Court Of Appeal Ruling In Bishop Splatter Case
The Court of Appeal ruled that the “Chief Justice was wrong to conclude that the Respondent’s right to freedom of expression under section 9 of the Constitution was violated by the pursuit of criminal proceedings in this case”, in relation to former police officer Barbi Bishop who was alleged to have posted an ‘All Lives Splatter’ meme on social media.
Back in June 2020 the police confirmed that an officer was suspended from duty due to a “disturbing social media post”, and around 15 months later, the police confirmed that they “accepted her [Ms Bishop] resignation with her last working day being the 27th September.”
In 2020 the Department of Public Prosecutions approved a charge against her of allegedly “sending a grossly offensive message via a public electronic communications service,” however in August 2021 the court ruled that the “criminal proceedings against the Applicant be dismissed.”
At that time, in August 2021, the Chief Justice said, “The Applicant is already facing disciplinary proceedings for gross misconduct based upon the same facts which, if proved, may result in a dismissal from the BPS, the Court is not satisfied that the concurrent criminal proceedings under section 68(1)(a) are no more than necessary to accomplish the legitimate aim being pursued.”
Following that ruling, an appeal was launched, with the Court noting that “although the Appellant is identified as ‘the Queen,’ the proceedings are in reality conducted on behalf of the Attorney-General.”
The latest ruling from the Court of Appeal [PDF] said the Chief Justice “was wrong to hold that, in effect, the inchoate disciplinary proceedings rendered the prosecution not to be reasonably required.”
The ruling noted that the respondent, as in Ms Bishop, “has not been present or represented on the hearing of this appeal” and said “having prevailed in the Supreme Court, the Respondent, an American citizen, relocated to Florida and took no part in the hearing of this appeal.”
It added, “The Chief Justice was wrong to hold that, in effect, the inchoate disciplinary proceedings rendered the prosecution not to be reasonably required or reasonably justifiable. At the time of the hearing in the Supreme Court, no one could predict the future outcome of the disciplinary proceedings or whether the Respondent would choose to remain a member of the Bermuda Police Service long enough for any likely sanction to take effect.”
“It is important to focus on the full context of this case. Having done so, I consider that the context and timing of the post were both offensive and inflammatory. The content, especially the “all lives splatter” meme and its history, would inevitably be grossly offensive to those who were intent upon participating in a peaceful march four days later. Although, and partly because, the timeframe was short, it was calculated to have a significant impact. Otherwise, one might reasonably ask, why post it?”
The ruling said, “It follows from what I have said that, in my judgment, the Chief Justice was wrong to conclude that the Respondent’s right to freedom of expression under section 9 of the Constitution was violated by the pursuit of criminal proceedings in this case” adding that “the appeal is therefore allowed.”
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