The Jeff Cumberbatch Column – Of Signs and Wonders

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

I should start this week with a disclaimer. Despite its title and the epigraph, this essay has nothing at all to do with the identical hendiadys so frequently encountered in the Holy Bible and in the admonitions of the modern day end-timers. It treats rather, less loftily, a physical local sign by now notorious and the wonder of a recent judicial pronouncement emanating from the European Court of Human Rights.

That “RH” sign and public expression

For the quantum of public discourse that it has generated, that notorious sign featured on various social media, and more latterly in one section of the local printed press (not the Barbados Advocate), should have been wildly successful in raising public consciousness, if not for citizens to cease littering indiscriminately, at least for them to conjecture as to the meaning to be attributed to the letters “RH” in the sign. There is a well known Barbadian expletive that fits this abbreviation perfectly; indeed sometimes the two letters themselves are used for emphasis, and this might reasonably be presumed to have been the intention of the sign’s creators, especially since the other offered suggestions offered so far do not fit the bill, syntactically speaking.

Moreover, since the letters are used in an adjectival sense[to describe the littering], as would be the expletive at times, it might be objectively considered that the letters denoted that expletive.

This last point cannot be made too forcefully however, since the expression I am referring to, as most others of similar kind locally, may be used alternatively as a noun, an adverb, a preposition and maybe a conjunction all in the same sentence and to express varying notions. For instance one may be as bright as it, or one may be as “dumpsy” as it, as, equally, one may be either as poor as RH or as rich as RH. In fact, any two contrasting concepts will serve to make the point.

Nevertheless, in spite of its colloquial variety, it is an expression that would probably attract the attention of the local constabulary if used in a public space, and thereby render the user liable to a criminal charge of using indecent language. The constitutional guarantee of freedom of expression in section 20 of our supreme law simply does not extend that far. Indeed, it may be argued that this freedom is expressly qualified in this regard by section 20(2)(a) that immunizes from challenge any law that makes provision that is reasonably required in the interests of public morality, inter alia.

The offence of this nature is usually committed when the expletive is uttered orally. Should it make a difference that the words are not voiced here but rather suggested in a sign and not even expressly but, at worst, impliedly? There are some areas of the law, most notoriously in that pertaining to defamation, where the subjective intention of the publisher is treated as irrelevant and the meaning of the publication is guided by what the ordinary reader or listener would have understood it to mean. It is at least doubtful, however, whether such a holding should form the basis of a criminal charge where a criminal intention to use the expletive would normally be required.

Furthermore, I recall having read somewhere once of a proceeding in one of the local magistrate’s courts when an accused, wearing a T shirt with ostensibly Chinese or Japanese characters, was severely censured by the presiding judicial officer when it was finally recognized that the characters spelt out an expletive if read either upside down or from an appropriate angle. I cannot now recall whether the accused was cited for contempt although, given the nature of the expression revealed, he very well could have been. Was he any less a publisher of the offensive expression in that case than the anonymous creator[s] of the RH sign?

The wonder of the European Court of Human Rights [ECHR]

For those Barbadians, arguably not so few in number, who are opposed, bitterly, fundamentally, diametrically or otherwise, and for whatever reason, to the concept of same-sex marriage becoming a possibility in this jurisdiction, the recently reported June 2016 decision of the European Court of Human Rights that there is no human right under the European Convention on Human Rights to be party to a same-sex marriage might have come as a pleasant and welcome surprise, especially after the US Supreme Court decision in Obergfell v Hodges that imposed homosexual marriage as a right applicable in all the states of the union. In fact, the European decision is over one year old and is consistent with at least three previous holdings of that court that there is no human right to a homosexual marriage and thus the member states cannot be compelled to recognize it. This in spite of Article 12 of the Convention that reads;

“Men and women of marriageable age shall have the right to marry and to found a family. According to the national laws governing the exercise of this right.”

Despite the apparent breadth of the text however, the European Court has consistently ruled, utilizing the principle of subsidiarity; whereby the Court limits its ability to review a domestic authority’s decision and that of the doctrine of the margin of appreciation; through which member states are permitted to vary in their domestic law from their Convention obligations just so long as this variation does not cause the very essence of the Convention right to be impaired, that there is no obligation on a member state to legitimize homosexual marriage. In 2010, the ECHR held that the right in Article 12 was granted in the context of strictly traditional forms of marriage so that an Austrian couple could not allege discrimination because they were denied the possibility to marry or have their relationship recognized by Austrian law. In 2012, The Court held in a case involving a lesbian couple in a civil partnership who complained that the French courts would not allow them to adopt a child as a couple, that “in view of the social, personal and legal consequences of marriage, the applicant’s legal situation could not be said to be comparable to that of married couples.” And in 2014, the Court pronounced, in a matter from Finland, that the law did not require member states “to grant access to marriage to same-sex couples…”

I have already argued in this space that the local antagonists to same sex marriage have little to worry about. While we have not as yet enacted a provision equivalent to that in the Jamaica Charter of Fundamental Rights and Freedoms 2011 to the effect “no form of marriage or other relationship…other than the voluntary union of one man and one woman may be contracted or legally recognized in Jamaica”, This is precisely the common law position that now obtains locally and would have to be changed by appropriate legislative action, if at all.

