Pereira v Commissioner of Police and Public Service Commission

• Jurisdiction: Bermuda
• Judge: Clarke P,Kay JA,Bell JA
• Judgment Date: 08 July 2021
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2021 No 5

[2021] Bda LR 59

In The Court of Appeal for Bermuda

Before: Clarke P; Kay JA; Bell JA

Civil Appeal 2021 No 5

Between:

Oswin Pereira

Appellant

and

Commissioner of Police

Public Service Commission

Respondents

Ms V Greening for the Appellant

Mr K Taylor for the 1st Respondent

The following cases were referred to in the judgment:

Police Constable GA v DPP [2021] Bda LR 1

Salter v Chief Constable of Dorset [2001] EWHC 3366

R (on the application of Williams) v Police Appeals Tribunal [2016] EWHC 2709

R (on the application of the Chief Constable of Cleveland Constabulary) v Police Appeals Tribunal [2017] EWHC 1286

Gross misconduct of police officer leading to termination without notice — Dishonesty — Judicial review — Statutory test of unreasonableness

JUDGMENT of Bell JA

Introduction

1. At all material times, the Appellant was a police constable serving in the Bermuda Police Service. On Saturday 13 May 2017, then PC 2360 Pereira (I will refer to him as such even though he is no longer a serving police officer) was on duty with PC 2445 Boden on their police motorcycles when they had cause to pursue Talundae Azariah Grant, who was riding a motorcycle with a pillion passenger. The pursuit started at Barnes Corner in Southampton, involved driving at high speeds, and concluded at the junction of East Dale Lane and South Shore Road in Southampton, where both Mr Grant and the pillion passenger abandoned the motorcycle and took off on foot. Mr Grant was chased and caught by PC Pereira, and PC Boden arrived a short time later. PC Pereira twice used his Taser with a view to subduing Mr Grant, and what happened during the struggle between them led to a complaint being made against both officers, which was heard by a panel appointed under the Police (Conduct) Orders 2016 (“the PCO”), comprising Alan Dunch as chair, Douglas Soares and Acting Assistant Commissioner Sean Field-Lament (“the Panel”).

2. It will no doubt be helpful at this point to detail the complaints made against PC Pereira, which were set out in the decision of the Panel, and are in the following terms:

• 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 police-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 Grant's 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: “cameras 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 2018, 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 your ASP only extended: “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 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 baton 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 your own body camera footage shows you holding down Mr Grant with you left hand while you used your right hand to deactivate your camera while saying “cameras 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.

3. The Panel gave its decision in January 2020, and made the following findings of fact as against PC Pereira:

• i. The Panel dismisses Pc Pereira's overall account as implausible.

• ii. The Panel's determination is that after a pursuit of Mr Grant, Pc Pereira lawfully deployed his TASER which eventually momentarily incapacitated Mr Grant, allowing Pc Boden to commence further restraint (handcuffing).

• iii. During the hand cuffing of Mr Grant, Pc Pereira wilfully and intentionally turned off his BWC and then unnecessarily struck Mr Grant twice in the head area using his ASP. The turning off of the BWC indicates a level of premeditation in regards to “covering up” (not recording) an unjustifiable assault on a prisoner being restrained.

• iv. This action constitutes gross misconduct.

4. Having found that PC Pereira's actions during the arrest of Grant amounted to gross misconduct, the Panel moved on to consider the appropriate disciplinary action and concluded that he should be dismissed without notice.

5. PC Pereira appealed the Panel's decision to the Public Service Commission (“the PSC”), as provided for by section 37 of the PCO, and the PSC rendered its decision on 17 August 2020. In it the PSC dealt with some 11 grounds of appeal. They dismissed grounds 1 through 5. They dealt with grounds 6,7,8 and 9 together, which grounds concerned the admission of the statement made by Mr Grant, who had died in an unrelated traffic accident by then, and the Panel's refusal to review Mr Grant's testimony in the Magistrates' Court proceedings. The PSC allowed that ground of complaint, saying that PC Pereira should not have been denied the opportunity to put Mr Grant's cross-examination into evidence, and that the Panel's refusal to admit it was unfair to PC Pereira. They refused ground 10, and in relation to ground 11, a contention that the Panel had acted unreasonably in finding that PC Pereira's action amounted to gross misconduct, the PSC found (paragraph 47) that the Panel's conclusion that PC Pereira unjustifiably assaulted Mr Grant by striking him twice in the head was unreasonable, and reversed that finding. In relation to the complaint that PC Pereira had turned off his body camera, and had given an implausible account of his actions in that regard, the PSC first found that it could not say that the Panel's finding that PC Pereira had wilfully turned off his body camera was unreasonable. In relation to the second finding by the Panel, that PC Pereira had given an implausible account of the material events, the PSC held that that they were unable to say that this finding was unreasonable. The PSC did not immediately say in terms that PC Pereira's turning off his camera amounted to gross misconduct, but did say that giving an inaccurate or implausible account of events in order to shield himself from criticism and potential misconduct charges was in the PSC's opinion gross misconduct. However, when considering the appropriate sanction, the PSC held that PC Pereira had been “clearly culpable” in denying that...