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Police officer’s bias claims over promotion failure dismissed by Appeal judges

No grounds: Detective Sergeant David Bhagwan’s appeal over promotion has been rejected (File photograph)

A ruling rejecting claims by a police officer that he had been the victim of discrimination has been upheld by the Court of Appeal.

Detective Sergeant David Bhagwan had called for a judicial review into Bermuda Police Service promotion procedures after failing to pass the Sergeant to Inspector interview panel in 2018.

Mr Bhagwan complained that the process had been flawed and that Assistant Commissioner of Police Martin Weekes should have recused himself on the basis of an appearance of bias against him and Caribbean police officers.

His claim was thrown out by Chief Justice Narinder Hargun after a Supreme Court case last year.

The Court of Appeal has now ruled that none of Mr Bhagwan’s grounds for appeal “has presented any basis for departing from the findings in the judgment in relation to the issues raised by them”.

In his appeal, Mr Bhagwan alleged that the methodology used to calculate scores for the promotions exam was “illegal and irrational”.

But the Appeal panel concluded: “The evidence was that it was a tried and proven assessment tool which had been used for a number of previous rounds of assessment for promotion, going back to 2012.”

During the initial hearing it was agreed that Mr Bhagwan’s final interview score of 55 per cent was an error and that it should have been amended to 56.68 per cent – still below the pass mark of 60 per cent.

In his appeal, Mr Bhagwan complained that Mr Justice Hargun was wrong to become involved in calculating the correct score.

This ground was also dismissed by the Appeal judges, who concluded: “This complaint, that the Chief Justice ‘entered into the arena’ for determining the appellant’s score, is baseless and must be rejected.

“There was no element of unfairness. The appellant pointed out an error which the court quite openly sought to resolve and when resolved showed that his overall score still fell short of the mark.

“Nothing involved in the conduct of the hearing can properly be said to have affected the outcome of his assessment.”

In a third ground for appeal, Mr Bhagwan claimed that one of the civilian assessors on the promotions panel, John Payne, was not qualified because he had failed to attend a training workshop.

In his written ruling, Justice of Appeal Anthony Smellie noted that, during the hearing, Mr Payne was cross examined by Mr Bhagwan’s attorney, Philip Perinchief, but was never questioned about the training session.

He added that the evidence to support the claim was “rather vague“ and had been strongly denied by Mr Weekes and Mr Payne.

Justice Smellie wrote: “This is an argument which we can also address with the brevity it deserves.

“In light of the evidence of both ACOP Weekes and Mr Payne himself to the contrary, the failure to press Mr Payne on this issue … is not surprising.”

Mr Bhagwan also appealed the ruling on the ground that a Bermuda Police Association observer was not present during the interview process.

The Appeal judges dismissed this argument as “not only baseless but also impermissible”.

Justice Smellie wrote, under promotion panel rules and regulations, there was “no obligation upon the chairman to ensure the participation of a BPA representative on the panel”.

Addressing Mr Bhagwan’s claim during the original hearing that Mr Weekes should have recused himself because of perceived bias, Justice Smellie noted that this issue was not raised during the original appeal.

Justice Smellie noted that, during the Supreme Court hearing, Mr Bhagwan’s allegations of personal bias against Mr Weekes dated to a 2007 incident which Mr Bhagwan had not flagged up until 11 years later.

It was also established that Mr Bhagwan had not objected to Mr Weekes’ membership of the promotions panel, even though he had an opportunity to do so.

Mr Justice Hargun had concluded that a fair-minded observer would rule out any “real possibility” of anti-Caribbean bias.

Justice Smellie wrote: “Any candidate, including the appellant, who had wished to object to any member of the panel had ample time to do so, if concerned about appearance of bias.

“The appellant had raised no such concern and as the judgment notes, appears to have simply reserved his position in this regard until he saw how the decision went.

“The conclusion in the judgment that the test was not met by the appellant’s allegations is, in our view, on the facts described, unimpeachable.”