Judge upholds police officer’s dismissal
A police officer fired after he was accused of striking a teenage suspect with a baton and turning off his body camera has lost a legal battle to be reinstated.
The Public Service Commission found last year that Oswin Pereira should not have been dismissed for the 2017 incident despite “gross misconduct” in turning off his body camera.
But following a Judicial Review, Puisne Judge Shade Subair Williams found in a judgment written on Monday the officer’s prolonged dishonesty warranted his firing.
Mrs Justice Subair Williams said: “The PSC’s acceptance that Mr Pereira wilfully and dishonesty turned off his body cam was implicit that they accepted that he did so to prevent access to any evidence of video footage of the events which transpired after he turned off the body cam.
“Such conduct is the very antithesis of what is expected of a police officer performing his duties honestly and with integrity.
“This conduct falls within the upper category of serious breaches”
The judge said that not only had Mr Pereira been found to be dishonest, but the dishonesty was self-serving and continual.
Mrs Justice Subair Williams said: “The PSC did not disturb the panel’s findings that Mr Pereira was not only dishonest in wilfully turning off his body camera on May 13, 2017, but also dishonest over two years later on February 8, 2019 when he provided an implausible account to the panel of how his body cam was turned off.”
She added: “Dishonest evidence from a police officer trailing behind a related dishonest act of two years prior, on any reasonable assessment of the facts, screeches for dismissal as a starting point.”
Mrs Justice Subair Williams said PSC’s starting point in the case should have been dismissal or a requirement for Mr Pereira to resign because of the harm he had done to the reputation of the police service.
She added: “Where there are weighable exceptional features which soften the gravity of the operational dishonesty, additional cogent evidence of previous good character may be capable of saving the officer from the loss of his employment.
“In this case, no such exceptional circumstances related to the acts of misconduct arise on the facts.”
The judge quashed the decision of the PSC and ruled that the Commissioner of Police’s decision to dismiss Mr Pereira would stand.
Stephen Corbishley, the Commissioner of Police, applauded the decision and said the reinstatement of Mr Pereira would have been “unacceptable“ for a number of reasons.
Mr Corbishley said: “We would have been faced with a situation in employing an officer who was no longer a ‘witness of truth’ and therefore unable to undertake an operational role in the BPS, in addition to the further expenditure of public monies.
“However, most importantly, the BPS considers the public interest of our communities as paramount - the public must have confidence that those police officers serving Bermuda are honest and professional.
“The BPS has invested considerably in its Professional Standards Department to provide a service that is based on the values of integrity and professionalism.
“I therefore welcome this ruling as it protects and furthers our commitments to the public.”
Victoria Greening, counsel for Mr Pereira, said yesterday: “We are deciding whether to appeal after careful consideration of the judgment.”
The Supreme Court had heard that Mr Pereira and Pc Joshua Boden were involved in a high-speed chase with Talundae Grant on May 13, 2017 which resulted in Mr Grant’s arrest.
Allegations later emerged that Mr Pereira had struck Mr Grant – who died in an unrelated July 2019 traffic collision – with his baton.
Mr Pereira was charged with unlawfully wounding Mr Grant, but was found not guilty in Magistrates’ Court in 2019 after a trial.
Despite his acquittal, a Bermuda Police Service disciplinary panel found last January that the officer had struck the teenager in the head with a baton twice without reason.
The panel also found and that he had turned his body camera off in an effort to cover up the assault.
Footage recovered from the body camera showed Mr Pereira tell his colleague “camera’s off”.
Mr Pereira claimed that he had instructed his fellow officer to turn his camera on and that he did not deliberately turn his own camera off.
He appealed his dismissal to the PSC, who found in August 2020 there was no evidence to support the finding of assault, but rejected his explanation about turning off the cameras.
The PSC agreed his actions amounted to gross misconduct, but replaced dismissal with a “final written warning”.
However Mr Pereira was not reinstated, and the Commissioner of Police filed for a judicial review of the PSC’s decision.
Richard Horseman, who advised the PSC in the decision and represented the body in the Judicial Review, said the PSC had in fact found there were exceptional circumstances in the case, including Mr Pereira’s acquittal and the lack of a body camera policy in 2017.
A body camera policy for the BPS was put in place in August 2018.
Ms Greening argued at the hearing the PSC was the final authority and should not be overruled by the courts unless there were “highly exceptional” circumstances.
She added: “The test is whether or not the decision was perverse and whether or not there was an obvious error in law.
“The PSC has done a good job, and it is not for the court to intervene.”
But Kevin Taylor, for the Commissioner, said public confidence in the police service was paramount.
He said in cases of dishonesty – such as the destruction, suppression or fabrication of evidence by an officer – termination or resignation were the almost inevitable outcome.
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