Commissioner of Police v Public Service Commission; Pereira (Interested Party)

• Jurisdiction: Bermuda
• Judgment Date: 15 February 2021
• Docket Number: Civil Jurisdiction 2020 Nos 402 & 390
• Year: 2021
• Court: Supreme Court (Bermuda)

[2021] Bda LR 11

In The Supreme Court of Bermuda

Civil Jurisdiction 2020 Nos 402 & 390

Between:

Commissioner of Police

Applicant

and

Public Service Commission

Respondent

Oswin Pereira

Interested Party

Mr K Taylor for the Applicant

Mr R Horseman for the Respondent

Ms V Greening for the Interested Party

The following cases were referred to in the judgment:

Police Constable GA v DPP [2021] Bda LR 1

R (on the application of the Chief Constable of Dorset) v Police Appeals Tribunal v Salter [2011] EWHC 3366

R v Police Appeals Tribunal ex parte Chief Constable of Avon and Somerset [2004] EWHC 220

Bolton v Law Society [1994] 1 WLR 512

Salsbury v Law Society [2009] 1 WLR 1286

Salter v Chief Constable of Dorset [2012] EWCA Civ 1047

R (on the application of Williams) v Police Appeals Tribunal of Police of the Metropolis [2016] EWHC 2708

Qamar v Bermuda Medical Council [2021] Bda LR 10

Application for judicial review — Decision of Public Service Commission not to dismiss police officer found guilty of gross misconduct — Guideline legal principles on sanctioning police officer — Operational dishonesty

JUDGMENT of Subair Williams J

Introduction:

1. The decision following the disciplinary proceedings before the Public Service Commission (intermittently abbreviated to its acronym “the PSC”) on the gross misconduct of Police Constable 2360 Oswin Pereira (“PC Pereira”) is the subject of this application for judicial review by the Commissioner of Police, Mr Stephen Corbishley (“the Police Commissioner”) (Case No. 402 of 2020). This Court is also presently concerned with the application of PC Pereira for judicial review of the Police Commissioner's decision to dismiss PC Pereira prior to the final determination of the decision of the PSC (Case No. 390 of 2020). By agreement between all parties, these applications were consolidated for the purpose of these proceedings.

2. On 5 February 2021 Counsel for the Police Commissioner, the PSC and PC Pereira appeared before me and made oral submissions on their respective applications. The Court also had before it the written submissions of each party and the affidavit evidence of the Police Commissioner and PC Pereira.

3. At the close of the hearing, I reserved judgment which I now provide with the reasons below.

Summary of the Background Facts and Disciplinary Proceedings:

4. On 13 May 2017 PC Pereira and PC 2445 Joshua Boden (“PC Boden”) were on duty on their police motorcycles and had cause to pursue an assailant, Mr Talundae Azariah Grant who attempted to flee riding a stolen motorcycle. Mr Grant was eventually apprehended by PCs Pereira and Boden who proceeded to effect his arrest and detention. During the course of that encounter, PC Pereira willfully and dishonestly turned off his body camera equipment (“body cam”). Mr Grant, now the Complainant for the purpose of the police disciplinary proceedings, made a complaint to the Police Complaints Authority, prior to his passing caused in an unrelated road traffic accident.

5. Allegations of gross misconduct against PC Pereira and PC Boden were initially referred to the Acting Deputy Commissioner of Police, Mr Antoine E. Daniels (“A/Dep. Com. Daniels”) for investigation. At the close of the investigation, A/Dep. Com. Daniels confirmed his opinion that there was a case to answer for gross misconduct in respect of both PC Pereira and PC Boden.

The Misconduct Hearing and Decision

6. The Police Commissioner thus referred the case for a misconduct hearing before a panel chaired by Mr Alan W Dunch, JP (a senior member of the Bermuda Bar Association). The other two members of the panel were Mr Douglas Soares and Acting Assistant Commissioner Mr Sean Field-Lament (“the Panel”). Citing from a summary provided in a statutory Notice dated 27 December 2018, the Panel described the following narrative as the salient portion of the facts against PC Pereira:

“The conduct that is the subject matter of the case and how it is alleged to amount to gross misconduct is as follows:

• (i) On or about 1200 hours on Saturday 13th May 2017 you were on duty in uniform riding a police motorcycle in pursuit of 17-year old Mr Grant who failed to stop for police. It is alleged that after subsequently pursuing him on foot into an area of dense vegetation, you used your political-issued Taser on two occasions to neutralize a perceived threat from Mr Grant. While Mr Grant was on the ground, Police Constable 2445 Joshua Boden attempted to control the movements of Mr Grant by placing hand-cuffs on his wrists. According to footage captured from your police-issued body camera, PC Boden continued to control the complainant by holding his arms behind his back while you used your left hand to hold the right side of Mr Grant's head against a large stone. The camera images then appear to show you use your right hand to strike Mr Grants [sic] head twice in rapid succession while gripping your police-issued ASP baton in your clenched right fist. Immediately prior to striking Mr Grant you are heard to say: “camera's [sic] off” before you are then shown to deactivate the body camera.

