The Court of Appeal has quashed the court martial decision to dismiss former commissioned officer Lieutenant David Anthony Harewood from the Barbados Defence Force (BDF) four years ago.
Talks are now set to take place between Harewood’s attorney Vincent Watson and BDF officials from early next week on the way forward.
According to Watson, his client, who had been attached to the Barbados Coast Guard before his dismissal, felt “vindicated”.
“Having spoken to David, he feels vindicated, feels righteous and, of course, he is very happy with the decision,” the lawyer told the media following the ruling.
He said he already had a conversation with one of the BDF’s attorneys involved in the matter and suggested: “We perhaps need to have a meeting with the Chief of Staff so that both of us can chart the way forward.”
“Ideally, David should be returning to his job; that’s an ideal situation. But I don’t know how practical it would be, given the fact that right now [there is] obviously a breach of trust. So there might be an alternative that if both parties can agree that [an] alternative perhaps would be the best course of action in the circumstances,” said Watson, who also confirmed that “compensation is the alternative that they were looking at”.
In 2019, Harewood, an 18-year military veteran, was court-martialed and convicted of charges that on an unknown date in January 2018, being a commissioned officer of the BDF, and having knowledge of a threat to the life of Ordinary Seaman Marlon Scott, he neglected to inform his superiors of the threat; and that he conducted unauthorised information-gathering operations, conduct unbecoming of a commissioned officer of the BDF, between January 1, 2014, and September 30, 2018.
He was dismissed from the BDF in June 2019 after a five-member tribunal found him guilty of the two charges.
In the first-of-its-kind appeal of a conviction from a military court martial conducted by the BDF in this jurisdiction, Harewood, through his lawyer, took his former employers before a three-member panel of Chief Justice Sir Patterson Cheltenham KC, and Justices of Appeal Margaret Reifer and Francis Belle.
He had argued that the findings of the court-martial were “unreasonable” and “not supported” by the evidence led in the case.
In handing down the decision during a virtual sitting of the court, Madam Justice Reifer ruled that “there was no evidence of the . . . source of the charge exercised over the appellant”.
The judge explained that there “may have been circumstances” that prompted an investigation that resulted in the discipline of the appellant, “but there was no chargeable offence” under Section 75 of the Defence Act on the evidence led by the prosecution.
“While we can generally and objectively agree that it is probably contrary to the maintenance of good order and discipline among members of the army to have persons conducting unauthorised information-gathering operations, there must be some framework, formal or informal or military or Barbados Defence Force policy or regulation, known to officers and other ranks alike, establishing or defining what constitutes unauthorised information-gathering operations.
“There must be some legal certainty that informs a citizen or, in this case, a soldier what is prohibited so that he or she can regulate his or her conduct,” said Justice Reifer.
The Court of Appeal judge added that clear reporting guidelines were also necessary.
“The prosecution has failed to show, unequivocally, from whom the applicant as an officer in the Barbados Coast Guard should have sought authorisation and to whom he should have reported results of his alleged information-gathering operations if it was established that this was, in effect, the conduct that he was engaged in . . . . There was no uncontroverted evidence of a formal or informal standard operating procedure in this regard,” she said.
“While accepting the inherent jurisdiction of the Barbados Defence Force to exercise disciplinary control over its members, this does not automatically translate to infusing a limitless scope to Section 75 [of the Defence Act] for the creation of criminal offences without due process. Stated differently, the prosecution has failed to discharge the burden of proof that the offences charged exist expressly and or impliedly.”
Justice Reifer added that with the court having reached that conclusion, “it is unnecessary for us to address the grounds of appeal argued . . . of the insufficiency of the evidence to support the two charges and the excessiveness or disproportionately of the sentence”.
“In view of the premises, it is the opinion of this court that the decision of the court martial should be quashed and it is so ordered,” the Court of Appeal judge ruled.
fernellawedderburn@barbadostoday.bb
