Boden and Pereira v Governor of Bermuda and Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 19 August 2019
• Date: 19 August 2019
• Docket Number: Civil Jurisdiction 2019 Nos 83 & 84
• Court: Supreme Court (Bermuda)

[2019] Bda LR 62

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 Nos 83 & 84

In the matter of Order 53, rule 3(2)(B) of the Rules of the Supreme Court 1985

Between:

Joshua Boden

Plaintiff

and

Governor of Bermuda

Commissioner of Police

Defendants

In the matter of an application for judicial review and in the matter of the Police Conduct Orders 2016

Between:

PC 2360 Oswin Pereira

Plaintiff

and

Governor of Bermuda

Assistant Commissioner of Police

Defendants

Mr A Doughty for the Boden

Mr M Daniels for Pereira

Mr B Myrie for the Defendants

The following cases were referred to in the judgment:

Porter v Magill [2002] 2 AC 357

Director of Public Prosecutions v Clarke [2019] Bda LR 46

R v Chief Constable of Merseyside Police ex parte Bennion [2001] IRLR 442

In re S (A Barrister) [1981] QB 683

Meerabux v Attorney General of Belize [2005] UKPC 12

Morris v United Kingdom (Application no 38784/97)

Cooper v United Kingdom (2004) 39 EHRR 8

R v Boyd [2003] AC 734

Priess v General Dental Council [2001] 1 WLR 1926

Faye and Payne v Governor and Bermuda Dental Board [2006] Bda LR 65

Battiston v Grant [2016] Bda LR 62

Judicial review — Police conduct — Assault on suspect — Whether disciplinary proceedings violate the rules of natural justice — Excessive force — Gross misconduct — pparent bias

JUDGMENT of Hargun CJ

Introduction

1. These are judicial review proceedings commenced by Police Constable 2445 Joshua Boden (“PC Boden”), and Police Constable 2360 Oswin Perera (“PC Pereira”) (collectively referred to as the “Applicants”). The Applicants face internal disciplinary charges arising under the Police (Conduct) Orders 2016 (the “Orders”), arising out of an alleged assault on a suspect which purportedly took place during the course of an arrest. By these proceedings the Applicants complain of the decision of the Governor, the First Respondent, to refuse to withdraw the Orders and the decision of the Commissioner of Police (the “Commissioner”), the Second Respondent, to refuse to withdraw the charges against the Applicants. The Applicants contended that the scheme of the Orders is such that they will not afford them a fair hearing before an impartial tribunal, and in so doing, violates their common law rights.

2. In these proceedings the Applicants seek the following relief:

• i. A declaration that the current structure of the prosecution and adjudication of disciplinary offences as prescribed by the Orders violates the rules of natural justice;

• ii. An order of Mandamus compelling the First Respondent to withdraw the Orders; and

• iii. An order of Certiorari quashing the decision of the Second Respondent to proceed with an internal disciplinary prosecution of the Respondents.

3. The Applicants' case, as set out in the written submissions and as argued at the hearing, raise two principal issues:

• i. Whether Order 24(5)(c) is in breach of the rules of natural justice by requiring that one of the members of the disciplinary tribunal (the “Tribunal”) be a police officer who is selected by the prosecuting authority, and remains under the direct command of the prosecuting authority for the duration of the proceedings; and

• ii. Whether the alleged breaches of the rules of natural justice identified by the Applicants are in fact rectified through the appeal process as prescribed by Order 38.

4. The Applicants also raise the issue whether the Orders are in breach of the rules of natural justice on account of their failure to empower the Tribunal to prohibit abuse of process; and whether Order 24(5)(c) is unreasonable in the Wednesbury sense by requiring that one of the Tribunal members be a police officer, and who remains under the command of the prosecution authority during the proceedings. However, these additional grounds do not appear to add anything of substance to the principal legal issue identified in paragraph 2(i) above, the determination of which would appear to be decisive either way.

5. In passing it should be noted that the Applicants do not expressly rely upon section 6(8) of the Bermuda Constitution 1968 given that section 16(2) excludes the jurisdiction of section 6(8) from the “disciplinary law” which regulates the Bermuda Police Service.

