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Contempt: protecting the future of the Fourth Estate

On June 21, 2000, the defenselessness of the Fourth Estate was exposed by what was notably an unprecedented and extreme punishment for a member of the press, marking a historic moment.

Journalist Obediah “Obie” Wilchcombe was sentenced to a four-day imprisonment in maximum security at then-Her Majesty’s Prison, Fox Hill, by then-coroner and magistrate, the late Winston Saunders, for not revealing the location of where he received a suicide note – which he read, live, on-air – that was alleged to have been written by convicted murderer John Higgs Jr.

Those who followed would recall Higgs’ story as one that shook the nation – a popular beautician sentenced to death for the 1993 murder of his wife Joan Butler (descendant of Sir Milo Butler) – who, just two days shy of his scheduled execution, seemed to have taken matters into his own hands, literally, by allegedly slitting both wrists, in what was the darkness and solitude of his “cramped cell with no opening for air or sunlight”.

To this day, many wonder how a man facing execution, whose prison cell should have been heavily guarded, managed to get his hands on something that led to his self-appointed death.

Yet, what also remains a concern is why imprisonment was deemed an appropriate penalty for Wilchcombe, as opposed to upholding his right as a journalist to protect the confidentiality of his source.

In the July 8, 2013, Constitutional Commission Report, it was recommended that consideration be given to “expanding Article 23 to expressly include a reference to freedom of the press and the media”.

Article 23(1) of the constitution currently states, “Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression. For the purposes of this article, said freedom includes freedom to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

Sadly, since the report, no changes have been made, as the recommendation has consistently been ignored by successive administrations, leaving members of news media, today, in an equally vulnerable position as that of Wilchcombe.

The sword of Damocles

The Greek parable tells the tale of Damocles, a courtier to Sicilian tyrant Dionysius, who once uttered how wonderful it would be to be king.

Intrigued, Dionysius granted Damocles a seat on his throne, ensuring that he was provided with the best food, service, perfumes, and scented candles.

However, while basking in his newfound position, Damocles noticed a sword hanging above the throne by a single strand of horsehair, which instantly made him beg Dionysius for permission to return to his life as a courtier.

Like Damocles, members of the media today enjoy a great deal of freedom of expression, as is proven by the existence of privately-owned publications and radio and television stations, as well as the protection afforded when covering Parliament.

However, the gap in Article 23 of the constitution, which should explicitly refer to the press, looms over the profession.

The lead story of the June 21, 2000, Tribune edition titled, “Sentenced for silence”, reported that Wilchcombe believed that the judges and Saunders found his refusal to disclose his source or the location of the exchange as “obnoxious”.

However, according to Wilchcombe, he was mostly thinking about the bigger picture and how his imprisonment would be “a small price to pay” to bring about much-needed change and protection to the journalistic society of The Bahamas.

Had the Contempt of Court Bill been law at the time of Wilchcombe’s hearing, which he explained in a recent interview “is designed to protect the rights of journalists and provide leverage in matters where contempt may arise”, it is quite possible that his fate would have ended differently.

Just a little over two decades later, however, there remains only a draft of this bill, which Wilchcombe admitted was, at the time, in its “third phase”, “soon [to] be made law”.

Members of the media are often viewed as the enemy when they seek to hold those in authority to account.

In the same way that doctors, lawyers, politicians, members of the uniformed branches and many others take an oath or follow a code of ethics, so does the journalist, who is bound by the basic principles of truthfulness, accuracy, objectivity, impartiality, fairness, and public accountability.

Yet, without the constitutional protection clearly sanctioning these codes to be lawful, or the passing of the Contempt of Court Bill, the sword remains.

Thus, the case of Wilchcombe (the press) versus Saunders (the law) boils down to two factors: contempt of court and whose rights matter more. And, while this tension between the media and the law is healthy and can coexist, there needs to be appropriate provisions that strengthen the constitutional protection of the media, as suggested by the Constitutional Commission.

What constitutes contempt of court?

In its simplest form, criminal contempt of court is anything that a presiding judge deems “disruptive, insulting or threatening” to the trial, to themselves, or to anyone else in the courtroom, as defined by The New Oxford Companion Law. Even a witness’ refusal to be sworn in and interrogated can be considered contempt of court.

Thus, by these standards, Saunders, having presided over the inquest into Higgs’ death, found Wilchcombe’s refusal to reveal the location in which he met with his source to be in contempt of the Coroner’s Court, rather than Wilchcombe being granted the right to be tried by a jury of his peers.

Thus, the then-radio broadcaster, who was, seemingly, doing his job of reporting breaking news, was found on reasonable enough grounds to be confined to a maximum security prison cell with five other inmates – two of whom were in on armed robbery charges, one on charges of multiple murders, one suffering from tuberculosis (TB) and the other who was stricken with AIDS, according to Wilchcombe in a recent interview.

In fact, in a February 11, 2000, article, printed in The Nassau Guardian, titled, “Wilchcombe verdict Monday”, Saunders admitted that he “understood that Wilchcombe could not identify the source” but also noted that Wilchcombe’s “privilege did not extend to withholding the location of the meeting with the source”.

The question, however, is: Why didn’t it?

Then-Director of Legal Affairs Bernard Turner, in the same article, argued that the individual who handed Wilchcombe the letter may be “an abettor to Higgs’ apparent suicide”, adding that he and Saunders could not just “assume that a suicide has been committed”.

While Turner raised two valid points, as Part IV, Article 19(2)(c) of the Coroner’s Act, 2011, does permit the coroner to seize anything that he believes is reasonable evidence or material to the inquiry – in Wilchcombe’s case, the location of the exchange with his source – Part V, Article 33(a) and (b) modifies this act.

It states: “In holding an inquest, the coroner’s court – (a) is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and (b) must act accordingly to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.”

Therefore, the fact that the Coroner’s Court, in accordance with subsection (a), “may inform itself on any matter as it thinks fit” and “must act accordingly to… the substantial merits of the case”, in accordance with subsection (b), proves that Wilchcombe’s case could have been handled on its own merits, taking into serious consideration his right to maintain the confidentiality of his source.

Moreover, that the Coroner’s Court “is not bound by the rules of evidence”, which was apparent in Saunders’ acceptance of Wilchcombe’s right to maintain his source’s identity, begs the question of why the same precedence was not granted to Wilchcombe’s refusal to disclose the whereabouts of the exchange – a decision that leaves much room for doubt when assessing the respect that journalists and the profession are granted within and outside of the constitution.

The future of the Fourth Estate

While there has not been a similar incident to that of Wilchcombe’s in the 21 years since, the court can still exercise its right to force journalists to reveal their source or to submit documents that were received in confidence, as the laws have remained unchanged, hovering like the sword of Damocles.

Today’s journalists, however, like their predecessors, have the right to refuse to disclose any of this information, but are still not constitutionally protected from imprisonment, if the courts decide to resort to such an undertaking, which they are well within their rights to do.

In fact, two first-world countries, the US and the UK, have, very recently, run into the government trying to seize information from its local reporters, their data and their children’s cell phone data – reporters’ Apple, Inc. data in the US, and The Guardian versus the UK government.

If such recent incidents can occur in these countries that do have constitutional legislation for freedom of the press, imagine what can happen for a country like The Bahamas that does not have legislative protection for its press.

The Fourth Estate has proven, since the 18th century, its value and place in society and its power to frame and influence both public and political affairs.

It is now time for the law to prove the same.

• EDITOR’S NOTE: This article originally ran in June 2021.