Maurice Arnold Tomlinson v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Laing, J
• Judgment Date: 06 July 2016
• Neutral Citation: [2016] JMSC Civ 119
• Docket Number: CLAIM NO. 2015 HCV 05731
• Court: Supreme Court (Jamaica)
• Date: 06 July 2016

[2016] JMSC Civ 119

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Laing, J.

CLAIM NO. 2015 HCV 05731

In The Matter of The Constitution of Jamaica

and

In The Matter of An Application by Maurice Arnold Tomlinson, alleging a breach of his rights under sections 13(3)(a),13(3)(c),13(3)(g),13(3) (i)(i),13(3) (j) (ii),13(3)(o), 13(3) (p),13(3) (6) and 14 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011

and

In The Matter of an Application by Maurice Arnold Tomlinson for constitutional redress pursuant to section 19(1) of said Charter

and

In The Matter of an application made pursuant to Rule 56.9 of the Civil Procedure Rules, 2002 (CPR)

Between

Maurice Arnold Tomlinson

Appellant

and

The Attorney General of Jamaica

Defendant

Ms. Anika Gray , Attorney-at-Law for Claimant;

Ms. Carlene Larmond and Ms. Carla Thomas Attorneys-at-Law instructed by the Director of State Proceedings, for the Defendant;

Ms. Danielle Archer , Attorney-at-Law for the proposed Interested Party, the group collectively called ‘the Churches’ (Jamaica Association of Evangelicals, Ethiopian Orthodox Church, Independent Churches, Holiness Christian Church, Christian Brethren Assemblies Jamaica, Jamaica Cause and The Love March Movement);

Ms. Gillian Burgess , Attorney-at-Law for the proposed Interested Party, The Public Defender;

Mr. Ransford Braham Q.C. Attorney-at-Law instructed by Richards , Edwards , Theoc & Associates , for the proposed Interested Party, Jamaica Coalition for a Healthy Society;

Mr. Wendell Wilkins and Ms. Jameila Thomas , Attorneys-at-Law , instructed by Lelieth D. Lambie-Thomas & Co. Attorneys-at-Law for the proposed Interested Party, Lawyers Christian Fellowship Ltd

Ms. Caroline Hay for the proposed interested party Hear the Children's Cry Limited; and

Mr. Maurice Saunders , Attorney-at-Law observing for the group Christians for Truth and Justice; and

Administrative Law — Application to be heard — Factors to be considered — Whether applicants having sufficient interest — Effect of possible prejudice to Claimant — Extent of participation to be permitted — Whether intervention of Public Defender's supported by statutory remit.

IN CHAMBERS

Background

1 The Claimant is a Jamaican national who is an Attorney-at-Law and a homosexual. He has filed a Fixed Date Claim Form challenging the constitutionality of the criminal prohibition against and penalization of buggery between consenting individuals age 16 or older as contained in sections 76, 77 and 79 of the Offences Against the Persons Act, (OAPA), the Sexual Offences Act, 2009 and the Sexual Offences (Registration of Sex Offenders) Regulations, 2012 (‘the Claim’).

2 The Claimant is seeking constitutional redress pursuant to section 19 of the Charter of Fundamental Rights and Freedoms on the basis that these sections criminalize his consensual private acts of intimacy with another man above the age of consent and violate his rights as guaranteed by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011. More specifically, the Claimant alleges that these sections breach sections 13(3)(a), 13(3)(c), 13(3)(g), 13(3)(i)(i), 13(3)(j)(ii), 13(3)(o), 13( 3)(p), 13(3)(6) and 14 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011.

3 Pursuant to an order of Brown Beckford J on 23 February 2016, the First Hearing of the Fixed Date Claim Form was adjourned to April 26, 2016 for the hearing of Applications to be added as Interested Parties which were filed by the following parties:

• (i) The Public Defender, (on January 14, 2016);

• (ii) Jamaica Coalition for a Healthy Society (‘JCHS’) (on January 29, 2016);

• (iii) Lawyers Christian Fellowship Ltd. (on January 29, 2016); and

• (iv) The groups collectively called ‘The Churches’ (comprising Jamaica Association of Evangelicals, Independent Churches, Ethiopian Orthodox Church, Christian Brethren Assemblies, Holiness Christian Church, Jamaica Cause and The Love March Movement) (on February 15, 2016)

On 1 ^st April 2016 Hear the Children's Cry Limited filed a Notice of Application. These five parties are referred to herein collectively as ‘the Applicants’.

