The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal yesterday rejected Omar Archer’s appeal against a Supreme Court judge’s decision to dismiss his motion for constitutional relief concerning a criminal libel charge brought against him six years ago.

Archer was charged in 2015 with intentionally and unlawfully publishing defamatory material about a local reporter in April of that year.

Prosecutors said he uploaded a post on his Facebook page claiming the journalist had tested positive for a sexually transmitted disease in an attempt to defame her character.

Archer was initially arraigned in September 2015, but was re-arraigned in November 2016 at which time he pleaded not guilty.

The trial began on November 28, 2016, and after the close of the prosecution’s case, a no-case submission was made and rejected by the magistrate.

According to court documents, when it was time for the defence to present its case, Archer’s new legal team, headed by Fred Smith, QC, “raised the constitutionality of the criminal libel law and requested a reference of the matter to the Supreme Court”.

After the magistrate agreed to the request, Archer filed a motion to seek relief inclusive of a declaration from the court stating, “the laying of the charge, prosecution, trial and liability of Archer to conviction and sentence to a fine and/or imprisonment for up to two years for the offence of intentional libel were void, illegal and of no effect,” as they breached his constitutional right to freedom of expression.

However, Justice Loren Klein dismissed Archer’s application after ruling that Section 315(2) of the Penal Code, “though admittedly a prima facie interference with Article 23(1) rights,” could not be considered unconstitutional as it was a “saved law within the meaning of Article 30(1)”.

Archer appealed the judge’s decision.

However, after reserving their decision in May, Justices Sir Michael Barnett, Roy Jones and Carolita Bethell yesterday dismissed Archer’s appeal with costs to the respondent to be taxed if not agreed.

In their judgement, delivered by Sir Michael, the panel said they did not find that Section 315(2) of the Penal Code was unconstitutional or a breach of a person’s rights to freedom of expression.

“The issue the court must decide is whether the offence of intentional libel could withstand a constitutional challenge, having regard to the right to freedom of expression guaranteed by Article 23 of the Constitution,” Sir Michael said.

“This issue was decided by the Judicial Committee of the Privy Council in a case arising from Grenada whose relevant constitutional and statutory provisions are identical to those in The Bahamas. The Privy Council accepted that the offence of intentional libel is a restriction on the right to freedom of expression but found that the objective of the offence was ‘sufficiently important to justify limiting the right to freedom of expression.’ This court is bound by that decision.

“…For these reasons, we dismiss this appeal. The appellant having sought orders for costs in this court had he succeeded in his appeal, having failed in this appeal is ordered to pay the respondent’s costs of this appeal, to be taxed if not agreed.”