By Caribbean News Now contributor
PROVIDENCIALES, Turks and Caicos Islands -- A court order restricting the press from reporting details of one of the many ongoing corruption cases in the Turks and Caicos Islands (TCI) was successfully challenged by the local media last week.
On Monday, June 9, at the request of the defence, Justice James Robertson ordered that the media could only report the names of the defendants, judge and defence and prosecution counsel, and the date of any future hearings.
Under a heading “Penal Notice”, the order states that “If you disobey this order you may be found guilty of contempt of court and may be sent to prison, or in the case of a corporate entity, have your assets sequestrated.”
Concern was expressed locally that such restrictions unlawfully prevented the media from normal and permissible reporting of the trial itself and, further, prevented republication of information already in the public domain such as the nature of the charges and the details of the indictments.
On Wednesday, local attorney Beryn Duncanson petitioned the court on behalf of three media organisations to revise the order made in the case charging two other local lawyers, Tim O’Sullivan and Gordon Kerr, with cheating the public revenue.
Duncanson argued that an order restricting media reporting is usually made in exceptional circumstances where there is a real and substantial risk of prejudice to fairness of the trial or to proper administration of justice.
He said it is a discretionary power that is broad and ambiguous and imperils openness and transparency in the context in which the public needs it the most – when powerful figures, whose actions have public implications, are on trial.
The TCI’s constitution, which guarantees freedom of expression, states that, except with his or her consent, no person shall be hindered in the enjoyment of his or her freedom of expression.
This freedom includes freedom to hold opinions without interference, freedom to receive and impart (to the public generally or to any person or class of persons) ideas and information without interference, and freedom from interference with his or her correspondence or other means of communication.
Duncanson pointed out that nothing in any law or done under its authority shall be held to contravene this section of the constitution to the extent that it is reasonably justifiable in a democratic society, in the interests of defence, public safety, public order, public morality or public health.
"In the Turks and Caicos Islands there is no statutory provision which would give a court jurisdiction to make such an order in the circumstances and the common law rules of openness apply.” Duncanson argued.
Judge Robertson agreed to amend his order permitting the media to report on the offences that Kerr and O’Sullivan are charged with, along with the information contained in the indictments, which are a matter of public record.
Further the amended order expressly provides that the reporting restrictions shall apply only until the date of commencement of the trial, upon which date normal reporting of the trial will be permissible.
The trial was initially set to start last week but may not now commence for another year.
In the meantime, the purported scope of the order: “The publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of any detail or matter relating to these proceedings or the issues in this case,” appears to be somewhat improbable given that, as a practical matter, it can only be enforced on media organisations with personnel, offices, and assets in TCI’s limited jurisdiction.
Since other jurisdictions have different rules and practices in relation to the freedom of the press – for example, in the US, gag orders are usually limited to court officers and/or attorneys, not the media – such an order could also be viewed as somewhat quixotic given that online reports may easily be read in the TCI even though they may offend the terms of the order and, further, may have the unintended consequence of drawing even more attention locally and internationally to the circumstances of the case.
However, pursuant to the terms of the order, permissible reporting includes the facts that Kerr and O’Sullivan are alleged to have cheated the public revenue on or about August 14, 2006, of approximately $1.5 million in stamp duty by falsely representing the value of the property and land transaction in respect of the sale of a local property known as Emerald Cay.
The Crown alleges that they represented the price as $11 million (including $1 million for chattels) when in fact and in truth, the real value of the transaction was approximately $28 million.
Another charge reads that between January 1, 2005, and March 31, 2007, the two lawyers conspired with Timothy Blixseth, Andrew Hawes, Angelina Morron, Gary Di Silvestri and others to cheat the collector of stamp duty and the public revenue of stamp duty due and payable upon the sale by a company known as Worldwide Commercial Properties Limited to Emerald Cay Limited of land and real property known as Emerald Cay by falsely representing the value of the transaction as mentioned in the previous charge.
The third count alleges that between January 1, 2005, and August 31, 2006, Kerr and O’Sullivan conspired with Blixseth, Hawes, Morrone, Di Silvestri and others to falsely represent documents required for accounting purposes by the collector of stamp duty with a view to cause loss to the public revenue and for the gain of Blixseth, Hawes, Morrone and Di Silvestri by a false declaration of the value of land and property known as Emerald Cay.
O’Sullivan is a partner with Miller Simons O’Sullivan law firm, while Kerr is a partner with Misick and Stanbrook.