• (ii) You were subsequently prosecuted in Hamilton Magistrates Court for the offence of unlawfully wounding Mr Grant contrary to section 306(b) of the Criminal Code Act 1907, and at the conclusion of the trial on 20th July you were found not guilty of that charge.

• (iii) Having reviewed your audio/video interview, written statement and your testimony to Magistrate Archibald Warner your account of the incident appears to be wholly inconsistent with the body camera footage.

• (iv) Your account of the incident is that striking Mr Grant with your ASP baton was purely accidental. You stated that you ASP only extended because: “as I braced for my fall, the movement caused my police issued baton to extend forward. Mr Grant was in the direct trajectory of my fall and therefore I am aware and accept that my baton extended and struck Mr Grant in the area of his head and or face” (interview 23.11.17 page 5 lines 35–38).

• (v) You also stated that “I did not strike Mr Grant on multiple occasions again as he alleges” (interview 23.11.17 page 6 line 8). The body camera footage at 4:53 – 4:54 minutes shows you striking Mr Grant twice and it is only on the second blow that your ASP button extended. Your account appears to be at odds with the evidence and the force used against Mr Grant appears to be excessive.

• (vi) You also stated that “I then said to PC Boden 'Your camera is off as I wanted PC Boden to record the rest from a different vantage point” (interview 23.11.17 page 5 lines 24–26). However you own body camera footage shows you holding down Mr Grant with your left hand while you used your right hand to deactivate your camera while saying “camera's off”. Your actions in this regard occurred immediately before the assault on Mr Grant – in fact at 4:52 minutes- just one second before you delivered the first of two strikes.

• (vii) As a result of these allegations you may have fallen below the acceptable Standards of Professional Behaviour, which is expected of members of the Bermuda Police Service.

7. As part of the record of the misconduct hearing proceedings, the Panel received a witness statement from the Complainant Mr Grant. However, there was no opportunity for live evidence to be received from the Complainant prior to his fatal 2019 road traffic accident. The Panel therefore limited the admission of the Complainant's written evidence to contextual and background facts rather than for facts in dispute.

8. In defence of the allegations, the Panel received the records of the police interviews for both PC Pereira and PC Boden and their viva voce evidence.

9. The Panel's record also contained the witness statements of PC Brian James MacNab (expert witness on (i) safety training input on the use and deployment of the ASP baton and (ii) the body cam and its method of activation) and Police Sergeant Kenton Trott. Supplemental vive voce evidence was then given by Officers McNab and Trott.

10. The Panel also had, inter alia, evidence of the video footage taken from PC Pereira's body cam on the date in question. This footage was able to be viewed at a regular and slow speed pace and with the use of a frame-by-frame feature. In describing the footage the Panel stated in its written decision [paras 13–14]:

“13. … The footage shows a long motorcycle chase culminating in the arrest of Mr Talundae Grant by PC Pereira with the assistance of PC Boden. The video is approximately 4:56 in duration and at the heart of the matter is the last 5 seconds. The Panel viewed this portion of the video numerous times; at normal speed, half speed and frame by frame to form an opinion – based on all factors present – as to what probably occurred.

14. A synopsis of the Panel's interpretation of the events captured by the BWCV is as follows:

• (a) PC Pereira observes a motorcycle with two riders on South Shore Road – he notes the motorcycle has no key in the ignition and forms a suspicion that it may be removed/stolen (as suspicion which is later proved correct). A lengthy motorcycle chase ensues which commenced near Barnes Corner, Southampton and concluded near the junction of East Dale Lane and South Shore Road Southampton. PC Pereira as a matter of his operational “habit” turned on his BWC as soon as he commenced the pursuit. Nothing untoward occurred during the chase during which speeds in excess of 100kph were reached in the lawful pursuit of a noncompliant motorcycle- the Panel did observe and comment on the skill, courage and tenacity of PC Pereira's driving. Near Eastdale Lane the motorcycle driven by Mr Grant is “dropped” and both rider (Mr Grant) and passenger make off on foot. PC Pereira alights from his motorcycle and commences a foot chase after Mr Grant which resulted in both of them entering into [a] densely foliated area to the immediate south of that aforementioned...