Francis v Chief of Police

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gordon C. J.,Lewis J.A.,St. Bernard J. A.
• Judgment Date: 28 July 1970
• Neutral Citation: KN 1970 CA 1
• Docket Number: No. 1 of 1970
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 28 July 1970

Court of Appeal

Gordon, C.J., (Ag.)

Lewis J.A.

Bernard, J.A. (Ag.)

No. 1 of 1970

Francis

and

Chief of Police

Appearances:

Dr. W.H. Herbert for the appellant.

E. Walwyn, Attorney General with D. Squires for the respondent.

Constitutional law - Civil rights — Freedom of Speech — Whether s. 5 of the Public Meeting and Precessions Act, 1965 contravened ss. 10 and 10 of the Constitution.

Facts: The appellants were charged with using a noisy instrument during the course of a public meeting without first obtaining permission in writing from the Chief of Police, contrary to section 5 of the Public Meeting and Processions Act, 1969. They argued that this law contravened sections 10 and 11 of the Constitution.

Held: The appellant failed to established under section 5 of the Constitution that he had a right to use a loud speaker at a public meeting and consequently to establish that he suffered a loss of any fundamental right reserved to him by the constitution. That the Act does not contravene the constitution.

1 Gordon C. J. (AG.): The appellant in these proceedings was charged with using a noisy instrument to wit a loudspeaker and amplifier during the course of a public meeting which he held at Basseterre on the night of the 29th June 1969 without first obtaining the permission in writing of the Chief of Police contrary to section 5 of the Public Meetings and Processions Act 1969 of Christopher, Nevis and Anguilla (hereinafter referred to this judgment as the Act).

2 Having heard the evidence in the matter the learned trial magistrate pursuant section 16(3) of the St. Christopher, Nevis and Anguilla Constitution Order 1947 (hereinafter referred to as the Constitution) referred certain questions arising out the undisputed evidence, in the matter to the High Court for determination.

3 The brief facts found by the trial magistrate were that at a public meeting held under the auspices of the People's Action Movement — a political party — at Pall Mall Square, Basseterre at 8:30 on the 29th dune 1969 the appellant addressed a crowd of about 500 persons through a microphone, the loudspeaker of which was mounted on a nearby car. No police permission was sought and none given for the use of the loudspeaker at that meeting in accordance with section 5 of the Act.

4 The following questions were referred by the Magistrate to the High Court: –

“Whether the legislation, by requiring police permission for the use of a microphone or other similar instrument at a public meeting, offends against sections 10 and 11 of the Constitution. In other words given a situation where police approval has already been obtained to hold a public meeting should a speaker for that meeting be put to the further requirement of having to seek police permission for the use of a microphone also?

Does the legislation in question have a restricting or qualifying effect on the free exercise of the freedoms guaranteed by the Constitution, such as freedom of speech and of assembly?

Does the said legislation get around, however unintentionally, these guaranteed, or inhibit these rights? Does freedom to speak lawfully at a lawful assembly of persons cover only the use of one's mere voice, but not a speaking instrument used for better or even adequate communication to the crowed?

This is the nub of the issue raised by the defendant, as understood by the Magistrate. This is the constitutional point on which the ruling of the High Court is sought”.

After hearing argument Renwick J. in a written judgment resolved the question thus: –

“Since in my view section 5 of the Act does not authorise infringement of the fundamental rights and freedoms guaranteed by sections 10 and 11 of the Constitution the discretionary powers conferred by section 5 of the Act on the Chief of Police are irrelevant,

I specifically leave undecided the question of judicial review of the exercise of the discretionary powers so conferred.

l therefore hold that section 5 of the Act does not contravene the provisions of sections 10 and 11 of the Constitution.”

5 Being dissatisfied with these answers the appellant has appealed to this Court. The following grounds of appeal were urged before this Court:

• (1) That the learned judge erred in deciding that section 5 of the Public Meetings and Processions Act 1969 did not contravene sections 10 and 11 of the Constitution.

• (2) That the learned judge erred in that he considered the discretionary powers conferred on the Chief of Police by the said Public Meetings and Processions Act to be irrelevant.

6 In support of his appeal Counsel for the appellant urged that permission to hold a public meeting in accordance with section 3 of the Act automatically included permission to use a loudspeaker. He contended that if this was not the case any further requirement under section 5 as to the need for permission to use a loudspeaker would b e a hindrance to one's freedom of expression and one's freedom to communicate ideas and information. Any law tending to hinder such enjoyment would be prima facie bad unless it could be shown from its scope to fall within the exceptions laid down in section 10(2) of the Constitution. As this legislation he submitted had not been shown to be reasonably justifiable, it was unconstitutional. He further urged that the unfettered discretion given to the police under the provisions of the section was an added reason for the section being unconstitutional.

7 Section 5 of the Act and section 10 and 11 of the Constitution read as follows:

• “5. (1) Any person who in any public place or at any public meeting uses any noisy instrument for the purpose of announcing or summoning any public meeting or public procession or during the course of any public meeting or public procession, in any case without having first obtained the permission in writing of the Chief of Police so to do, shall be guilty of an offence against this Act and shall be liable on summary conviction to a fine not exceeding one hundred dollars.

• (2) The Chief of Police may in his discretion grant permission to any person to use a noisy instrument for the purpose of any public meeting or public procession upon such terms and conditions and subject to such restrictions as he may think fit.”

• 10. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or to any class of persons) and freedom from interference with his correspondence.

• (2) Nothing contained in or done the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

  • (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

  • (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, telegraphy, posts, wireless broadcasting or televisions; or

  • (c) that imposes restrictions upon public officers and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

• 11. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.

• (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision: –

  • (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

  • (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or

  • (c) that imposes restrictions upon public officers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

8 The language of section 5 of the Act makes it quite clear that in order to use a noisy instrument which by section 2 includes a loudspeaker, at a public meeting a permit must first be obtained from the Chief of Police so to do.

9 The question however which falls to be decided here is whether the necessity for obtaining such a permit constitutes a derogation from the freedoms which sections 10 and 11 of the Constitution seek to preserve for the individual.

10 By the provisos of section 10(2) of the Constitution provision is there made for impositions of reasonable restrictions on the exercise of the freedoms conferred by the section on the individual. This being the case a loss of freedom as a consequence of section 5 of the Act can only be established if it can be shown that the act complained of does not fall within the scope of the provisos. The freedoms contemplated by section 10 can therefore only be enjoyed by individuals in so far as their enjoyment does not constitute a nuisance to others. If in fact it does then the exercise of that freedom is to that extent restricted by the Constitution.

11 Counsel for the appellant conceded that there is nothing unconstitutional in the Legislature regulating the use of loudspeakers but what he contended was wrong, as that...