WEDNESDAY, JUNE 20: A decision on whether the media can release more information on the leaked police investigation of the BHC has been delayed until Monday.

In the meantime, the three-man panel has continued the suspension of Chief Justice Richard Ground's refusal last Monday to suppress publication of any more of the files than have already been published.

On Monday the Court of Appeal will deliver its decision on a government appeal to ban publication until it can be tried in the Supreme Court

In the meantime, the three-man panel has continued the stay (suspension) of Chief Justice Richard Ground's refusal last Monday to suppress publication of any more of the files than have already been published.

Mr. Ground ruled that there should be no ban on publication pending a trial of the matter but allowed the government to appeal to the higher court because of the magnitude of the issues in the case, and extended a temporary injunction against public release.

Court of Appeal President Edward Zacca is hearing the case with Justices Gerald Nazareth and Sir Austin Ward.

Broadcaster ZBM News and newspaper The Mid-Ocean News in late May and early June reported excerpts from the police investigation of alleged wrongdoing at the quango from which housing officer Terrance St. Patrick Smith was convicted of 43 counts of false pretences and jailed for eight years.

The published material has named Premier Ewart Brown, former Premier Jennifer Smith - deposed by a party cabal including Dr. Brown right after the 2003 election - and former Housing Minister Nelson Bascome in the investigation of allegations of misconduct.

However, no one other than Mr. Smith was ever prosecuted but Mr. Bascome has since been indicted on separate theft and corruption charges.

Mr. Bascome and Dr. Brown yesterday filed writs in the Supreme Court against the four media companies in Bermuda, alleging defamation in the release of BHC material but failed in an attempt to stay the appeal pending the defamation trial.

The police have said that the original BHC files are missing and their only copy is abroad for forensic examination.

That information from the five-year-old enquiry is not under the gag, sought by the government for the Commissioner of Police and Attorney General.

Saul Froomkin QC, for the newspaper's parent company, argued this morning that the Commissioner had no legal standing to apply for an injunction, saying that any duty of confidence in regard to the BHC files was owed to the Crown and not the Commissioner.

Beyond that, he argued, the leaked files weren't "received in confidence", although he agreed that they are confidential in nature, and submitted that the Constitution doesn't protect from disclosure all information in police possession.

Only information legally recognised as of a high degree of confidence is covered, Mr. Froomkin said, such as communication between a doctor and patient or priest and confessor.

Reinforcing arguments he made before the Supreme Court, the barrister identified two rights that he said that his client - and the media at large - enjoys as being the right to disclose iniquity even in breach of confidence and the freedom of expression under the Constitution, especially when it's in the public interest.

He said the information in the BHC files was of public interest because official iniquity that it contains, which outweighs the right to confidentiality.

"The [legal] authorities," Mr. Froomkin said after reading copiously from cases on the subject from the English courts, "are becoming more liberal than in the past."

Justice Ward later in the hearing remarked to government lawyer Delroy Duncan during his reply to Mr. Froomkin that the DPP's reported decision not to proceed against public figures killed any prosecution but not the public interest.

"It only adds to it," he said. "If someone has a copy of the Criminal Code and knows of a provision that's relevant he could wonder how the DPP reached his conclusion."

Returning to an earlier point, Mr. Froomkin said that an injunction can't be granted in advance of a news article when it isn't known what it may contain - a reference to the absence in either court of the BHC investigation documents or copies.

Each side has said that the other should be required to produce them to prove their case.

Referring to the arrests this week and last of Auditor General Larry Dennis and two men thought to have links to the governing Progressive Labour Party, Mr. Froomkin said that there is public disquiet over the leaks and the investigation contents.

The lawyer continued that the DPP's advice to the police at the time not to interview the prominent figures named in the investigation because there were no reasonable grounds to believe they had engaged in wrongdoing was "with respect, absolute nonsense".

The court will deliver its judgement at 10 am on Monday.