168 comments

  • de pedantic,

    There is extensive literature on plea bargaining. I suggest you brief yourself on the subject.

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  • de pedantic,
    Have you noticed this undemocratic attorney general, either out of ignorance or vindictiveness, is now suggesting that to be accused of a gun offence the suspect would be remanded for a mandatory 18 months before coming to trial. In simple English, to be a suspect in a certain type of crime is to be automatically sentenced to 18 months in jail. Guilty until found innocent. The trial will just be a formality.
    In a plea bargaining system, the prosecution will propose that if the accused pleaded guilty to a lesser offence s/he would not face 18 months in jail. The judge and defence counsel will have to be part of this conspiracy. There is enormous scope for corruption.
    Do you now see the need for radical reform of the criminal justice system?

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  • @Hal Austin October 17, 2017 at 9:57 AM “suggesting that to be accused of a gun offence the suspect would be remanded for a mandatory 18 months.”

    I heard the AG’s suggestion.

    It won’t work.

    If an accused is mandartorily remanded for 18 months and is subsequently found not guilty, then he/she would be quite within their rights to appeal the injustice to the Caribbean Court of Justice, and the court would likely find for the accused, and the government, that is the tax payers could be successfully sued for false imprisonment. As a Barbados taxpayer I don’t want to find myself caught up in this.

    I am as afraid of violence as anybody else, but I would advise the AG to pour cold water of this suggestion.

    I didn’t go to the AG’s public consultation last week, but if I had attended I would have told the AG that what we need most to prevent [not punish] violence in Barbados is better parenting, not mandatory 18 month remands, including better parenting by some of the political class who set really bad examples by not parenting their outside children, and then the other men in our community follow the example of these leaders.

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  • RE some of the political class who set really bad examples by not parenting their outside children,
    THEY DONT PARENT THEIR INSIDE CHILDREN EITHER. LOL

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  • Well Well @ Consequences Observing Blogger

    Adriel Nitwit, not surprisingly, aint too bright, they are all making things worse, get rid of them.

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  • Hal Austin October 17, 2017 at 9:43 AM #
    de pedantic,

    There is extensive literature on plea bargaining. I suggest you brief yourself on the subject.

    YOU REALLY EXPECT DE PEDANTIC PUNK TO READ EXTENSIVELY?

    you CAN NOT SEE THAT HE HAS TO WAIT TIL SUNDAY TO GET SOME DROPPINGS OF HIS MASTERS TABLE

    THIS SAME MORON AND MEDICAL ILLITERATE, HOWEVER, READ AN ARTICLE ON GOOGLE AND TRIED TO CONTRADICT A MEDICAL TEACHER……….AND HAD TO BE STAMPED ON DE FACTO AND IN FACT IN DIE

    Like

  • “Have you noticed this undemocratic attorney general, either out of ignorance or vindictiveness, is now suggesting that to be accused of a gun offence the suspect would be remanded for a mandatory 18 months before coming to trial. In simple English, to be a suspect in a certain type of crime is to be automatically sentenced to 18 months in jail. Guilty until found innocent.”

    +++++++++++++++++++

    Adriel Brathwaite is engaging in “POLITICAL POSTURING.”

    This is the usual “political knee jerk reaction” to make it appear to the public…………and especially DLP supporters………. that AG Brathwaite is going to do something about the escalating gun crimes.

    Brathwaite is a lawyer and I’m sure he is aware that it is “unconstitutional” for an individual accused of a gun related crime to “be remanded for a mandatory 18 months” before going to trial.

    Just as Hal Austin “said,” the proposed mandatory remand period is essentially implying the accused is automatically guilty until proven innocent.

    But as usual, Brathwaite is playing politics………….. he knows the Bar Association, special interest groups and members of the Opposition will obviously oppose that proposal.

    This gives him the opportunity to tell the DLP faithful that he wanted to do something but the Bar Association and special interest groups are “in bed” with the BLP, thereby rendering him unable to enact any laws.

    Then the usual resident DLP yard-fowls will use this forum to cuss all lawyers, similarly to how BU’s resident DLP jack-ass cussed Charles Herbert.

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  • @Artax October 17, 2017 at 10:27 AM “But as usual, Brathwaite is playing politics…he knows the Bar Association, special interest groups and members of the Opposition will obviously oppose that proposal.”

    I oppose it too. And I am not a member of the BLP, the Bar Association, or a special interest group. I have never been charged with a criminal offence. I have no relatives who have been charged with criminal offences.

    But I still oppose it.

    Because it is WRONG.

    And message to wunna bad guys, put down the guns. A set of young men, shooting another set of young black men is bare foolishness.

    Grandma says so.

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  • Some boy children especially, who are not fathered properly become angry and violent. And the natural father does not have to be the biological father, but sadly some stepfathers too are also worse than useless.

    Fix the bad parenting and we could almost empty Dodds.

