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Five years on, secrecy still surrounds pepper spray payouts

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Protesters at the BIU headquarters the week after the December 2, 2016 protest (Photgraph by Blaire Simmons)

Secrecy still surrounds the decision-making that led to a payout of almost a quarter of a million dollars from the public purse to 28 people who protested outside Parliament on December 2, 2016, and their lawyers.

Five years on from the infamous clash between police officers and demonstrators opposed to a new airport deal, little has emerged to enlighten taxpayers about why and how the $225,000 settlement was negotiated – or exactly who benefited.

A lawsuit brought by 23 protesters against the independent Police Complaints Authority never made it before a judge.

The Government decided instead in February 2019 to settle out of court with 28 complainants and have all parties sign non-disclosure agreements, to save the “costs of a lengthy court hearing” and end the “prospect of any further proceedings.”

That meant the grievances set out by the plaintiffs in their claim – including that they were prevented at Hamilton Police Station from filing criminal complaints against officers they alleged had assaulted them and that the PCA failed to make separate findings on their individual complaints – were not aired at a civil trial.

An issue they raised as to whether two former police officers, Andrew Bermingham and Winston Esdaille, should have sat on the six-person complaints panel was never discussed publicly.

Nor did the PCA get to defend its inquiry and subsequent August 2017 report, which was prompted by 26 complaints from protesters and which one committee member described as the “most important” in its history [see separate story].

The decision to settle was taken several months before a separate parliamentary inquiry into the protest wrapped up, hampering that committee’s efforts to interview those who were injured.

The joint select committee reported in May 2019 that …“some protesters who had filed complaints with the Police Complaints Authority were reluctant to appear due to a stipulation contained in a legal document.”

According to a Ministry of National Security spokesman, all parties to the settlement signed a “legally binding, confidential document” which banned them from "divulging the details or nature of the settlement“.

The complainants wanted a judge to order the PCA to conduct a fresh investigation into each of their complaints, with a new panel which did not include two former police officers, as well as “further and other relief”.

What they got was a gagging clause and – apart from one beneficiary who was paid $48,000 – a cheque for $4,200.

Demonstrator Craig Looby, one of the plaintiffs, believes he was the only one of the 23 people named in the lawsuit who rejected a payout.

“A deal was cut, and the reason I didn’t sign is I wanted this to go to court,” Mr Looby said [see separate interview].

The national security ministry, which negotiated the deal and paid out the money, still claims confidentiality prevents it from releasing much information about the settlement, even though the public footed the bill.

And a planned statement to Parliament on the matter from Wayne Caines, the Minister of National Security when the deal was reached, was postponed by the Speaker of the House and then quietly shelved.

Mr Caines resigned as minister in July 2020 and his successor, Renee Ming, has said nothing on the settlement.

The amounts given to those who blocked MPs’ access to the House of Assembly and were pepper sprayed by police were only revealed when Michael Dunkley, the premier when the protest happened and now an Opposition MP, shared a public access to information response in the House of Assembly.

Mr Dunkley told MPs in July 2019 that a “concerned Bermudian” submitted the Pati request to the ministry.

The ministry disclosed the amount of the 28 payouts but claimed there was “no record or document to explain” how the payments were calculated.

The $161,400, plus an additional $63,600 thought to be for legal fees, came from the Government’s Contingency Fund.

The fund was later replenished at the financial year end by the Ministry of National Security, using money from the Royal Bermuda Regiment’s budget.

Mr Dunkley told The Royal Gazette: “It’s like they found some slush fund somewhere and they paid it out.

“You can’t non-disclose taxpayer funds.”

The ministry withheld the names of those who received the public funds on the grounds it was personal information and said it would not share who authorised the payouts, only that Permanent Secretary Collin Anderson gave “approval”.

But the initial 23 plaintiffs had already been publicly named in the lawsuit. [see separate story]

Assuming all but Mr Looby accepted a payout, that leaves the identities of six remaining beneficiaries a mystery.

Alleging mistreatment at the hands of the police, the 23 plaintiffs sought a judicial review of the PCA’s decision that though “mistakes were made in the BPS at senior levels” there was no misconduct by the officers on the ground who used pepper spray after trying to clear a path to Parliament and finding themselves “surrounded by a crowd deemed to be hostile”.

