Chief of Police v Powell

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 23 July 1968
• Neutral Citation: KN 1968 HC 2
• Docket Number: No. 108 of 1967
• Date: 23 July 1968

The West Indies Associated States High Court

Glasgow, J.

No. 108 of 1967

Chief of Police

and

Powell

Constitutional law - Civil rights — Freedom of speech.

Facts: The defendant was charged under section 3A (a) of the Public Meeting and Processions Ordinance Cap. 302 with speaking at a meeting without first obtaining permission in writing for such purpose from the Chief of Police. Whether the above section contravened section 10 of the Constitution in that made no provision that was reasonably required in the interest of public order and was merely an arbitrary power given to the Chief of Police.

Facts: Whether paragraph (a) of section 3A of the Public Meeting and Processions Ordinance Cap. 302 contravened sections 10 and 11 of the Constitution.

Held: That the law in question was not required in the interest of public order or in the interest of defence, public safety, morality or health, that it constituted an arbitrary power given to the Chief of Police and was invalid.

Held: That the section contravened the Constitution but that offences contrary to the Act committed before the 27 February 1967 when the Constitution came into force were not affected by the Contravention.

Glasgow, J.

1 On the 7 ^th March 1967 a complaint was made before the Magistrate, District “A” by the Chief of Police against each of the defendants Michael Powell and Warren Thomas for that he on the 26 ^th day of February 1967, at Basseterre, in the Parish of St. George, in the Magisterial District “A” in the Island of St. Christopher, in a certain public place to wit, North Square Street, did speak at a meeting without having first obtained permission in writing for such purpose from the Chief of Police, contrary to s. 3A (a) of the Public Meetings and Processions Ordinance Chapter 302 of the Revised Laws of St. Christopher, Nevis and Anguilla, 1961, as amended by the Public Meetings and Processions (Amendment) Ordinance, 1967, No. 4 of 1967, of St. Christopher, Nevis and Anguilla.

2 The two defendants were duly summoned to appear before the Magistrate, and in March 1968 the taro cases—which were numbered 107 of 1967 and 108 of 1967, respectively were heard together in the Magistrate's Court, District “A”.

3 Four witnesses., including the Chief of Police, gave evidence on behalf of the prosecution. At the close of the prosecution case Mr. G. R. Boon, counsel for the two defendants, stated that the defendants do not deny that they spoke at the public meeting without first having obtained permission in writing for such purpose from the Chief of Police. Mr. Boon argued, however, that certain fundamental rights contained in the Constitution of this State—more specifically in ss. 10 and 11 are guaranteed to citizens in this State, and that the legislation under which the defendants are charged was “not reasonably necessary in the interests of defence, public safety, public order, public morality or public health”, and is therefore a contravention or” the said sections, and repugnant to the Constitution. Counsel for the defendants therefore invoked ss. 16 and 99 of the Constitution and requested the learned. Magistrate to refer the matter “to the High Court for determination by that Court (as per s. 16 (3) and perhaps 99(1)”.

4 The Magistrate found as a fact that a prima facie case had been made out against each of the said defendants in respect of the offence with which he was charged.

5 After hearing Mr. Lee Moore, counsel for the complainant, the Magistrate acceded to the request of counsel for the defendants and referred the matter to this Court for its decision thereon.

6 On Friday, the 28 ^th June 1968 this Court heard arguments by Dr. W. V. Herbert on behalf of the defendants and by Mr. Lee Moore on behalf of the complainant.

7 Before the Curt proceeded to hear the arguments of learned counsel both counsel at the Court's invitation, agreed that the following was the real question referred to the Court for its decision, viz.: “Does paragraph (a) of s. 3A of the Public Meetings and Processions Ordinance, Cap. 302, as amended by the Public Meetings and Processions (Amendment) Ordinance, 1967 (No. 4 of 1967) contravene s. 10 and/or s. 11 of the Saint Christopher, Nevis and Anguilla Constitution, 1967”.

8 The Constitution of Saint Christopher-Nevis and Anguilla (hereinafter referred to as the Constitution is set out in Schedule 2 to the Saint Christopher, Nevis and Anguilla Constitution Order, 1967 ( S.I. 1967 No. 228). That Order which came into operation on the 27 ^th February 1967 provided that the Constitution should come into effect in this State on the same day.