Factual background

6. The controversy between the parties is largely based upon purely legal contentions and the actual incident giving rise to these proceedings is largely irrelevant. However, briefly, the background facts are as follows. According to PC Boden, on 13 May 2017, PC Pereira was involved in a high-speed pursuit of a suspect, later determined to be a Mr Tulundae Grant who was riding a motorcycle. PC Boden responded to PC Pereira's request for assistance. PC Boden observed PC Pereira enter a heavily wooded area, on foot, by Eastdale Lane in Southampton Parish. PC Boden also entered that wooded area and eventually saw PC Pereira attempting to subdue the suspect by means of a TASER stun gun. PC Boden moved to assist PC Pereira and attempted to place handcuffs on the suspect, who offered resistance as PC Boden attempted to subdue him. While attempting to place the handcuffs on the suspect, PC Boden observed a swinging motion in his peripheral vision and later observed that PC Pereira was holding a police issued ASP baton.

7. On 26 October 2017, the applicants were notified that they were being investigated in relation to this incident with the possibility of being charged pursuant to the Orders. On 31 October 2017, the Applicants were served with a fully particularised notice of the potential charges for which they were being investigated. In the notices, it was alleged that PC Pereira used excessive force during the arrest of the suspect and further alleged that PC Boden had failed to conduct himself with honesty and integrity, had abused his powers and failed to report PC Pereira's alleged misconduct to his superiors. On 7 September 2018, the Applicants were served with notices that the investigation of the disciplinary offences, which there were alleged to have committed, would continue. On 27 December 2018, they were served with notices that they would be prosecuted for Gross Misconduct before a Tribunal.

The Legal Framework

8. The principal legal issue as argued at the hearing is whether the constitution of the Tribunal established under Order 24(5) is legally objectionable on the ground of appearance of bias on the part of one of its members. The objection is based upon the statutory provisions relating to the investigation of complaints and any resulting prosecution. The relevant statutory provisions are as follows:

9. Order 5(1) provides that these Orders apply where an allegation comes to the attention of an appropriate authority which indicates that the conduct of a police officer may amount to misconduct or gross misconduct. Appropriate authority means, other than where the police officer is a Commissioner or Deputy Commissioner, the Commissioner.

10. Order 11(3)(a) provides that where the appropriate authority assesses that the conduct, if proved, would amount to misconduct, it must determine whether or not it is necessary for the matter to be investigated. Where the appropriate authority determines that the conduct, if proved, would amount to gross misconduct, the matter must be investigated (Order 11(4)).

11. Where the matter is to be investigated, the appropriate authority must appoint a person to investigate that matter (Order 12(2)).

12. Order 12(3) provides that a person must not be appointed to investigate the matter (a) unless he has an appropriate level of knowledge, skill and experience to plan and manage the investigation; (b) if he is an interested party; or (c) if he works, directly or indirectly, under the management of the police officer concerned. Interested party is defined as a person whose appointment could reasonably give rise to a concern as to whether he could act impartially under the Orders.

13. Order 13 provides that the purpose of the investigation is to (a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct; and (b) assist the appropriate authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

14. Order 18(1) provides that on receipt of the investigator's written report the appropriate authority must, as soon as practicable, determine whether the police officer concerned has a case to answer respect of gross misconduct or whether there is no case to answer.

15. Order 24(4) provides that where the case is referred to a misconduct hearing, the misconduct proceedings must be conducted by the panel of persons appointed by the appropriate authority. Those persons are (a) a chair who has qualified as a barrister; (b) a lay person; and (c) a police officer of a higher rank than the police officer concerned selected by the appropriate authority who is not an interested party (Order 2(5)).

The core legal argument

16. The core legal argument, as set out in the Applicants written submissions, is that a reasonable observer, fully informed of the relevant facts would have concern of bias based on the fact that a serving member of the Tribunal is appointed by the prosecuting authority and will be under the direct command of the prosecuting authority while acting as a judge during the course of the proceeding. It is said that if the third member of the Tribunal must be under the command of the prosecuting authority, it follows that the third member will, by definition, always be an “interested party” and will always be prohibited from serving on the tribunal ab initio. The Applicants argue that this means that the constitution of the Tribunal, as prescribed by the Orders, is unworkable on the face of the Orders in that the Tribunal cannot hear any case that is brought before it.

17. In his oral submissions Mr Doughty made it clear that the...