Police officer wins appeal against dismissal
A police officer who was fired for using “excessive force” on a teenage suspect after a high-speed chase has won an appeal against the decision.
Police Constable Oswin Pereira was found by a disciplinary panel of the Bermuda Police Service to have struck Talundae Grant in the head with a baton on May 13, 2017.
He was dismissed without notice for gross misconduct in January, but has now had the decision overturned after a successful appeal to the Public Service Commission.
The commission said in a decision issued on Monday that there was no evidence to support the panel's finding that Pc Pereira unlawfully assaulted Mr Grant and there was “no physical harm found to be suffered by Mr Grant” at the hands of the officer.
The commission stated: “In carrying out his duties, [Pc Pereira] placed himself at great personal risk during the pursuit of Mr Grant, who was subsequently found to be in possession of a knife at the time, something that [Pc Pereira] had reasonable belief to be the case ... this was a real-life high-stress situation which training scenarios cannot fully prepare an officer for.”
The PSC said the officer previously had a clean service record of nearly a decade with the BPS and was considered an asset to the service.
The May 2017 incident took place in woods near Eastdale Lane in Southampton, after the constable pursued Mr Grant, who had been riding a motorcycle.
Another officer, Pc Joshua Boden, responded to a request for help from Pc Pereira and saw the latter trying to subdue the suspect with a Taser device.
According to facts outlined in a Supreme Court judgment last year, Pc Boden tried to put handcuffs on the suspect, who resisted.
The judgment said: “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 ... baton.”
Both officers were told in October 2017 they were being investigated: Pc Pereira for allegedly using excessive force and Pc Boden for allegedly failing to notify senior officers about his colleague's conduct.
Pc Pereira was acquitted of a criminal charge of unlawfully wounding Mr Grant after a Magistrates' Court trial in July 2018.
In January this year, the three-member BPS disciplinary panel cleared Pc Boden of wrongdoing.
But it found that Pc Pereira “unnecessarily struck” Mr Grant in the head with his baton and “wilfully and intentionally” turned his body camera off, indicating a premeditated cover-up of an unjustifiable assault.
The panel said the officer “breached honesty and integrity, demonstrating levels of premeditated behaviours that brought discredit on the Bermuda Police Service, which amounted to gross misconduct”.
Victoria Greening, lawyer for Pc Pereira, argued during the appeal to the PSC that the disciplinary panel was wrong not to review the evidence given by Mr Grant during her client's court trial.
The PSC agreed, stating that the refusal of the panel to admit and consider that evidence was “unfair”.
The commission said: “Given the [officer] was fighting for his professional life, the PSC is of the opinion that [he] should not have been denied the opportunity to put the cross-examination of Mr Grant into evidence if he so wanted.”
The commission said it was “telling that there was no evidence of a complaint made of an assault by Mr Grant on May 13, 2017” and that the “late complaint” seemed to have arisen after the teenager's lawyer obtained a copy of Pc Pereira's body camera video.
In the video, the officer can be heard saying “camera's off”.
Pc Pereira told the disciplinary panel he was not telling Pc Boden to turn his camera off but rather instructing him to turn his camera on and that he did not wilfully turn his own camera off.
The panel rejected that explanation and the PSC agreed.
The commission said the only harm caused was to the BPS's reputation and to public confidence in policing because of the “implausible account” given by Pc Pereira about the body camera.
“Giving an untruthful explanation in order to protect himself from criticism does undermine the reputation of the Bermuda Police Service,” the commission said.
As such, it replaced the dismissal without notice, which it said was unreasonable, with a final written warning.
Pc Pereira declined to comment for this article.
Ms Greening said: “I was encouraged that the PSC panel considered our submissions so carefully and wrote such a comprehensive and well-written judgment, which in my view reached the correct decision.”
A BPS spokeswoman said: “The Commissioner of Police has received the findings of the Public Service Commission.
“He is now seeking separate legal advice to consider the position of the BPS on this matter and as such no further comment will be made at this stage.”
Mr Grant died in an unrelated road crash last year, aged 19.
• To view the appeal decision, click on the PDF link under “Related Media”
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