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Police regulator ‘run on a shoestring’, says chairman

Jeffrey Elkinson, chairman of the Police Complaints Authority

The island’s only police oversight body is “run on a shoestring” and badly needs independent administrative help, according to its chairman.

Lawyer Jeffrey Elkinson, who has led the Police Complaints Authority since 2012, called on the Government to provide adequate funding for the regulator to enable it to improve its performance and keep complainants and the public better informed.

“I would be the first to agree that it’s not properly set up,” he told The Royal Gazette, when asked to comment on the lack of a PCA annual report for almost a decade and recent criticism about its efficacy.

Mr Elkinson, who also chairs the Bermuda Bar Association’s professional conduct committee, added: “I do so much other stuff where everything works — because there are systems and support.”

The chairman disputed statistics shared by the Ministry of National Security with The Royal Gazette, which listed the PCA as meeting only once last year and twice in 2021.

He said those figures, shared under public access to information, were “not accurate” and the authority normally met monthly but always on a regular basis.

Mr Elkinson said there were nine meetings in 2021 and seven in 2022. He added that he was disappointed the ministry did not contact him before releasing the statistics.

He broke his silence after criticism was levelled at the authority last month by a magistrate and a King’s Counsel, both of whom claimed it was an ineffective body that took too long to handle grievances and had lost the public’s confidence.

The chairman said it was “frustrating” because the Police Complaints Authority Act required the Minister of National Security to “provide such staff support and other services as the authority may require to perform its functions”.

He said: “I don’t get the administrative support that I need from the Government.”

Funding for the PCA comes from the national security ministry budget, and it was allocated $21,000 in the 2023-24 budget. In 2021-22, the actual spend was $8,000.

Its six members are appointed by the Governor and get $100 for each meeting they attend, apart from Mr Elkinson, who receives $200. He said: “It’s run on a shoestring.”

A civil servant provides some administrative help, but the chairman said that was very limited and, in any case, the administrator should be external to government because the authority was “supposed to be independent”.

He added that the civil servant did not attend PCA meetings owing to the confidential nature of complaints.

The lack of administrative support has meant “there is no one doing the filing. We don’t have an office any more. It’s a very difficult committee to be on because it’s all do-it-yourself”.

Mr Elkinson detailed several other difficulties in recent years, including the “enormous amount of work” required to investigate the raft of complaints the authority received after the December 2, 2016 parliamentary protest and the subsequent litigation against it by protesters.

He also said changes within the Bermuda Police Service’s professional standards department had added layers of bureaucracy, which had slowed things down, and some PCA members had had health challenges.

The pandemic had some impact, although the chairman said members met over Zoom, and there was a period of several months inactivity when there was not a full board, and the Governor, who is responsible for the PCA, had yet to make new appointments.

The authority is now up to full strength, with former Supreme Court Registrar Charlene Scott and former police officer Charles Mooney joining Major Barrett Dill, Winston Esdaille and Ernestine DeGraff.

Its last publicly available report, due annually, was for the period January 1, 2012 to September 1, 2014. As reported last month, national security minister Michael Weeks is due to table a report dated September 2022 in Parliament before the end of the year.

Mr Elkinson, a director at Conyers and an assistant justice, shared that report with the Gazette yesterday.

He said the board got behind on reports after 2014 and was then consumed by its parliamentary protest inquiry.

He explained all complaints made by members of the public to the PCA were initially investigated by the BPS’s own professional standards department.

“They send us the report and we confirm whether they have got it right,” he added. “Once in a blue moon, we reject what they say and we get them to do it again.”

Mr Elkinson said he usually dealt with correspondence himself, including sending closing letters to complainants, and accepted he was not always up to date.

In the case of magistrate Khamisi Tokunbo, who complained about the conduct of two officers after a 2019 arrest, Mr Elkinson said he recused himself entirely from the matter because he was conflicted, having been the assistant justice in a civil matter brought in relation to the same incident.

Ms Scott said: “The PCA could not respond to any professional standards department’s outstanding or completed cases due to administrative restrictions and more importantly, until the PCA was properly constituted.

“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.”

She said the magistrate’s complaint was forwarded by the police to the PCA in 2022, but nothing could be done until civil litigation brought by Mr Tokunbo against the Commissioner of Police and the Attorney-General concluded in April this year.

Ms Scott added: “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.”

Neither she nor Mr Elkinson could give the exact number of outstanding complaints, but the September 2022 report shows the number of grievances received in recent years:

2015: 20

2016: 31

2017: 26

2018: 43

2019: 36

2020: 57

2021: 19

Referring to the PCA’s difficulties, Mr Elkinson said he accepted the “responsibility and … blame” for “this mess” and regretted not pressing the minister harder for help.

However, he insisted: “We don’t exactly just let stuff go nowhere. It’s just maybe the closing letter hasn’t gone out. There is no one out there who has some serious complaint that hasn’t been considered.

“I don’t disagree about the importance of the PCA. The real key is the serious lack of administrative support.

“It’s just so wrong to say, ‘yes, we have this body’ and not give it the support it asks for.”

Rena Lalgie, the Governor, did not respond directly to questions, but a Government House spokesman told the Gazette by e-mail that she had received the September 2022 report.

He added: “The Governor has contact with the chair of the PCA on a regular basis and actively considers the membership of the PCA as appropriate. The PCA continues to meet and to deal with complaints as required.”

Mr Weeks did not respond to e-mailed questions, including about a 2017 Throne Speech promise from this government to table legislation “to give ordinary citizens greater confidence in the independence of the Police Complaints Authority” to enable “truly independent investigations in the case of complaints regarding police conduct”.

The Gazette has been promised a comment from the Bermuda Police Service.

‘Grave deficits’ in ‘cornerstone of democracy’

Concerns about the Police Complaint Authority’s lack of resources have been raised before.

In a report for 2008 to 2010, former chairwoman Michelle St Jane wrote: “The Police Complaints Authority is challenged with having very limited human and financial resources.

“There is a need for both a professional executive director and a part-time in-house investigator who are proficient, reliable and capable of meeting the demands of the PCA office, while upholding standards of accuracy.

”Unfortunately, throughout this period, there were grave deficits in this area that remain unresolved at the close of 2010.”

Dr St Jane said the lack of resources placed a “heavy burden on those who are essentially volunteers, choosing to serve within this cornerstone of democracy”.

Dr St Jane also accused BPS leadership of a “continual failure to utilise the discipline process” and said that had resulted in complaints made against one officer between 2007 and 2010 remaining “unprocessed due to the systemic failure to … effectively control the process and/or adjudicate these complaints brought forward by members of the public”.

The regulator, tasked with handling complaints of alleged misconduct, neglect of duty or negligent performance by police officers, was launched after Parliament passed the Police Complaints Authority Act 1998.

In 2017, the new Progressive Labour Party government pledged in its first Throne Speech to beef up the body “to give ordinary citizens greater confidence in the independence of the Police Complaints Authority” in the wake of the December 2, 2016 protest outside Parliament, when pepper spray was used on demonstrators. It has yet to introduce a Bill.

In 2021, PCA oversight was extended to members of the Royal Bermuda Regiment Coast Guard unit.

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