A leak



In Bermuda, of late, the euphemism(?) 'a leak' appears to refer to the deliberate disclosure of confidential and secret police documents relating to an investigation of the $8,000,000 loss of money from a Government quango's (Bermuda Housing Corporation) some of which is or was suspected of having been purloined by some Government Ministers. It appears someone is unhappy with the extent of the police investigation and has released papers into the public domain, via the press.

There has been reference to the documents ‘leaked’ having been stolen and a suggestion of ‘handling stolen goods’. But is what has actually happened:

  1. Whistle blowing?

  2. Using the press to assist with enquiries?

Has ‘theft’ of the documents actually occurred or is this actually not a criminal offence but a civil or disciplinary matter?

  • Whistle blowing

To my knowledge Bermuda has no whistle-blowing llegislation. In the absence of such laws and processes, how do Government employees, to include police officers, voice their concerns?

With regard to the BHC investigation, the following has been reported:

When the investigation finished three years ago, then Acting Director of Public Prosecutions Kulandra Ratneser said many of those investigated could only be accused of bad ethics. He also said some of the people investigated escaped prosecution due to Bermuda’s antiquated corruption laws.

Really?  Or is it the case that some escaped prosecution because they held posts that caused them to be considered differently to the ordinary man in the street and resulted in a decision being made not even to interview them.  Unless you ask the questions of people, how do you know what they will say, what stance they will take, what evidence will be acquired - why just give up?

Indeed, there is an argument that these people should have been given the opportunity to face the allegations and provide their account, give their side of the story to extricate themselves from the investigation.  With regard to Government Ministers, why would public servants, when asked questions about the disappearance of public money from a Government quango, be anything other than accommodating?

It appears whoever released the documents, naming Government Minsters being associated with a Government quango's loss of public monies, into the public domain was less than satisfied with the enquiry. Are the public, to some extent, entitled to know more about the loss of their monies, from their government?

  • Press Assistance

If the recent reports are correct, it appears that whoever disclosed the report may have done Bermuda a service, albeit at some personal risk - the threat of prosecution.  Only time will tell how this person (if identified) will be considered - criminal or courageous.  It is said that following the revelations and the reporting in the press, someone has come forward to admit their role in the scandal.  A case long closed and no longer under investigation, that has left the BHC bereft of millions of dollars has been revitalised; what the police were unable to achieve in two years has been addressed in a few days ...

If the police had taken a more pro-active stance during the investigations and commenced interviewing Ministers suspected of involvement, is it not possible or likely that the 'whistle-blower' would have come forward two years ago, when the investigation and evidence was 'fresh'?

So who released the documents, with whose knowledge and authority did they act and will we eventually learn that this was a calculated act designed to rattle a few cages, spark the public into action and attempt to resolve what appears to be one of Bermuda's worst financial scandals?  Is this the only way that Bermuda can deal with such scandals, events that appear to go right to the very top of Government?

Or did whoever liberated the correspondence simply do what many had whispered about or desired; ensured the information was with the public who are the victims in the scandal - it is their monies that are in the possession of the deceitful and dishonest.  Is one of the reasons the investigation stalled, or was stalled, that the monies have no readily identifiable 'owner'.  This is not $8,000,000 stolen from an individual but a large sum of money taken from a Government, an organisation - they have plenty more money, it has not hurt them and cost each Bermudian what ... a little over $130 each? 

  • Theft

Apparently, Mr. Ratneser, a consultant to the Attorney General, told The Royal Gazette:

whoever leaked the papers was guilty of a criminal offence and that ZBM could also be implicated for handling the documents, which were clearly stamped confidential, and broadcasting them to the public.

Really?  Theft is the "dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it".  Note Mr. Ratneser is reported as saying that the person 'was' guilty, not may be or 'could be', but WAS!  So much for innocent until proven guilty - we question what facts Mr. Ratneser possess that enables him to make such an assertion.  The Bermuda Criminal Code provides:

Basic definition of theft

331 (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.

For theft to occur, all the constituents of the offence must be present.

"With the intention of permanently depriving the other of it"

336 (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if but only if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(2) Without prejudice to the generality of subsection (1) where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

By placing the papers with the press, as opposed to selling them or using the to extort monies (blackmail), as examples, in what way would who ever appropriated the property be 'intending to permanently deprive'.  The moment the press publicised their possession of the papers there would be a call for theirr return or the press may voluntarily have handed them over.  Whoever hands papers to the press is very likely to know that they would be returned to their owners - the police, the Government, the public? On what basis would it be argued that there was an intention to permanently deprive?

If the release to the press amounts to a criminal offence, if there is criminal legislation to cover such action, why does the police discipline code (see below) include the specific 'breach of confidence' provision at 6(a) and 6(c)?  Is it that handing papers to the press does not constitute a criminal act, or that it is too grey an area to be covered by the Criminal Code - in which case why is Mr. Ratneser apparently certain a criminal offence has been committed?

It does not appear that whoever took the papers had an intention to treat the property as their own, the papers were handed to the press, given up. Whether a criminal offence has been committed does not appear clear cut, except to Mr. Ratneser, why?  Is it that this is simply posturing, designed to play to the masses, appears the Government and frighten whoever released the information? 

  • Discipline

the police discipline code can be found by clicking here but the following is of note:

The following shall be the offences against discipline, that is to say:—

6          Breach of confidence, that is to say, if a police officer —

(a)        divulges any matter which is his duty to keep secret or confidential; or

(c)        without proper authority, communicates to the public press or, to any unauthorized person, any matter connected with the Police; or

(d)        without proper authority, shows any person outside the Police any book or written or printed documents the property of the Government, which is not intended for publication to unauthorized persons; or

The following should also be considered in relation to the original investigation of the allegation that $8,000,000 had 'disappeared' from the BHC.  Does the apparent failure to investigate or at least interview all suspects and pursue the enquiry vigorously constitute a disciplinary offence?

The following shall be the offences against discipline, that is to say:—

(e)            fails, when knowing where any offender is to be found, to report the same, or to make due exertions for making him amenable to justice; or

Was there so much money floating around that some of it not only apparently went the way of the Government but also found its way into other sections of the community, law enforcement? IF a government Minster or ministers were 'on the take' is it unreasonable, inconceivable to believe those associated with law enforcement were also corrupted?

What of malfeasance - a stock 'offence' which occasionally raises its ugly head in the UK and can cost an officer their job.  Malfeasance, misconduct by an official is an offence which appears to be missing from the Bermuda statutes.

Is it the case that all the talk about finding the leak and prosecuting whoever released the papers, is intended to mask:

  • an inept investigation by the police

  • corruption in government?




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