9 The two defendants—Powell and Thomas—are charged with offences alleged to have been committed on the 26 ^th February 1967, the day before the Constitution came into effect.

10 The section of the amending Act, which the two defendants are alleged to have contravened became law on The 23rd February 1967, four days before the Constitution, came into force.

11 The Public Meetings and Processions Ordinance (now Cap. 302) came into force on the 13 ^th March 1948. That Ordinance—according to its long title—was an Ordinance to empower the Governor to prohibit meetings and processions in certain circumstances and to make other provision in the interest of good order and the public safety. Section 3 of the said Ordinance, as it appears in Volume V of the Revised Edition (1961) of the Laws of the State, provides that where at any time it appears to the Administrator in Council to be in the interest of good order or the public safety so to do, he may by proclamation (subject to the provisions of subsection (4)) prohibit in any public place in any parish, district, city or town in the Colony –

• (a) all meetings, gatherings and assemblies of persons;

• (b) all processions and marches;

• (c) all persons from organizing, holding or speaking at or attending any meetings, gatherings and assemblies of persons;

• (d) all persons from organizing any processions and marches.

• Section 3 of the said Ordinance also provides that every proclamation under that section

• (a) shall remain in force for a period of not more than fifteen days, without prejudice to the issue of a further proclamation at or before the end of such period.

• (b) shall be published in the Gazette and local newspapers in the Colony,

• (c) may at any time be varied, altered, amended or revoked by the Administrator in Council.

12 For the purposes of the said Ordinance “public place” includes any road, street, square, sidewalk, alley, court, path, wharf, pier, jetty, bridge, shop, courthouse or any other place to which the public have access or are admitted without payment.

13 By the Public Meetings and Processions (Amendment) Ordinance, 1967 (No, 4 of 1967) the following section was inserted immediately after s. 3 of the 1948 Ordinance: –

“Permission of Chief of Police 3A. Notwithstanding anything contained in s. 3 of this to be obtained. this Ordinance, no person, except a person acting bona fide in pursuance of the provision of subsection (4) of that

section shall –

• (a) organise, hold or speak at any meeting, gathering or assembly of persons;

• (b) organise or take part in any procession or march;

• (c) use any loudspeaker or other noisy instrument for the purpose of announcing or summoning any meeting, gathering or assembly of persons, procession or march

in any public place in the Territory or any pert thereof or in any public place in any parish, district, city or town in the Territory without having first obtained permission in writing for such purpose from the Chief of Police (which permission it shall be discretionary in the Chief of Police to grant or withhold)”. “Chief of Police” is defined as including any police officer in charge of a police division of the Territory as provided in s. 3 of the Police Ordinance (Caps 181)”.

14 It was argued by Dr. Herbert, that paragraph (a) of s. 3A of the 1948 Ordinance as amended by the 1967 Ordinance contravenes the constitutional provisions, in particular ss. 10 and 11 of the Constitution, and that the provisions of the Constitution apply in considering the cases against the two defendants. Dr. Herbert stated that the Constitution did not create new rights and freedoms, though Fundamental Rights and Freedoms are for the first time enshrined in a Constitution to be protected not by the Legislature but by the Courts. He submitted that the rights of freedom of expression, freedom of association and freedom of assembly always existed at common law, and that they are only now being protected and spelt out under the constitutional provisions.

15 In support of his argument Dr. Herbert read s. 1 of the Constitution, which is in the following terms:–

“Fundamental rights and freedoms

• 1. Whereas every person in Saint Christopher Nevis and Anguilla is entitled to the fundamental rights and freedoms, that is to say, the right whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely –

  • (a) life, liberty, security of the person and the protection of the law;

  • (b) freedom of conscience, of expression and of assembly and association; and

  • (c) protection for the privacy of his home and other property and from deprivation of property without compensation

the provisions of this Chapter shall have effect for the purpose of affording to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or public interest”.

16 Dr. Herbert next referred to s. 10 of the Constitution, subsection (1) of which provides that except with his own consent, no...