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PCA head considered 'bailing’ over lack of legal help

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Jeffrey Elkinson

The head of the independent Police Complaints Authority “seriously” considered “bailing” after the Government failed to hire a lawyer to represent the committee when it was sued by protesters.

Chairman Jeffrey Elkinson told fellow authority members in an e-mail how disappointed he was that national security minister Wayne Caines and the Cabinet had yet to give the green light for counsel to be hired.

“Seriously thinking of bailing – too time consuming and distracting and if they are not interested, why should I be,” he asked on March 29, 2018.

Another PCA member replied: “I share your disappointment at this lack of support and respect.

“We took up the challenge of producing the most important report in the history of the PCA. This is the dreadful result.”

The e-mails were included in a chain of correspondence which Information Commissioner Gitanjali Gutierrez ordered to be released under public access to information to The Royal Gazette.

The newspaper had requested all records held by the PCA about a lawsuit filed against it in February 2018 by 23 people who were pepper-sprayed by police outside Parliament on December 2, 2016, during a protest about the new airport.

The civil claim came six months after the PCA concluded in an 11-page report that individual police officers were not at fault for deploying Captor spray against a crowd of demonstrators deemed to be “hostile”.

The PCA rejected the Gazette’s Pati request and, after a review, Ms Gutierrez found that most of the records were exempt from the Pati Act because they were created to comply with the instructions, orders or directions of the Supreme Court to carry out a judicial review.

But she ordered that e-mails sent between March 26 and April 2, 2018 should be released, with some personal information about those not in leadership positions removed.

The message thread began with then national security permanent secretary Marc Telemaque advising Mr Elkinson that Mr Caines would be discussing the lawsuit with Cabinet colleagues the next day.

The PCA chairman responded that a court hearing on the matter was due to take place a few days later.

“The authority met yesterday and, as you imagine, the members find themselves in a difficult situation where they are without legal representation in a matter where they have potential personal exposure and no appointed attorney,” wrote Mr Elkinson.

He added: “There is disquiet among the members of the authority, including myself, arising from the fact that at this point in time there are no attorneys appointed.

“If we do not have financial support for the appointment of attorneys then the members will consider and have to act to protect their own positions.”

Mr Elkinson wrote that the PCA relied on the national security ministry for financial backing “as and when we need services”.

He wrote: “We would have expected that there would be no hesitation in providing such a necessary service as legal representation where legal proceedings have been initiated against the authority, particularly as this is provided for in the governing Act.”

Major Telemaque replied that the minister was travelling. He said Mr Caines was “duty bound” to get Cabinet approval since “the likelihood is that counsel in this matter would be engaged for lengthy periods and would ultimately incur significant costs.”

The final e-mail in the disclosure is from Mr Elkinson, on April 2, 2018, when he told PCA members that the minister – a former Crown counsel – and his new permanent secretary had attended the court hearing before the Chief Justice.

“ … the minister addressed the court on the issue of the time needed to get the funds to pay for an attorney to represent the PCA,” wrote the authority chairman.

“He was very good to have turned up and I think that he enjoyed being back in court again – he’s good at it! We ended up with an order adjourning the matter …”

A separate Pati disclosure, issued last week by the Ministry of National Security (see separate story), shows that the Government hired a private law firm to handle the matter in January 2019.

The civil claim was settled by the Ministry of National Security in February 2019 when 28 people received payouts from the public purse totalling more than $160,000, plus more than $60,000 in legal fees.

The parties signed a confidentiality agreement to prevent them from discussing the details publicly.

Mr Caines described the PCA’s report as “disturbing and lacking the closure only proper accountability can bring” after it was released.

He said he had shared his view with Mr Elkinson, the Governor and the Commissioner of Police.

Police officers in riot helmets on December 2, 2016 (Photograph by Akil Simmons)

A joint parliamentary select committee inquiry into the December 2 protest concluded the PCA was wrong to find that no one ordered officers to use pepper spray and that an officer would be heard issuing a command in video footage from the day.

Mr Elkinson, who was reappointed as PCA chairman for a three-year term in July 2019, did not respond to a request for comment and nor did former minister Mr Caines.

* To view the PCA emails and the Information Commissioner’s decision, click on the PDFs under Related Media.