    But sadly even though all of our men enjoy sex, far too many [not all] take no interest in the very hard work of parenting.

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  • @Dee Word

    Do you know how effective the ‘informal’ plea bargaining system to which you refer has been effective?

    Like

  • Well Well & Consequences Observing Blogger.

    “Brathwaite is a lawyer .”

    Brathwaite just like Fruendel, was never a GOOD lawyer, neither of them know squat about the law, or Fruendel would never have advised tiefin house speaker Carrington….to get a lawyer….AFTER…. Justice Cornelius had already given her default judgment….

    ……ya dealing with a parliament filled with idiots, despite their degrees….and I use the word degrees very loosely.

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  • Well Well & Consequences Observing Blogger.

    To make it worse, I just can’t resist this….all the idiots in parliament agreed with the same idiot Nitwit Brathwaite to fingerprint citizens of Barbados upon their return to the island…..had not for Commisiong spotting that clear violation of citizem’s rights and acting upon it to stop them through the supreme court, they would have gotten away with it….and be relishing in violating their own people’s rights.

    These are the same ignorant, stupid ministers, most of them with law degrees who are protecting white international criminals convicted in US for committing crimes in Barbados and who knows where else and calling it protocol….while acting as though Barbados has no constitution and no citizens to protect….no one can trust them going forward.

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  • David as usual in a few words you encapsulate a mobaton of meaning. Your simple sentence viz “Do you know how effective the ‘informal’ plea bargaining system to which you refer has been effective?” achieves that here.

    In sum, formally, my answer is no, I don’t. Informally, I have an absolutely freaking good perspective.

    @HalAustin October 17 at 9:43 AM   RE “There is extensive literature on plea bargaining. I suggest you brief yourself on the subject.”… As a layman who is sans your more in depth familiarity due to your past profession I am nonetheless quite suitably briefed on the subject.

    Thus I am confounded wherein lies the disconnect here.

    You speak of a formal system in  criminal justice.  I refer simply to the informal process that will take place in practically EVERY criminal event brought to trial.

    I simply asked what slippery slope you saw re a formal process, because on its face it seemed no more fraught to corruption or usurpation than no such system.

    Actually, no I did not read the AG’S remarks.  That seems absurd to me as he would be seeking to codify and  formally shatter alll processes related to the natural justice presumption you noted re innocence.

    Surely the legal system in Bdos could not accept that nonsense.

    In my view that’s not a matter of reform…just good old fashioned dictatorial rulings and politicizing as Artax notes.

    Yet having said that our lawyers appear to accept the very informal’ lost way on remand process’  currently done…. soooo maybe the AG is seeking to codify what is de facto accepted.

    BTW, Dr GP clearly you got your daily laxative release on my de factoing remarks…😂.   And you are right, I can’t read lengthy stuff nor understand facts as presented…didn’t go to school much either…. so indeed how dare me interpret a news story differently to you. Woe is me.

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  • prophecy vs. prophesy

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  • DE BRIMBLER

    RE so indeed how dare me interpret a news story differently to you. Woe is me.

    I REALLY DONT KNOW WHY YOU WERE SO STUPID TO INTERPRET THE MEDICINE ….NOT THE NEWS STORY INCORRECTLY AND REPEATEDLY TRY TO CONTRADICT ME

    HAVE YOU NEVER HEARD IT SAID….” DOGS AMONG DOCTORS”

    I DID NOT COME HERE FOR ILLITERATE CURS LIKE YOU TO TRY TO CONTRADICT ME ON STUFF IN MY FIELD ABOUT WHICH I AM/WAS 100%

    I DONT SUFFER FOOLS GLADLY

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  • Seems we are bent on putting ourselves in a quandary here. Plea bargaining is essentially designed to save the court, in most cases , the government time and money. Good lawyers use plea bargaining when they believe if a case is held , their client may receive a harsher penalty, they therefore in such cases, accept or advise a plea bargain.
    On the other hand the prosecution (government) may offer a plea bargain to “get something” if they feel that the defense can lick them up or if they have trouble with hostile witnesses etc. In many cases an alert defense , knowing the record of the judge handling the case, may also opt for a plea bargain.

    I am not surprised that we are so negative to anything new. We have been known to fight against: Seat belts; breathalyzer test; Sunday shopping; moving Lord Nelson, becoming a Republic; abolishing the Eleven Plus( Common Entrance Exam).
    On the other hand , I once heard a call -in program moderator(female) declare that we should not rush to judgment when men beat up women because it is part of we culture ! On another occasion, I heard another moderator and political scientist (male) say that the 1937 Riots was not any “real riot” it was just people “pushing over bread carts”. Connect the dots…we are sometimes very strange people.
    There is absolutely nothing wrong with plea bargain.

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  • William,
    There should have been a public debate, whichever side of the discussion you are on. Governments simply cannot impose these changes on citizens. In the meantime, I suggest reading some of the literature coming out of the US on plea bargaining. It is not as basic as it appears.
    Those of us concerned about the use of the criminal justice system as a mechanism of social control are very concerned.

    Like

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