In English law, fair comment on a matter of public interest is allowed. Generally, it guarantees the freedom of the press to make statements on matters of public interest, as long as the statements are not made with ill-will, spite, or with intent to harm the subject of the comment. For decades, English courts have placed a higher burden on public figures to prove defamation, which includes both libel and slander. This is based on the view that if a person chooses public activity, that person must expect a higher degree of public scrutiny. For example, it is hardly likely that an English court will countenance a defamatory intent against a public figure where an allegation of conflict of interest is made on facts which are essentially true but could be capable of a more generous interpretation.
Fair comment is an ancient common law (judge made law) defence. But it was replaced in the Unites States in 1964 by a defence created in the case of New York Times v Sullivan in which the US Supreme Court decided that actual malice has to be proved to establish defamation. Since it is very difficult to prove actual malice in a journalist or a politician in the cut and thrust of journalism or politics, public life in the US has been largely liberated from the fear of defamation. While the defence of fair comment remained in the U.K. it was increasingly found to be too restrictive for adequate scrutiny of public officials. The courts of the UK have never adopted New York Times v Sullivan but began to test a more liberal approach to criticisms of public officials.
Ryan Crawford, whose middle name you will have to guess, is an attorney-at-law in practice in Berbice, and the son of the late Marcel Crawford, one of the Ancient County’s distinguished lawyers. He was the victim of a stop on the East Coast public road by police on Thursday last, presumably while on his way up to Berbice. Mr. Crawford became incensed and let loose as tirade of expletives, objecting to the stop by the police. Punctuated by a repetitive flow of profanity, Mr. Crawford declared his name, but with a qualifying expletive for his surname. With the same descriptive dexterity, he demanded that the police should tell him why he was … stopped, while at the same time informing the policeman that he can only be …. stopped if he was …. suspected of having committed a …. crime. He challenged the police to inform the …. President and the …. Vice President and whoever the …. else he wanted to and then drove off.
The incident was recorded and found it way on social media and, as is to be expected, there were many comments, some supportive and some condemnatory. The supportive comments expressed in various ways disapproval of the police activity of stopping vehicles on the road for no apparent reason, then requesting driving licences. A police stop is often accompanied by the inevitable request for a “raise.” Despite the decades of criticism of this type of police activity, nothing has ever been done by the authorities to restrain it.
I will stay away from the continuing controversies between the current and past Attorneys-General. To coin a phrase, when elephants rumble, it’s the insects in the grass who get trampled. I will likewise stay away from the merits or otherwise of the Chief Justice’s decision ordering the Minster of Legal Affairs to bring the Act into force. It is likely to be appealed and the Court of Appeal will decide. But why is the Judicial Review Act important to the public?
There is an area of law called ‘public law.’ While much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account. The instruments used by the courts in public law are of ancient origin, initially directed against the King, and are called writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these. They are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities. Currently, these are the only remedies available in public law.