Criminal charges against a police officer accused of publishing a “grossly offensive” cartoon online should have been allowed to continue, the Attorney-General’s Chambers argued yesterday in the Court of Appeal.

Chief Justice Narinder Hargun found last August that charges against Barbi Bishop should be dismissed because it impacted her freedom of expression and she had already faced disciplinary proceedings.

But Shakira Dill-Francois, counsel for the Attorney-General’s Chambers, said the judge gave too much weight to the disciplinary proceedings.

“A lot of people could argue they would be subject to disciplinary procedures for criminal matters that come before the court,” she said.

“It doesn’t mean that you can’t be charged with a criminal offence because you might receive discipline at your place of work.”

Ms Dill-Francois, however, said that Mr Justice Hargun did not put enough emphasis on the objective of the prosecution — to curb hate speech.

She further told the court that Mr Justice Hargun had been asked to consider outdated British prosecution guidelines when looking at the case.

Ms Dill-Francois said that the updated guidelines, handed down in August 2018, had increased the emphasis on the need to pursue cases that include elements of discrimination.

The court, however, heard that, even if the Chief Justice’s decision was overturned, the Department of Public Prosecutions would not seek to pursue charges against Ms Bishop.

Ms Dill-Francois explained that Ms Bishop, an American citizen, had left the island and was not likely to return.

“At this stage, it doesn’t really make sense,” Ms Dill-Francois said. “There’s no reason for her to come back.”

Ms Bishop made headlines when on June 3, 2020, while an officer with the Bermuda Police Service, she allegedly shared a cartoon of a person being hit by a vehicle which read: “All Lives Splatter. Nobody cares about your protest. Keep your a** out of the road”.

The post, published just four days before a Black Lives Matter march was scheduled to take place in Hamilton, sparked a public outcry and calls for Ms Bishop to be fired.

She was subsequently charged under the Electronic Communications Act with posting a “grossly offensive message” on social media, which she denied.

Ms Bishop took the case to the Supreme Court, where she argued that the charges infringed on her freedom of expression.

In August 2021 Mr Justice Hargun accepted that the post was capable of being considered “grossly offensive.

He found that it was “common knowledge” that the All Lives Splatter meme began circulating in 2017 after the death of a protester by an alleged white supremacist in Charlottesville, North Carolina and denied a suggestion that the post was a “crude road safety advertisement”.

But he added the post could only be seen by the officer’s Facebook and Instagram friends and Ms Bishop took the cartoon down “upon realising it was highly inflammatory”.

Mr Justice Hargun concluded that the criminal charge restricted Ms Bishop’s right to freedom of expression and that it could not be justified when she faced police disciplinary proceedings for gross misconduct.

Ms Bishop — who was suspended indefinitely from the BPS on June 5, 2020 over the post — subsequently resigned from the service.

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