On 2 December 2016, Chief Justice Kawaley gave judgment in the criminal appeal case of Fiona Miller (Police Sergeant) v Emmerson Carrington  SC (Bda) 106 App.
The DPP had charged Mr. Carrington with an offence contrary to section 47(1) of the Proceeds of Crime Act 1997, in that it was alleged that, on 29 November 2013, Mr. Carrington had tipped off another person [B] that they were about to be investigated for money laundering, in such a way that the proposed investigation was likely to be prejudiced.
The Magistrate had acquitted Mr. Carrington at first instance; the DPP appealed against the decision to acquit; and Chief Justice Kawaley dismissed the appeal, and maintained the acquittal.
But in doing so, Chief Justice Kawaley recounted a remarkable series of facts and allegations. It seems, for example, that the Defendant was involved in a love affair with [B], another police officer, and that [B], in turn, was involved in a separate love affair with another police officer, [A], and that this is what caused the Defendant to send a WhatsApp message warning [B] of the investigation into [A], as follows:
” I’m not supposed to say anything but r u aware that he’s being investigated…Don’t wanna scare u but they might come to search ur house at some point…apparently he n [C] using their accounts to send money to ppl in Jamaica from Jamaica drug men here…Just putting u on ur guard…”
The Defence case, in summary, was that the WhatsApp message did no more than repeat what was already the Police Service’s “worst kept police secret“, and that the disclosure was made for ‘love’, not money.
Having carried out an extensive legal analysis of section 47 and a number of authorities cited to him, Kawaley CJ concluded that the Magistrate had made an error of law in accepting the Defence case, and therefore clarified the state of the law in the DPP’s favour.
However, the Judge decided not to remit the case to the Magistrate for further determination, but to acquit the Defendant (alternatively to direct that he be granted an absolute discharge in the alternative).
In doing so, the Judge appears to have acknowledged that he was involved in an exercise of judicial mercy, having been persuaded by the Defendant’s counsel’s submissions that the Defendant was acting out of ‘love’ and not out of ‘dishonesty’. The Judge’s comments were as follows:
“As disgracefully unprofessional as the Respondent’s behaviour undoubtedly was, his ultimate defence (if all other things were decided against him) was that he committed what his counsel described in closing as an “indiscretion” and that he should be given the benefit of the doubt. There was credible evidence before the Court that the disclosure was motivated by love and not corruption. It is impossible to safely conclude that, had the Learned Magistrate proceeded to consider whether the Respondent knew or suspected that his disclosure was likely to prejudice the investigation that he would have declined to give him the benefit of the doubt. As the Respondent stated under cross-examination, he was trying to get B to leave A and he was playing the role of “sort of her knight in shining armour with no facts…” Indeed, a trier of facts would have to have a heart of stone to conclude that a senior Police Officer should be found guilty of a career-ending offence based on such unusual facts…”
By way of footnote, the Court noted that “nothing in this Judgment should be taken as suggesting that this Court does not appreciate the importance of protecting the integrity of money laundering investigations and enforcing the highest standards of probity within the Bermuda Police Service“.