Magistrate blasts ‘useless’ Police Complaints Authority
A magistrate has described the Police Complaints Authority as a “useless body which lacks the public’s confidence” over the way it handled a complaint he made about two officers.
Khamisi Tokunbo first filed the grievance against Pc Colin Mill and Chief Inspector Robert Cardwell with the Bermuda Police Service in December 2020, alleging that they colluded to have him arrested and charged after a January 2019 car crash in Paget.
The BPS’s Professional Standards Department conducted an inquiry before referring the matter in August 2021 to the PCA, an independent body tasked with investigating allegations of misconduct by the police.
Mr Tokunbo told The Royal Gazette that more than two years later he had yet to hear anything back from the oversight body about the concerns he raised and the BPS never shared its findings with him.
He said: “The way the complaint has been handled confirms a general perception that the PCA is a useless body which lacks the public’s confidence.”
Since speaking to Mr Tokunbo, the Gazette has seen a copy of the final report written by the investigating officer in the Professional Standards Department, before the matter went to the PCA.
That report, which is not a public document and which Mr Tokunbo has not seen, cleared both officers of any wrongdoing.
It contrasted sharply, in relation to Pc Mill, with a decision made by Cayman Islands magistrate Valdis Foldats, who acquitted Mr Tokunbo of failing to provide a breath test and found that the constable was biased and detained him illegally on the night of the crash.
After learning of the outcome of the internal inquiry from the Gazette, Victoria Greening, Mr Tokunbo’s lawyer, said it was hard to understand how Pc Mill could “possibly have been acquitted when there is a ruling saying he acted unlawfully” and in light of the “strong comments” made by Mr Foldats about his bias and his evasive answers in court.
“Great efforts were made to bring an overseas magistrate to Bermuda to preside independently over the two-week trial, who handed down a powerful ruling which included that the arrest was unlawful,” she said.
The lawyer questioned why police had never notified her client of the August 2021 PSD decision, instead telling her to seek answers from the PCA, which has never replied to any correspondence.
“There has been zero communication from the PCA,” Ms Greening said.
“Of course, all complaints should be treated equally, but this one was supported by the judgment [of Mr Foldats] and made by a senior magistrate and criminal lawyer, and it was completely ignored.”
Mr Tokunbo filed his grievance against the two policemen after he was cleared of failing to provide a breath test by Mr Foldats in October 2019.
In his official complaint, he alleged that Pc Mill made an unlawful arrest and was biased and unprofessional towards him. He alleged that the officer colluded with a witness — taxi driver John Jefferis — to “tailor the evidence to justify the arrest”, as well as colluding with Mr Cardwell, a much more senior officer.
Mr Tokunbo further accused Pc Mill of being involved in the disappearance of his keys, which were left in his car at the crash scene, and later returned to him by Mr Jefferis, who put them outside his front door.
Neither officer was placed on restricted duties during the BPS’s internal inquiry into their conduct, which Ms Greening said was contrary to normal practice.
Detective Inspector Derek Berry, of the PSD, conducted the internal inquiry and wrote in his ten-page August 2021 final report that he did not interview either officer as they “supplied a full response” to the accusations.
He accepted Pc Mill’s submission that information he received at the scene from Mr Jefferis, who said he pulled another man from the passenger side of the car after the crash, gave him “reasonable and probable grounds to believe” Mr Tokunbo was the driver.
He also accepted Mr Cardwell’s submission that at “no time” on the evening of the crash did he speak to Pc Mill.
Mr Berry wrote: “I am of the opinion that there is no evidence to support any breach of standards of professional behaviour and code of ethics for either Constable Colin Mill or Chief Inspector Robert Cardwell.
“I therefore recommend that no action be taken against either officer regarding this matter.”
Allan Robinson, the man pulled from the vehicle by Mr Jefferis, pleaded guilty in Magistrates’ Court in May 2019 to refusing to give a sample of blood; he was fined $1,000 and banned from driving for 18 months.
In July last year, Mr Robinson was ordered by the Supreme Court to pay $35,000 in damages to Mr Tokunbo for failing to “exercise the expected standard of care” when driving the latter’s car on the night of the crash.
The judge who presided over Mr Tokunbo’s civil claim against Mr Robinson was Assistant Justice Jeffrey Elkinson, who is chairman of the Police Complaints Authority.
A civil case Mr Tokunbo brought against the Commissioner of Police and the Attorney-General in relation to his arrest was struck out by a judge in April this year
He is still pursuing a civil lawsuit against Pc Mill.
A BPS spokesman would not comment on Mr Tokunbo’s complaint against the two officers, adding that it “now rests with the Police Complaints Authority”. He advised the Gazette to submit any query to the authority.
The spokesman added: “The Bermuda Police Service refer matters to the PCA only in the event that an in-person report is made to the BPS and not directly to the PCA via their online portal, since all complaints from the public against police officers must be reported to the PCA.”
PCA deputy chairwoman Charlene Scott said in an email that Mr Elkinson had recused himself from the matter at the outset.
She said the authority was not able to respond to any outstanding or completed cases from the police’s professional standards department due to "administrative restrictions and, more importantly, until the PCA was properly constituted“, in reference to a period of months when the authority was waiting for the Governor to appoint new members.
Ms Scott said she did not know the exact number of outstanding complaints to the PCA and that the authority “cannot and does not comment on any case until it comes before us”.
She added: “We are now in a position to start clearing the backlog of completed PSD cases, Mr Tokunbo’s included.
“Once it is concluded by the PCA, he will be duly notified.”
Ms Scott said the magistrate’s complaint “was not forwarded to the PCA from PSD until sometime in 2022.
“At that time, the PSD found no basis for the complaint made against CI Cardwell and PC Mill.
“At that time, there was ongoing civil litigation in the Supreme Court in respect of this same case and the PCA could not express a view until the conclusion of that litigation …”
She said that since the litigation only ended in April this year “it has only been a mere six months and not two years, as has been alleged, that this matter was pending.
”Eventually, it, along with others, will be discussed and concluded by the PCA.“
This is not the first time a complainant has criticised the PCA’s lack of communication. The sister of the late MP Shawn Crockwell said in 2019 that the authority told her nothing about an inquiry into how his sudden death was leaked to the public before his family were told.
· NOTE: This story has been edited to include a comment from PCA deputy chairwoman Charlene Scott, sent on October 18, 2023, and information about civil litigation brought by Mr Tokunbo against the police and the Attorney-General, which ended in April this year.
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