Bishop v R

• Jurisdiction: Bermuda
• Judgment Date: 27 August 2021
• Docket Number: Civil Jurisdiction 2021 No 55
• Court: Supreme Court (Bermuda)

[2021] Bda LR 80

In The Supreme Court of Bermuda

Civil Jurisdiction 2021 No 55

In the matter of sections 8, 9 and 15(1) of the Bermuda Constitution Order 1968

And in the matter of Articles 9 and 10 of section 1 of the European Convention on Human Rights

Between:

Barbi Bishop

Applicant

and

The Queen

Respondent

Ms V Greening for the Applicant

Ms S Dill-Francois for the Respondent

The following cases were referred to in the judgment:

Brewster v Premier of Bermuda [2021] Bda LR 66

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69

Police Constable GA v Director of Public Prosecutions [2021] Bda LR 1

Director of Public Prosecutions v Collins [2006] UKHL 40

R v Keegstra [1990] 3 SCR 697

Chambers v Director of Public Prosecutions [2012] EWHC 2157

Kimathi v Attorney General for Bermuda [2017] Bda LR 40

Worme v Commissioner of Police [2004] UKPC 8

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

Percy v Director of Public Prosecutions [2001] EWHC 1125

Scottow v Crown Prosecution Service [2020] EWHC 3421

Karsten v Wood Green Crown Court [2014] EWHC 2900

Lehideux and Isorni v France [1998] ECHR 90

Friedman v Minister of Labour, Home Affairs & Public Safety [2004] Bda LR 51

Whether social media post constitutes breach of section 68(1)(a) of the Electronic Communications Act — Whether commencement of proceedings is in breach of right of freedom of expression — Grounds of public order — whether criminal proceedings are proportionate to the legitimate aim being pursued

JUDGMENT of Hargun CJ

Introduction

1. In these constitutional proceedings commenced by Ms Barbi Bishop, (the “Applicant”) under section 15 of the Bermuda Constitution Order 1968 (the “Constitution”) the Court is asked to consider the extent to which actions which may constitute an offence under section 68(1)(a) of the Electronic Communications Act 2011 (the “Act”) may nevertheless be protected under sections 8 and 9 of the Constitution.

Background

2. The background to this matter is set out in the affidavit of Police Inspector Paul Simons dated 12 April 2021. In that affidavit Inspector Simons states that on the 25 May 2020, Mr George Floyd, an African-American male, died in Minneapolis, Minnesota from being handcuffed and being pinned to the ground by police officers. The arrest, which was captured on video, caused outrage and sparked tensions both in the United States and internationally.

3. Mr Floyd's death became part of the “BLACK LIVES MATTER” campaign which is dedicated to fighting racism and violence against the black community, especially in the form of police brutality

4. To support the Black Lives Matter movement, a protest was organised here in Bermuda by a group of local supporters. The march was highly publicised and was to take place on 7 June 2020.

5. On 3 June 2020, it was reported to the Professional Standards Department (the “PSD”) of the Bermuda Police Service (the “BPS”) that the Applicant, a serving police officer, posted what was considered to be an inflammatory and racist meme on her Facebook and Instagram pages. The meme depicted a black background with a cartoon image of a white Jeep running over white stick people, accompanied with red wording “ALL LIVES SPLATTER. NOBODY CARES ABOUT YOUR PROTEST. KEEP YOUR ASS OUT OF THE ROAD”.

6. Inspector Simons states that at the material time, he was aware that the “All Lives Splatter” meme had been in circulation since 2017. It represents the death of Ms Heather Heyer, who was killed in Charlottesville, Virginia on 12 August 2017, by Mr James Alex Fields Jr. Mr Fields was an alleged neo-Nazi and white supremacist, who drove a Dodge Challenger into a crowd of counter-protesters at a white nationalist rally. Approximately 19 other individuals were also seriously injured, as a result of the collision. The report of this incident appears in the New York Times of 12 August 2017 and records that:

“The city of Charlottesville was engulfed by violence on Saturday as white nationalists and counter-protesters clashed in one of the bloodiest fights to date over the removal of Confederate monuments across the South.

White nationalists had long planned a demonstration over the city's decision to remove a statute of Robert E. Lee. But the rally quickly exploded into racial taunting, shoving and outright brawling, prompting the governor to declare a state of emergency and the National Guard to join the police in clearing the area.

