‘All Lives Splatter’ officer could have been prosecuted, Court of Appeal rules
The Supreme Court was wrong to throw out a criminal case against a former police officer accused of posting a “grossly offensive” cartoon days before a Black Lives Matter march, according to the Court of Appeal.
Barbi Bishop was alleged to have 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”.
While Chief Justice Narinder Hargun threw out the criminal case against Ms Bishop over constitutional concerns last year, the Court of Appeal said he wrongly found that police disciplinary proceedings had made the criminal proceedings unnecessary.
Court of Appeal Judge Sir Maurice Kay said: “At the time of the hearing in the Supreme Court, no one could predict the future outcome of the disciplinary proceedings or whether the respondent would choose to remain a member of the Bermuda Police Service long enough for any likely sanction to take effect.
“It is common for employees to ‘jump before they are pushed’ in such circumstances.
“In a sense, that is what has eventuated in this case. Having prevailed in the Supreme Court, the respondent, an American citizen, relocated to Florida and took no part in the hearing of this appeal.”
Sir Maurice added that it was important to consider the full context of the case and, while the post was removed, its content and timing were “both offensive and inflammatory”.
“The content, especially the ‘all lives splatter’ meme and its history, would inevitably be grossly offensive to those who were intent upon participating in a peaceful march four days later,” he wrote.
“Although, and partly because, the time frame was short, it was calculated to have a significant impact. Otherwise, one might reasonably ask, why post it?”
Ms Bishop was charged under the Electronic Communications Act with posting a “grossly offensive message” on social media on June 3, 2020 – four days before a Black Lives Matter march was due to take place in Hamilton.
She denied the charge and the case was due to go before a Supreme Court jury.
However Ms Bishop launched civil proceedings against the Crown, claiming that the charge breached her constitutional rights to freedom of conscience and expression.
Last August, Mr Justice Hargun ruled in Ms Bishop’s favour.
He said that while the social media post was “capable of being considered grossly offensive”, but Ms Bishop’s fundamental right to freedom of expression was breached by the criminal case against her given she also faced disciplinary proceedings for gross misconduct.
Ms Bishop – who was suspended days after the post – subsequently quit the Bermuda Police Service and left the island.
The Crown launched an appeal against the decision, arguing that Mr Justice Hargun had been misinformed about prosecution guidelines and had placed too great an emphasis on the police disciplinary proceedings.
However, the Crown said it would not seek to pursue the case against Ms Bishop as it was unlikely she would return to Bermuda.
In his decision, dated June 17, Sir Maurice found that the judge had been swayed by outdated UK prosecution guidelines.
The updated guidance, written in 2018, said that when an offence was motivated by discrimination, it was more likely that a prosecution would be required.
He wrote: “It is clear to me that the current UK guidance, far from supporting the respondent’s case, militates against it.
“It is unfortunate that the Chief Justice was presented with an out-of-date document. I suspect that it played a part in leading him to an erroneous conclusion.”
The judge added that while Mr Justice Hargun had said the lack of previous offences suggested that the post was not a part of a “campaign to change any views”, the context of the post had to be considered.
“The offensive meme was posted on 3 June, four days before the BLM Bermuda protest was to take place,” Sir Maurice wrote. “The words ‘keep your a** out of the road’ were likely to discourage participation in the march.
“To that extent, at least, they would inevitably be read as an attempt to change minds about participation in the march.”
Sir Maurice also said that the way the cartoon was written – using the term “your protest” – indicated that it was intended to be seen by people who wanted to take part in the upcoming march.
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