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Tuesday, December 09, 2008

The Legality of the Commissioner of Police Action

................Above: Mike Jackman, Rondalph Liverpool and George Jackson instrument of oppression
This Document was prepared by me and submitted to Chief Inspector Anthony Muchette the police officer prosecuting the case and Chief Inspector Boyce the Presiding officer over the proceedings

A Voire Dire challenging legality of the Main Charge in the first instance, all other charges that was derived from the investigation and this trial, COP V/S Allan Palmer.
It is alleged by the Commissioner of Police that he gave me an order not to publish the Bermuda Police Service (BPS) business on the blog Crushing Fools which can be access via the web address http://crushingfools.blogspot.com/ (which from here will be refer to as the blog.) The first question we must answer before we proceed any further is whether or not the content of the blog can be considered the business of the Bermuda Police Service.

Before we get to that stage we must first clarify and conclude on the following definitions, we must be clear on what is:

  • An opinion

  • A rumor

  • And what is or considered personal or institution’s business

  1. I will start by defining what an opinion is.

    An opinion is a conclusion (which may or may not be a statement of fact) drawn upon base on information obtained via the sensory organs. Examples of there are as follows.
    An opinion base on the sense of smell: While I was walking though a neighborhood I detected a strong aroma of cherry. Base on the aroma I conclude that the aroma was as a results of someone making cherry Jam. This conclusion that I came to base on the aroma I detected is an opinion. Now if efforts were made and my conclusion was verified, then my opinion is now a statement of fact. If it was proven that another source was responsible for the aroma, then my opinion still remains an opinion. It is also important to note that opinions are not set in stone; they can change when more information is received by the sensory receptors.

    • Opinion formulated base on the sense sight: We can also come to a conclusion based by observing a persons behavior, an action, or a phenomenon.

    • An opinion bases on the sense of hearing: We can formulate an opinion base on a story, a rumor or a declaration of another that we were privilege to have heard. I can go on but I believe that these examples will be sufficient for you to get a clear understanding.

      2. A rumor:
    A rumor is an unverified story that is being passed around as a fact. It is also important to note that an individual can formulate an opinion base on a rumor also. Personal and institutional Business: This is the official business of a person or an institution; this business can be confidential or otherwise. And such must be obtained by being in a position of trust. This can be from obtaining that information from the person or from a key person in that institution, or from being put in a place where one can access such information.

    It is important to understand that no one who was trusted with confidential or other information that can be considered the business of an individual or an institution do not have the rights to speak of such publicly, or to publish or to cause part or all of that information to be published. It is also important to note that to do the foregoing without the permission of the owner of the information may not be unlawful or illegal but it may be unethical.

    Having examined the foregoing definitions and having examined the content of the blog; you must conclude that the content of the blog cannot be considered the business of the BPS. All of the information that is posted on the blog is my business and my opinion. The said information is my business as it relates to the unfair or unjust treatment that I received at the hands of key personnel in the Bermuda Police Service.

    My experience is my business to speak about publicly, to publish or to cause to be published. It is unfortunate that the Bermuda Police Service have been administering treatment to me, that if make public can/will reflect negatively on the institution and its management. I can understand the effort of the BPS is making to keep such negative occurrence from the public’s attention, but at what cost.

    Now that I have bring to your attention a comprehensive level of clarity by explaining the facts as it relates to the category under which the post on the blog falls, I know that you can see the problem we are faced with as it relates to the lawfulness or the legality of the main charge from which all the other charges was derived. An understanding which I know the Commissioner of

    Police, his advisers and the investigators had all along. Yet they oppressively caused my stress and frustration by causing my suspension, ordering an investigation, charging me and now causing my illegal prosecution.

    I am forced to ask the following questions; was it the intention of the Commissioner of Police to prevent me from speaking of the Bermuda Police Service business or was it his intention to prevent me from discussing my business as it relates to my treatment in the Bermuda Police Service and my opinion publicly.

    I therefore submit to you that I have never contravened any lawful order the Commissioner of Police allegedly give to me in writing or the spoken words.

    Although I have already proved the illegality of the root charge, I will go a step further in my effort to clarify any question.

    First of all I am going to establish the following as it relates to the Commissioner of Police, as it relates to his responsibility of administrating the affairs of the Bermuda Police Service.

    • Does the Commissioner of Police possess ultimate/unlimited powers?

    • What are the limits of his powers as it relates to giving instruction?

    • Can the commissioner of Police give an unlawful instruction?

    • And if an unlawful instruction is given, does anyone under his supervision have the right to disobey any such order or instruction?
    According to the laws of Bermuda which includes the Bermuda Constitution, The Police Act 1974, and even the police disciplinary code (the Police Disciplinary Code is not law) has lay down perimeter of the powers of the Commissioner of Police. These laws are available to the public at the national library or via the Internet.

    Can the Commissioner of Police give an unlawful order?

    According to section 6 of the Police Act 1974 which states:

    Members of the Service to obey lawful orders.6 Every member of the Service shall obey all lawful orders of his superior officers and Justices of the Peace whether given verbally or in writing and shall obey and conform to all police regulations, orders and instructions made under this Act.
    We must bear in mind that this section did not state that members of the Service shall obey all orders. It clearly states that members of the service hall obey all lawful orders. This in it self tells you that it is not all orders that my come down from the Commissioner of Police may be lawful. And if you must obey all lawful order then you reserve the rights to disobey or refrain from complying with any unlawful order.

