The offence of obstructing a police officer in the execution of his duty is a general intent offence.  The Crown must prove the actus reus which involves:  (i) conduct that constitutes an obstruction (ii) to a peace officer (iii) who was engaged in the execution of his duty at the time.  The mens rea element requires the Crown to prove the obstruction was done wilfully.  In other words, the conduct proscribed is conduct that was intended to obstruct the individual officer in question in the execution of his duty at the time: R v Moore [1979] 1 S.C.R. 195

Understandably, the print media have been consumed in recent days with the ongoing campaigns of the many parties and candidates in the elections scheduled for this Thursday. But I have already mused on this in my two most recent columns and consider it far more prudent this week to focus on another matter of perhaps only slightly less significant concern to the rights of the citizen.

Many would have “steupsed” instinctively when Magistrate, the reverend Graveney Bannister, suggested recently that those who filmed policeman in the execution of their duty should be prosecuted. After all, some might have reasoned, would this not be at least a disproportionate response to a purported exercise of the guaranteed freedom of expression that includes, according to section 20 of the Constitution, “the freedom to communicate ideas and information without interference”?

And while it is recognized that this freedom may be derogated from in the public interests of defence, safety, order, morality or health, it is also stipulated that any such restriction should be reasonably required. This entails that there must be a legitimate aim for the measure, the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect), the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it, and the measure must be reasonable, considering the competing interests of different groups at hand. I am not at all certain that a law as suggested by Mr. Bannister will easily pass these tests.

Some counter-reaction to the magisterial suggestion came subsequently with an offer of BDS$1000 and free legal representation from a local attorney to anyone that may prosecuted for such an offence. However, it was the midweek statement from the Commissioner of Police on the issue that is likely to arouse the greatest civic interest on this issue so far.

As the Commissioner rightly noted, there is no crime committed to record an incident involving the police, although to be fair to Bannister, I do not get the impression that he was contending the contrary but rather suggesting that it ought to be an offence. The Commissioner, however, went on to warn, again quite rightly, “But if in so doing, an act resulting in [willful] obstruction of the officer in the execution of his duties occurs, this will result in an offence…”

I do not know if the Commissioner is aware, but the connection between obstructing an officer in the execution of his or her duty and the photographing or video-recording of an incident involving the police is one of the more intriguing global legal issues today, owed substantially to the notoriety of the police treatment of blackish individuals in the US. Moreover, the Commissioner’s words might have, perhaps inadvertently, lent some authority to the earlier suggestion by the learned Magistrate.

Locally, the offence of obstruction is covered by section 62 of the Police Act, Cap 167, which provides for a penalty of $1000 or imprisonment for a period of 12 months on summary conviction, although it also empowers the magistrate, if he or she is of the opinion that the matter is fit for prosecution on indictment, to commit the offender to stand trial in the High Court.

That much is clear, but the jurisprudence, whether from the US or the Europe, does not afford similar certainty. This is, in my view, a consequence of a number of factors surrounding obstruction by this method, including the citizen’s right to freedom of expression; the need for the police to be able to conduct unhindered investigations of crime and arrests of offenders; and the doubtful legitimacy of an expectation of privacy in public spaces. As for the first, while there are some decisions that have stressed the overarching importance of the freedom of expression to the democratic ideal, there are others that have subordinated it to the prevention of crime.

Thus, one judge in Austin, Texas, was of the view that the individual’s right to record incidents that occurred in public was well established- “If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information, the ability to make photographic or video recording of that information is simply not a new right or a revolutionary expansion of a historical right. Instead, the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.”

And the majority of the Third Circuit Court of Appeals was of like mind in Fields v City of Philadelphia-

“We ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Hugh Tomlinson QC, writing in the Guardian, in an article entitled “Do we have a fundamental right to film the police in public?” refers to the Metropolitan Police’s statement that “Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel” and recites the words of the US First Circuit Court of Appeals to the following effect- “A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic vital and well-established liberty safeguarded by the First Amendment.”

The position in Europe is apparently less accommodating to the citizen. In Pentikäinen v Finland (2015), the European Court of Human Rights (ECHR) merely stated in general terms that the presence of “watchdogs” during the policing of a demonstration is a guarantee that the authorities can be held to account. This has seemingly allowed the jurisdictions to vary in their national approaches. In Spain, the Citizen Security Law 2015 threatens a hefty fine for the unauthorized publication and dissemination of images of the police and in Belgium one video-blogger was fined £300 for filming and uploading two police officers’ response to an incident at a café, which in the court’s view, violated their privacy. Likewise, the lower House of the Dutch parliament recently adopted a motion calling for a change in the law that would result in the prohibition of the publication of recognizable images of police officers.

Whatever will be the response of the local courts to a charge of obstruction of the police by recording the incident of an arrest or other action, given the perceived credibility gap between the word of the officer and that of the citizen, it would be wise for citizens to err on the side of caution. Obstruction of an officer in the execution of his duty is a mixed question of law and fact and while there may be no obstruction if the officer is not in lawful execution of his duty, his sworn assertion that he was in fact being obstructed in his duty is likely to be treated as cogent evidence that he was.