THE APPLICATIONS

A. Jamaica Coalition for a Healthy Society

4 In a welcome display of co-operation the Applicants, (without the prompting of the Court) agreed to structure their respective presentations so as to maximize the time that was fixed for the hearing of the applications. In pursuance of this arrangement, Mr. Ransford Braham Q.C., made his presentation second, which he did on behalf of the (‘JCHS’). Learned Queen's Counsel made comprehensive submissions on the relevant law which are equally applicable to the other applicants. In an effort to avoid unnecessary repetition in this judgment and in keeping with the spirit of the Applicants' approach, I will first treat with the application on behalf of the JCHS. The JCHS sought the following court orders:

• a. to be treated, joined and/or added as an Interested Party with the right to be heard at all hearings of this claim and any appeal(s) that may be filed.

• b. to be permitted to appear in person and/or by counsel and make written and oral submission at the hearings.

• c. to be permitted to give evidence in this claim by Affidavit.

• d. to be permitted to apply for the appointment of an expert.

5 By way of an affidavit sworn to by its director Wayne West, the JCHS asserted that it had a sufficient interest in the claim. It was averred that in keeping with its objects as set out in its Articles of Incorporation the JCHS has been:

• a. fostering the physical, emotional, spiritual and mental well-being of Jamaicans by promoting a nation-wide understanding of Judeo- Christian beliefs as delineated in the Bible to the end that Jamaica will have a healthy society;

• b. advocating the daily practice of upholding truth, family, sanctity of marriage, respect for life, justice and social equality and love for all mankind.

6 In pursuance of its objectives it has been organizing a number of conferences exploring the bases for the retention of the buggery law, conducting islandwide presentations and giving interviews declaring its opposition to the aims and purposes of this claim as well as publishing articles and advertisements in the print media in respect of the consequences for Jamaica should the claimant's action be successful.

(1) Sufficient Interest:

7 The JCHS sought to be added as an ‘interested party’ pursuant to Rules 56.13(1)–(2)(c), and 56.15(1) and (2) of the Civil Procedure Rules 2002 (as amended) (‘CPR’). These rules read as follows:

‘ 56.13 (1) At the first hearing the judge must give any directions that may be required to ensure the expeditious and just trial of the claim and the provisions of Parts 25 to 27 of these rules apply .’

(2) In particular the judge may—

…

(c) allow any person or body appearing to have sufficient interest in a subject matter of the claim to be heard whether or not served with the claim form .

56.15 (1) At the hearing of the application the court may allow any person who or body which appears to have a sufficient interest in the subject matter of the claim to make submissions whether or not served with the claim form.

(2) Such a person or body must make submissions y way of a written brief unless the court orders otherwise. ’

8 Mr. Braham Q.C. relied on the case of Michael Levy v The Attorney General of Jamaica and Jamaican Redevelopment Foundation Inc [2012] JMCA Civ 47 to establish that the court has wide powers in managing administrative claims in preparation for the final hearing and in exercising these powers may make such orders as are necessary for the purpose of managing the case and furthering the overriding objective. The court therefore has the discretion to:

‘ (a) Allow the intervention of interested parties to an action in which they have sufficient interest in the subject matter of the claim; and

(b) Determine the extent of that interested party's participation. ’

9 Learned Queen's Counsel submitted that since there is no expressed definition of ‘sufficient interest’ in Rules 56. 13 or 56. 15 of the CPR, some guidance can be taken from Rule 56.2 of the CPR which deals with ‘sufficient interest’ in the context of an application for judicial review. This includes:

‘ (a) any person who has been adversely affected by the decision which is the subject of the application;

(b) any body or group acting at the request of a person or persons who would be entitled to apply under paragraph;

(c) any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;

(d) any statutory body where the subject matter falls within its statutory remit;

(e) any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application; or

(f) any other person or body who has a right to be heard under the terms of any relevant enactment or the Constitution. ’

10 Counsel also relied on the case of R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd. (No. 2) [1994] 4 All ER 329, in which the Court adopted the approach taken in R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 2 All ER 257 at 265, [1986] 1 WLR 763 at 773 as to determining sufficient interest as follows:

‘ The first stage test, which is applied on the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. ’

11 In ex parte Greenpeace Ltd the Applicant was seeking to challenge an authorisation to discharge liquid and gaseous radioactive waste from the premises of...