Gen., ELR[1954] 1 Q.B. 578; [1954] 1 All E.R. 1026, applied.
(4) R. v. GriffinUNK(1988), 88 Cr. App. R. 68, dictum of Mustill, L.J. applied.
(5) R. v. Griffiths, ex p. Att. Gen., [1957] 2 Q.B. 192; [1957] 2 All E.R. 379, applied.
(6) R. v. Odhams Press Ltd., ex p. Att. Gen., ELR[1957] 1 Q.B. 73; [1956] 3 All E.R. 494, applied.
Electronic Transactions Law 2000 (Law 7 of 2000), s.32(1):
‘In proceedings against an intermediary or e-commerce service provider for an offence consisting of or arising out of the processing of an electronic record by means of his system, it shall be a defence for him to show that he was not the originator of the record and either-
(a) that he did not know, and had no reasonable cause to suspect that, the processing of the record would (apart from this subsection) constitute or give rise to that offence; or
(b) as soon as reasonably practicable after he knew or had reasonable cause to suspect that the processing of the record
would (apart from this subsection) constitute or give rise to that offence that-
(i) he took such steps as were reasonable to prevent such processing by means of his system; …’
Criminal Law-contempt of court-mens rea not essential-publication of prohibited material is strict liability offence and efforts to avoid publication and lack of intention therefore irrelevant-risk of interference with administration of justice to be assessed at time of publication-irrelevant that allegations later found to be justified
Criminal Law-contempt of court-Internet publication-order prohibiting publication by ‘any form of media transmission’ includes postings made by third parties on news and comments website-owner of website liable for publication
The respondent was charged with contempt of court.
Criminal proceedings against the four accused were suspended during an inquiry into an alleged abuse of the process of the court. To avoid prejudice to any proceedings that might take place in the absence of the jury, an order was made prohibiting ‘the publication of any material or information by any form of printed, electronic or other media transmission (public and private) relating to any legal arguments in this case in the absence of the jury …’ The order was widely published and media representatives were granted access to the inquiry proceedings so that they might remain informed of the legal issues.
The respondent owned and operated a news and comments website. In November 2002, various postings commenting on the trial appeared on the site. The respondent was personally informed of the order prohibiting publication and the possible breach and later in November he was served with a copy of the order. Further postings making express reference to the legal matters raised in the trial and also alleging misconduct appeared on the site in November and December. In an attempt to comply with the order, the respondent sought assistance to shut down the site, but was unable to contact his technician until December 2002. He instructed an employee to monitor the site and suspend suspicious postings and did so himself intermittently. It was possible to suspend postings within minutes,
though the respondent had neither ensured 24-hour nor weekend monitoring due to alleged lack of funds. He was then charged with contempt.
The Crown submitted that (a) by allowing the postings to be published on his website the respondent had breached the order and had committed a contempt of court; (b) the expression ‘publication’ in the order included facilitating the publication of prohibited material and therefore the respondent could not avoid liability by claiming that he was not responsible for them, simply because they had been made by a third party; (c) since the offence of contempt of court was one of strict liability, it was therefore no defence for the respondent to claim that he had not intended to breach the order, nor that, in the light of time and resource constraints on him, he had made a reasonable effort not to breach the order; and (d) the order prohibited the publication of general comments about the case as well as actual legal arguments.
The respondent submitted in reply that (a) he had not had any intention to breach the order and should not be held liable for an outcome that he had not intended; (b) as the mere website owner, he had not himself published the postings but somebody else over whom he had no control had done so, nor could he have prevented the posting because that process was instantaneous; (c) he had taken all reasonable steps to observe the order given his time and resource constraints and the court could not reasonably have expected him to have done any more to comply; (d) he had a defence as an intermediary or e-commerce service provider under the Electronic Transactions Law 2000, s.32, either because he had not known or suspected that the publication constituted an offence, or because he had taken reasonable steps to prevent publication; and (e) since the order applied only to those familiar with the actual legal arguments in the trial, and that he did not himself have any information about those arguments, the order did not apply to him.
The court also considered the meanings of the expressions ‘any material or information’ and ‘any form of media transmission’ to ascertain the scope of the order. It further considered the relevance of hindsight in contempt proceedings, given that the postings highlighted genuine problems with the case which only later came to light.
Held, finding the charge of contempt proved:
(1) Contempt of court was a strict liability offence. The test to be applied to determine the commission of the offence was whether the postings were likely to contain material or information that might breach the order. If they were, they risked interfering with the course of justice and there was therefore no need to establish either that the respondents had direct knowledge of them or of their contents or intended that result. The fact that the postings raised issues of genuine concern about the conduct of the trial (which in fact collapsed for those very reasons) did not mean that there could be no finding of contempt. The risk of interference with the course of justice by prejudicing the jury in the trial
had to be assessed at the time the offending material was published and not with the benefit of hindsight. On this criterion...
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