These skirmishes mostly resulted in cuts and bruises. But after the rally at a city park was dispersed, a car bearing Ohio license plates plowed into a crowd near the city's downtown mall, killing a 32-year-old woman. Some 34 others were injured, at least 19 in the car crash, according to a spokesman for the University of Virginia Medical Center.

…

Witnesses to the crash said a gray sports car accelerated into a crowd of counter demonstrators—who were marching jubilantly near the mall after the nationalists had left—and hurled at least two people in the air.

…

The planned rally was promoted as “Unite the Right” and both its organizers and critics said that they expected it to be one of the largest gatherings of white nationalists in recent times, attracting groups like the Ku Klux Klan and neo-Nazis and movement leaders like David Duke and Richard Spencer.

Many of these groups have felt emboldened since the election of Donald J. Trump as president. Mr Duke, a former Imperial wizard of the Ku Klux Klan, told reporters on Saturday that the protesters were “going to fulfill the promise of Donald Trump” to “take our country back”.”

7. Inspector Simons states that the post resulted in local social media backlash. On 7 June 2020, local outrage was further manifested during Bermuda's Black Lives Matter march, where protesters loudly chanted for the Applicant to be dismissed by the BPS. Additionally, on the same date, the local activist organisation, Social Justice Bermuda, posted an open letter on their Facebook page, which was accompanied with a partial picture of the Applicant, and the “ALL LIVES SPLATTER” meme:

“A Bermuda Police Service officer, Barbi Bishop (Harris) posted this inflammatory meme in reaction to the protest in Bermuda in solidarity with the Black Lives Matter Movement in the US…

Barbi Bishop (Harris)' post is not only violently racist, it is abhorrent from someone sworn to protect the community. We call on the Bermuda Police Service to terminate her immediately. Suspension is not enough, this image was posted days ago.

Black people living in Bermuda cannot afford to have their freedoms and rights jeopardized by people like her that have no commitment to integrity while enforcing the law of the land. The overt racism calls into question every case she has ever been involved in.

This is why the Black Lives Matter movement exists. This is why we march. We call on the Bermuda Police Service to terminate Barbi Bishop (Harris) immediately, review her past cases, and implement implicit bias training for all officers.”

8. The reference to “suspension” in the open letter from Social Justice Bermuda, refers to the present disciplinary proceedings pending against the Applicant arising out of this incident. It appears from the Record of Interview attended by the Applicant with Inspector Simons and the Summary of Evidence that by that date the Applicant had been suspended from duty by the BPS pending an investigation into the alleged gross misconduct arising from these allegations.

9. On 3 June 2020 a report was made to the PSD of the BPS that the Applicant, as a serving police officer, posted an inflammatory and possibly racist meme on both her Facebook and Instagram social media pages. It appears that on 5 June 2020 Superintendent Murray of PSD served the Applicant with Notice of Alleged Breach of the Standards of Professional Behaviour, pursuant to section 14 of the Police Conduct Orders 2016. An Amended Notice was served upon the Applicant on 17 July 2020 by Inspector Taylor. On 21 July 2020 a Re-Amended Notice was served upon the Applicant by Inspector Simons alleging that the Applicant may have committed criminal offences relating to the Telecommunications Act 1986 and the Electronic Communications Act 2011. It appears that the disciplinary proceedings served upon the Applicant as long ago as 5 June 2020, alleging gross misconduct, are still pending, and the Applicant remains suspended from duty.

10. The Court was told by Miss Greening, counsel for the Applicant, that the objectionable post could only be seen by the Applicant's “Friends” on Facebook and Instagram and that the Applicant immediately removed the post following the outcry outlined above. Even though the post had been removed, it appears that on 13 August 2020, a charge was approved by the Director of Public Prosecutions (the “DPP”) for an offence contrary to section 68(1)(a) of the Act. The Applicant was later charged with the offence on 21 October 2021. On 13 November 2020, the Applicant appeared before the Magistrates' Court and pleaded not guilty to the offence. The Applicant elected to be tried summarily. On 21 January 2021, the Applicant filed this constitutional application seeking to strike out the criminal proceedings against her.

The Constitutional provisions

11. The Applicant relies upon section 8 (Protection of freedom of conscience) and section 9 (Protection of freedom of expression) of the Constitution. The relevant provisions provide that:

“Protection of freedom of conscience

8 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public or in private, to manifest and propagate his religion or...