Crown to appeal ruling that ‛All Lives Splatter’ police officer cannot be prosecuted
The Crown is to challenge a ruling by the Chief Justice that a policewoman who posted a “grossly offensive” online cartoon cannot be prosecuted.
A notice of appeal in the civil case of Pc Barbi Bishop v the Queen was filed by lawyers for the Attorney-General’s Chambers last week.
The notice claimed that Chief Justice Narinder Hargun made a mistake when he dismissed a criminal case against the police officer.
Ms Bishop was charged under the Electronic Communications Act after she posted the “All Lives Splatter” meme on Facebook and Instagram last June – four days before a Black Lives Matter march was scheduled to be held in Hamilton.
She denied the charge and launched a legal action against the Crown in March.
Ms Bishop claimed it breached her constitutional rights to freedom of conscience and expression.
Mr Justice Hargun upheld her complaint in August and ruled that, although the post was “capable of being considered grossly offensive”, it was a breach of the officer’s fundamental right to freedom of expression to bring a criminal case against her.
He added that Ms Bishop already faced a police disciplinary hearing, which could lead to the loss of her job and he was not satisfied that the criminal proceedings were needed.
The Bermuda Police Service said after the ruling that the “conduct process” against the officer could “now progress”.
The notice of appeal filed in the Court of Appeal last Friday asked for the Chief Justice’s ruling to be quashed and dismissal of Ms Bishop’s civil claim against the Crown.
It listed five grounds, including a claim that Mr Justice Hargun “misconstrued the principles of constitutional interpretation in deciding whether a measure is proportionate”.
The notice of appeal said the judge failed to mention an “overriding requirement” from which the “approach to proportionality derives – the need to balance the interests of society with those of individuals and groups”.
The lawyers for the Attorney-General’s Chambers said he should not have considered that Ms Bishop also faced disciplinary proceedings.
They added that Mr Justice Hargun placed too much weight on guidelines on prosecuting cases involving social-media posts and failed to recognise that the Director of Public Prosecutions was not bound by the guidelines to “follow any particular course in any individual case”.
The notice of appeal said: “As a further result, the Chief Justice mistakenly found that he had the jurisdiction to dismiss a criminal prosecution, when the criminal matter was not properly before that jurisdiction.”
The case is not expected to go before the Court of Appeal until spring next year.
The cartoon alleged to have been posted by Ms Bishop was of a stick figure being hit by a vehicle with the words: “All Lives Splatter. Nobody cares about your protest. Keep your a** out of the road.”
It caused outrage and Social Justice Bermuda group called for Ms Bishop to be fired.
Cindy Clarke, the Director of Public Prosecutions, confirmed yesterday that an appeal had been filed but said she was unable to comment further.
Ms Bishop and her lawyer, Victoria Greening, declined to comment.
A BPS spokesman said the appeal was a matter “solely” for the DPP to address.
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