Defence counsel Kae Thomas-Palacio has branded a decision to ban a pedlar and fisherman from Dockyard as “unconstitutional”.

In Magistrates’ Court this week, Mrs Thomas-Palacio was defending Buford Thomas who was found guilty of using threatening behaviour towards West End Development Corporation chairman Raymond Charlton.

Smith was given a conditional discharge for 12 months for threatening to swing a punch at Mr Charlton but, additionally, Wedco issued him a letter banning him from entering the entirety of Dockyard “indefinitely”.

Wedco owns Dockyard therefore the area is deemed private property. As such the corporation can ban anyone from entering the premises, even if they have not broken the law.

Mrs Thomas-Palacio told The Royal Gazette: “He [Mr Smith] has been banned from Wedco establishments and the entirety of Dockyard. If he was in Dockyard sitting there quietly, they say that they have the right to call the Police and say that they are trespassing.

“The constitution gives you the right to freedom of movement within your own country or any country that you travel within so to tell someone that they are banned — I deem that unconstitutional.”

The Bermuda Constitution states that no person should be “hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion therefrom.”

However, the lawyer who drew up the letter, Wendell Hollis of HCS Group, which has acted as counsel to Wedco since its inception, pointed out that Wedco could decide to shut its gates and ban the entire population of Bermuda from entering if it wished to do so.

With Dockyard being private property, under section 19 of the Summary Offences Act, Wedco has the same rights as the owner of a business or property.

He said: “It does happen to be that Wedco is a very large private property but it still is private property. In this case it was a request from the Police to issue the letter. Once the letter is issued then the Police can feel more comfortable taking action. It creates the effect of trespass. You don’t actually have to have done anything wrong — the owner of a property can say I don’t want ‘X’ to come on my property anymore and issue a letter.”

According to Mr Hollis, Wedco currently has a list of about half a dozen members of the public who are banned from Dockyard.

Mr Hollis said that Mr Smith had made “nuisance of himself” for some time in Dockyard and had been asked not to clean his fish off the dock near Calico Jack’s which is in the vicinity of tourists. There were no signs prohibiting the act at the time Mr Smith was fishing there. It is not illegal to fish, or clean fish there, but Wedco, as owner of the property, can order that it does not take place. Mr Smith was repeatedly asked by Wedco’s Chairman Mr Charlton to move his gear which is when Mr Smith became agitated and threatened to punch him.

Mr Smith also peddles goods to the public and while he has a pedlar’s licence, he doesn’t have the licence issued by Wedco that is necessary to sell goods in Dockyard.

Mr Hollis added: “We wouldn’t just do it for no reason. He has been making a nuisance of himself for a long time — that was just the straw that broke the camel’s back. Often people have been banned because they come on the property to sell stuff without permission or offer concessions and excursions.”

The onus will now be on Mr Smith to approach Wedco for the ban to be lifted if he so wishes.

While Wedco has the powers to ban people from its property, the same does not apply to the Corporation of St George’s or the City of Hamilton whose property is public.

A judge, under the Magistrates Act, does have the right to ban a person from a particular area on the basis of the judge’s power rather than based on the ownership of land.

Just last month, James Warren was banned from entering the parish of St George’s after being released on bail on four counts of prowling.