Claude Gerald v Herman Sergeant and another (Montserrat)

Freedom of expression does not confer an unconditional right to use a government-controlled broadcasting platform. The ancillary right is a right to fair consideration for access, and access or withdrawal conditions must not be discriminatory, arbitrary or unreasonable. A broadcaster may exercise editorial control and enforce programming policies. If a contributor substantially departs from the agreed subject, immediate termination may be justified. Even if the right is engaged, a restriction may be upheld under section 13(2)(a) of the Montserrat Constitution Order 2010 where it is reasonably justifiable in a democratic society, necessary and proportionate in the interests of public order.

The appellant brought constitutional proceedings concerning the interruption of a live discussion about the medicinal and general uses of marijuana on a government-owned radio station. He alleged infringement of his freedom of expression under section 13 of the Montserrat Constitution. Redhead J dismissed the motion on 3 July 2015. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appeal on 10 November 2017 and affirmed that decision. The appeal to the Board concerned whether section 13 was engaged or contravened, whether any interference was justified, and what remedies were available.

The Board dismissed the appeal and advised His Majesty accordingly.

1. Engagement of the right. In broadcasting, the primary right not to be hindered in expressing opinions and imparting ideas must be distinguished from the ancillary right to fair consideration for access to a public broadcasting platform. The latter protects against access being denied or withdrawn on discriminatory, arbitrary or unreasonable grounds. The distinction in R (Pro-Life Alliance) v British Broadcasting Corpn [2003] UKHL 23; [2004] 1 AC 185 and the approach in Benjamin v Minister of Information and Broadcasting [2001] UKPC 8; [2001] 1 WLR 1040 were applied.
2. Editorial control. Access to a government-controlled station cannot be unconditional. The broadcaster may exercise wide control over operations and programming, as recognised in Central Broadcasting Services Ltd v Attorney General [2006] UKPC 35; [2006] 1 WLR 2891. The fact that internal approval procedures may not have been followed does not necessarily answer whether the policies applied to an invited contributor were discriminatory, arbitrary or unreasonable.
3. Application. The concurrent findings that the appellant had been given a limited platform to discuss the medical uses of marijuana, but had substantially departed from that subject by promoting its general use, were not disturbed. Applying the Board’s practice concerning concurrent findings, identified in Devi v Roy [1946] AC 508, Dass v Marchant (Practice Note) [2021] UKPC 2; [2021] 1 WLR 1788, and Sancus Financial Holdings Ltd v Holm (Practice Note) [2022] UKPC 41; [2022] 1 WLR 5181, the Board held that the station manager was entitled to terminate the broadcast immediately. The decision was not discriminatory, arbitrary or unreasonable, so section 13 was not engaged.
4. Alternative justification. If section 13 had been engaged, stopping the discussion was reasonably justifiable in a democratic society in the interests of public order under section 13(2)(a) of the Montserrat Constitution Order 2010. Marijuana was illegal in Montserrat, and the intervention was necessary and proportionate. The Board did not decide whether section 13(2)(b) supplied an additional justification. The issue of remedies therefore did not arise.

1. Privy Council. On 18 September 2024 the Board dismissed the appeal and advised His Majesty accordingly.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat). On 10 November 2017 it dismissed the appeal and affirmed the decision and order of the High Court.
3. High Court of Montserrat. Redhead J (Ag) dismissed the constitutional motion on 3 July 2015.