Many of the complainants, represented by law firm Trott & Duncan, were members of the Bermuda Industrial Union.

Winnae Wales, who protested on the Reid Street side of Sessions House, is pictured at BIU headquarters the week after the demonstration. She recalled she heard a warning from police that pepper spray and tasers were to be used if she didn’t move. She claimed that as protesters locked arms and blocked entry to Sessions House, police “pulled out their pepper spray and started to spray people in the their face.” (Photograph by Blaire Simmons)

Some were interviewed by the Gazetteat the BIU’s Union Square headquarters early the next week, when they alleged that the police had been violent and confrontational.

Video footage from the day shows one officer on a wall, higher than the crowd, spraying Captor towards them.

Marie Smith, 75, at the BIU headquarters the week after the December 2, 2016 protest. She told how she got captor in her throat and it felt like she was “choking”. She said she “didn’t see nobody attack any policeman” and claimed the officers treated demonstrators “like a bunch of dogs.” (Photograph by Blaire Simmons)

The lawsuit claimed “many demonstrators were seriously injured and assaulted by members of the BPS.”

But the court filing, the PCA report and the parliamentary report all fail to detail the injuries received or reveal whether any protester required hospital treatment.

A photograph from the day shows a woman being stretchered on to an ambulance and protester Dornielle Farrel described seeing a woman end up on the ground.

He said in a statement included in the May 2019 parliamentary report: “One of the police officers must have kicked the gate open and then I saw a female bus driver backing up against the steps and the police officers tried to pull her out of the way and she fell back and landed with a resounding whack. She just laid there.”

Protestor Andre Simmons, pictured at BIU headquarters the week after the disturbance, alleged he was punched in the ribs and back by officers after being pepper sprayed. Mr Simmons was not listed as a plaintiff in the civil lawsuit filed in February 2018. (Photograph by Blaire Simmons)

Statements made by nine police officers, also included in the parliamentary report, describe attacks on the police, including one in which a protester, David Saltus, who later pleaded guilty to assault, hit a policeman on his helmet with an umbrella.

Bermuda Police Service said on December 6, 2016, that six of its officers were injured.

The next day, it clarified that 14 officers were allegedly assaulted: six suffered actual bodily harm and eight were commonly assaulted. Three were treated at hospital and released the same day.

Those officers and the woman on the stretcher bring the number of people known to have been treated at King Edward VII Memorial Hospital to four.

Mr Devine was attacked at about 10am.

BHB provided the Gazette with emergency department attendances, anonymised and based on diagnoses, for December 2, 2016 after 1.15pm, when the clash took place.

A spokeswoman highlighted three cases as being confirmed as related to the protest: an abrasion caused by a fall, chemical conjunctivitis caused by pepper spray, and irritated eyes and burning sensation in left hand from pepper spray.

All three patients were discharged. The data suggests there were no admissions from the protest and that it wasn’t an unusually busy day for the emergency department.

There were 82 attendees for the whole day; on an average day, there are 88.

The spokeswoman said KEMH, which was prepared for an influx, did not have to use its mass casualty escalation plan.

Although 15 people went before the courts, only one person is known to have been convicted of an offence.

Edmund Smith, 52, was jailed for a year for striking Inspector Scott Devine repeatedly with a wooden stick.

Inspector Scott Devine on December 2, 2016 (Photograph by Akil Simmons)

Saltus, who wielded the umbrella, received a six-month conditional discharge.

He was one of ten people, including three of the civil lawsuit plaintiffs, charged with offences related to the protest and bound over to keep the peace for six months.

A public access to information request submitted to the PCA by The Royal Gazette in September 2018 for records related to the judicial review was rejected.

Information Commissioner Gitanjali Gutierrez largely upheld the refusal, though she varied the reason for non-disclosure and ordered the release of two records, in a decision released in September this year [see separate story].

Requests to review the Supreme Court case file on the civil lawsuit received no response.

Mr Caines and PCA chairman Jeffrey Elkinson did not respond to requests for comment for this article.

The Gazette sent questions to Ms Ming through the Department of Communications but got no reply.

* To view the civil court filing, which was first published on the Offshore Alert website, the Information Commissioner’s decision on the PCA, and the BHB data, click on the PDFs under Related Media.