    Let us say for example (in an extreme case) the commissioner orders one of his men to shoot an unarmed man who was no threat to him (the Commissioner of Police) or any member of the community, but such order were given because of some grievance the commissioner may have with that individual; and let us say for example that officer shoot the individual who die as a result of a gun shot wound. The question we all are forced to answer is, who will be charged for the murder; the Commissioner of Police or the officer who is inferior in rank to the Commissioner of Police who aim/point the gun at the victim and squeeze the trigger which resulted in the death of the individual? It is obvious that the officer who took the action on behalf of the commissioner will be charged and convicted.

    This is so because the junior officer is only obligated to follow lawful order given to him by his seniors. The junior officer cannot even use duress as a defense. Although in the junior officer’s mind his respect for or fear of the Commissioner’s rank, his position, his authority and his confidence in the commissioner, may very well put the Junior officer under such mental stress that he felt he must comply with the unlawful instruction of the commission and thus the Commissioner of Police may have technically put that junior officer under duress, but under these circumstances duress cannot/will not be considered a legal or lawful defense.

    The order (s) from the commissioner do not have to be so outrageous, or one that can merit a murder conviction or a lengthy term of imprisonment, it may be a simple instruction that may not have any serious consequence, no junior officer is obligated to follow any unlawful instruction, it must be made clear that it is the personal choice of the junior officer if he so wishes to comply with such order. It must also be made absolutely clear and also be known that the junior officer will be solely responsible for such action and any consequence of such action if he knows that such order was unlawful.

    What will be unfortunate for that officer is the fact that the law is clear. Officers are to comply with the lawful orders of his seniors. No officer is obligated to comply with any unlawful instruction of his seniors.

    The Police Act 1974 made of mentioned to categories in this section it speak of “Superior officers” (Superior in this case refers to rank, not management or policing ability) and the “Justice of the Peace.” In this case Justice of the Peace refers to the honorary post that is given to outstanding, respected and reputable members of the community who has the legislated powers of a magistrate as well as the professional (trained lawyers) magistrates; all of whom the commissioner of police is obligated to take orders or instruction form.

    Base on the privileges the Bermuda Constitution give to me. And you notice I use the word privilege, that is because the rights as is outlined in the Bermuda constitution are conditional that it does not cause any serious unrest with in the state, (spreading a falsehood that cause mass panic in the community etc.) in other words in the interests of defense, public safety, public order, public morality or public health; and as long as one whilst in the exercise of his rights civil, constitutional rights, or human rights he does not impede the rights of others.

    Let us once again examine my rights as provided for me under the constitution of Bermuda, as it relates to my rights to form hold and express my opinion freely.

    Chapter 1 of schedule two of the order of the constitution of Bermuda, section 1, subsection, (b) and section 9 subsection 1 clearly states:

    Fundamental rights and freedoms of the individual1 Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, color, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:
    (b) Freedom of conscience, of expression etc.
    Protection of freedom of expression
    9 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

    This piece of the Supreme law is written in clear, simple understandable language that even the simplest of mind could grasp and understand its meaning and therefore needs no further explanation.

    We have examined the powers of the Commissioner of Police under the Police regulation now let us look at the powers of the Commissioner of Police under the Constitution of Bermuda the supreme law in the island of Bermuda: which is to administer the affairs of the Service according to the stipulations laid out in the Police Act 1974 which give him the power to make policies and rules which will see the efficient and effective running of the Service. But such policies and rules cannot supersede the Police Act or the Constitution of Bermuda. In other words the Commissioner of Police cannot grant to himself unlimited powers.

    The Duty of Public officer: According to the Bermuda Constitution as it relates to his/her freedom of expression also has its restrictions and lawful limitations. The lawful imposed restrictions on public officers is unlawful if the expression of the public officer can be deemed to be reasonable justifiable in a democratic society.

    If it was determined that a public officer is deemed to be acting in a manner that was not considered reasonable in a democratic society, then the officer must be informed in writing and asked to desist from the action (s). If not he or she must be left alone to excise his constitutional privilege without interference.

    I submit to you that my actions as it relates to the posting of my business and opinion on the blog, and as it relates to the advertisement on the rear of my car was not unlawful and did not violate any law whether criminal or common law, and neither did my action violate any ones right or imposed on any one civil liberty or freedom.

    Now I have brought sufficient evidence to prove that the order as it pertain to me as a policing operating and posting of information on the blog Crushing Fools of which I am the professed administrator was unlawful; even though the posting of some of the articles on the said blog may be different to the opinion of that of Commissioner of Police and a few of his senior officers. The order which he gave was indeed unlawful as the main intent was to censorship. And therefore was an imposition of my under mentioned and protected rights and I have no obligation to comply with any such order.

    This brings me to a very important section of the constitution, as outlined in Chapter 1 section 3 subsection (1) which deals with the protection from inhuman treatment which states:

    Protection from inhuman treatment3 (1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.
    This is what is presently happening to me, I was forced to work under and in a very hostile environment and because I refused to comply with unlawful instructions I am punished, (suspended) and have unlawful prosecution be brought against me.

    Even the police Disciplinary Code 1975 section 2 subsection (b) (c) (d) and (f) speak of oppressive conduct.

    (b) An officer may be guilty of oppressive conduct: if a police officer is guilty of oppressive or tyrannical conduct towards an inferior in rank or

    (d) If willfully or negligently make a false complaint or statement against any other officer.
    I have a case of oppressive conduct against several member of the Bermuda Police Service that used their position and authority to aid in my unlawful suspension.

    Allan H. F. Palmer