Cop accused of hitting teen
Two police officers accused of gross misconduct will go before a disciplinary tribunal that will include a senior colleague, the Supreme Court has ruled.
Both officers claimed in the Supreme Court earlier this year that the tribunal formed to review the allegations against them would be biased, if a fellow officer sat on the three-member panel.
They asked for an order to prevent the Commissioner of Police Stephen Corbishley from setting up the disciplinary hearing.
The tribunal was ordered after Police Constable Oswin Pereira was accused of the use of excessive force in the arrest of a teenager in 2017 and Police Constable Joshua Boden was accused of failure to tell superior officers about the incident.
Chief Justice Narinder Hargun refused the application from the two constables in a judgment delivered on August 19.
The complaints against the officers stemmed from an incident in 2017 when they were involved in the arrest of Talundae Grant, who died in an unrelated motorcycle crash earlier this year, aged 19.
The court heard that Mr Pereira was involved in a high-speed pursuit of Mr Grant's motorbike on May 13, 2017.
Mr Boden, who responded to a request for assistance, arrived at a wooded area off Eastdale Lane, Southampton and saw Mr Pereira enter the trees on foot.
The Chief Justice said: “PC Boden also entered that wooded area and eventually saw PC Pereira attempting to subdue the suspect by means of a Taser stun gun.
“PC Boden moved to assist PC Pereira and attempted to place handcuffs on the suspect, who offered resistance as PC Boden attempted to subdue him.
“While attempting to place the handcuffs on the suspect, PC Boden observed a swinging motion in his peripheral vision, and later observed that PC Pereira was holding a police-issued ASP baton.”
The officers were both told the incident was under investigation on October 2017 and it was decided they would undergo a tribunal for alleged gross misconduct last December.
It was alleged that Mr Pereira used excessive force.
It was further alleged that Mr Boden failed to act with honesty and integrity, had abused his powers and did not report his colleague's misconduct to his superiors.
The case was scheduled to be heard by a tribunal, but the officers asked for a judicial review over the appointment of the three-strong panel.
A tribunal should include a barrister, a layman and a police officer, but Mr Pereira and Mr Boden argued that the presence of a police officer would lead to the appearance of bias.
Allan Doughty and Marc Daniels, lawyers for the two officers, said that the appointment of a police officer to the tribunal would go against natural justice.
Mr Justice Hargun said: “The core legal argument, as set out in the applicants' written submissions, is that a reasonable observer, fully informed of the relevant facts, would have concern of bias; because, a serving member of the tribunal is appointed by the prosecuting authority and will be under the direct command of the prosecuting authority, while acting as a judge during the court of proceedings.
“It is said that if the third member of the tribunal must be under the command of the prosecuting authority, it follows that the third member will, by definition, always be an ‘interested party'.”
He added: “It cannot seriously be suggested that the mere fact a police officer is a member of the disciplinary tribunal necessarily means that the tribunal can no longer be considered as independent.
“Furthermore, the mere fact an officer is part of the command structure within the BPS does not disqualify that officer from serving on a disciplinary tribunal determining complaints made against other officers of the service.”
The Chief Justice said that it would be a benefit to have a member of the BPS on the panel because of their experience in the police service in Bermuda.
A BPS spokesman said yesterday: “A disciplinary tribunal will now take place in regards to the matters relating to two BPS officers at a date to be agreed.
“The outcome of this tribunal will be released at a point when the process has been concluded.”