Elkinson accused of conflict of interest
A lawyer who led an inquiry into the police’s use of pepper spray on protesters represented the Bermuda Police Service before the findings of the investigation were released.
Jeffrey Elkinson, the Police Complaints Authority chairman, appeared in Supreme Court on behalf of the BPS in relation to a separate matter on June 30 last year — before the PCA published its report on the controversial events of December 2, 2016.
The authority was investigating if police officers should have deployed pepper spray against activists who had gathered outside Parliament to protest against a government plan to redevelop the airport through a public-private partnership.
Mr Elkinson put his name to the report, released in August last year, which criticised police leadership and planning but rejected 26 complaints about the conduct of officers on the ground.
The report said “no blame” could be attached to officers who used the spray.
The objectors, represented by lawyer Delroy Duncan, have since asked for a judicial review of the PCA’s findings.
The PCA report does not mention that Mr Elkinson had been hired by the BPS to represent it in court on a separate matter.
It is understood that his limited role in that separate matter — responsibility for which soon passed to another lawyer in his firm — meant he did not feel it necessary to excuse himself from the pepper spray inquiry.
William Francis, deputy chairman of the PCA, said the authority’s inquiry into the use of pepper spray had probably ended by June 30, even though the report had yet to be made public.
“I don’t think in June we were still looking into this,” Mr Francis said. “I think we were well through with it by June. There was a pretty substantial gap between us completing the inquiry and the release of the report.”
He said he was unaware that Mr Elkinson had represented the BPS in another matter, but got no sense during the inquiry of any bias on the part of the lawyer in favour of the police.
“We were not really soft on the leadership of the police force,” Mr Francis added. “We were critical of the more senior police officers who oversaw [it all].”
Mr Elkinson told The Royal Gazette this month that he is not the lawyer for the BPS in the other case, which involves a mobile phone seized by detectives from the home of a lawyer who died.
The legal practice where the deceased lawyer worked, represented by Mr Duncan, brought a court case against the BPS to have the phone returned and a hearing was held on June 30 in front of Puisne Judge Stephen Hellman.
Mr Elkinson represented the police at that hearing, although Ben Adamson, a fellow director of his at the Conyers Dill & Pearman law firm, then took over the case.
A court ruling on the case quoted from an affidavit filed by the head of the BPS’s Organised and Economic Crime Department.
The detective chief inspector said the police “instructed Jeffrey Elkinson to negotiate with Delroy Duncan” on the best way to produce a copy of the phone’s hard-drive data.
The hard drive and phone were then left, by agreement, in Mr Elkinson’s possession.
The judge who made that ruling has since sealed the case file.
Mr Elkinson said: “I did assist both parties to the issue that arose concerning the items that needed to be held pending resolution of certain issues ... I was trusted by both sides to hold these items securely.”
He added: “I am not the attorney for the police and the matter is dealt with by another attorney.”
The case that involved the phone also led to a PCA inquiry, after a complaint from the deceased lawyer’s family that images from it had been leaked by police personnel.
The PCA has never made public the findings of its investigation into the leak complaint.
Mr Elkinson said he declared a conflict of interest in that case.
He added: “I have long ago informed the members of the PCA that I would be unable to participate in the matter due to conflict.”
He declined to comment on his brief representation of the BPS on June 30 last year, while he was tasked with leading an impartial inquiry into the police use of pepper spray at the Parliament protest.
But Conyers Dill & Pearman said in a statement: “Many of Conyers’ attorneys carry out public duties, such as serving on committees and public bodies. They do so voluntarily and as a public service.
“Our attorneys are specialists in their fields and are often called upon to act and advise. This can give rise to potential conflicts, but Conyers has procedures in place and the Bar Association has strict codes regulating conflicts of interest, to which all attorneys must adhere.”
The BPS said they had no comment on why they hired the PCA chairman to represent them in the mobile phone case.
Judith Chambers, co-administrator of the Civil Justice Advocacy Group, highlighted Mr Elkinson’s representation of the BPS in a post on Facebook in March.
Last week the CJAG called for Mr Elkinson’s resignation as chairman of both the PCA and the Bermuda Bar Association’s professional conduct committee because of conflicts of interest.
Mr Elkinson dismissed the criticism and said the group had made “mean-spirited allegations, without setting out any justification for them”.
The CJAG said in a statement: “So Mr Elkinson is counsel for the Bermuda Police Service at the same time that he is sitting in a key position of responsibility to investigate complaints from the public about the same Bermuda Police Service.
“Bermudians deserve more than this sham of an independent investigative body and must demand accountability, integrity and transparency from these positions of trust and privilege. We hope the Governor is taking note.”
The PCA is an independent body appointed by the Governor that is tasked with investigating serious complaints and allegations of misconduct against the police.
Mr Elkinson has been chairman since 2013. Alongside him and Mr Francis, the other members are Michelle Simmons, Major Barrett Dill, Andrew Bermingham and Winston Esdaille.