The Jeff Cumberbatch Column – Law as a Weapon

There is no sense of duty to the individuals of the island as a whole. There is no sense of responsibility for broad and reasonable treatment. There is merely a sense of class –Clennell Wickham on the planter assembly of his day.

Material for my weekly musings come from the most unlikely sources. My current reading here, a judicial decision there, a matter in the public domain elsewhere. This week’s fodder comes from, of all places, Facebook and the public group, Old Time Photos Barbados where members post thematic contributions ranging from scenes of bygone Bridgetown, to photos of past sports teams and of clippings from old newspapers.

In this last mentioned category are to be found some true historical gems such as an account of then Trinidad & Tobago Premier, Dr Eric Williams, burning a copy of the Constitution of the West Indies Federation and some other documents in Woodford Square on April 27 1960; a report on the final hours of the Federation on April 11, 1962; and an April 15, 1930 item on the outcome of the Bailey v Wickham libel case.

I consider a commentary on this last most apt for today’s “Musings” since it is published on the day immediately following National Heroes’ Day in Barbados and, ever since the nominations to that category, voices have been raised in support of the inclusion of the defendant in that case, Mr Clennell W Wickham. Too besides, I am a keen student of the law relating to defamation and the admittedly brief case report provides some intriguing points of inquiry.

Moreover, that case itself is inextricably interwoven with the claim for Wickham’s national hero status, given that it was as a consequence of his journalistic advocacy against the planter class that the imputation in question was published and that it was as a consequence of the comparatively substantial award of compensation to the claimant Bailey that Wickham was forced into exile to Grenada from Barbados where , according to one account, he suffered “several years of frustration and great hardship” before dying there in 1938, aged 43.

The historians have been kinder by far. According to Sir Hilary Beckles in his book, A History of Barbados (1990), Wickham, when he became editor of the Barbados Herald, “used its pages to provide working people with information and analyses relevant to their political condition…” And Sir Keith Hunte has remarked, “The Herald provided a medium through which its editor, Clennell Wickham, “poured trenchant criticism on the political behaviour of the local oligarchy and called attention to social ills that needed to be remedied.”

It was such a piece of trenchant criticism that instigated the action for defamation. In the offending article, Wickham recounted how Bailey, who had unsuccessfully contested the seat for the City of Bridgetown, had cancelled his advertising in the Herald and refused to pay for an advertisement that had already been run on his behalf, “ostensibly because Wickham had publically (sic) supported two of the other candidates” in the election.

Wickham wrote further that it was disturbing when men like Mr Bailey, “who make a boast of their wealth are deficient in the qualities of good taste, good humour, and that indispensible quality of gentility which enables a man to take defeat like a man. I have an abiding conviction that he is the only one of the five candidates who could be such a contemptible creature.”

The case was tried before a judge and jury and it is safe to assume that a jury in 1930’s Barbados would scarcely have comprised people similarly situated as Mr Wickham, what with the property and income criteria to be satisfied.

Indeed, these still find place in our existing Juries Act, Cap 115B, though now to a much reduced extent. By section 4 (1)(d) of that Act, qualification to serve requires either a payment of taxes of not less than $ 960 immediately before the qualifying date, or actual receipt of a yearly income of $1440 or, according to section 4(2)(b), marriage to such a person and be otherwise qualified.

In a defamation trial with a jury, the panel plays a critical role. While it is for the judge to determine whether the imputation is capable of being defamatory, it is the jury who decides whether it is in fact so -whether it would tend to lower the claimant in the estimation of right-thinking members of society. The judge would also determine the applicability of any defences. Once that matter has been concluded, it then falls to the jury again to assess the level of compensation payable, if any.

Clearly, the judge here would have found that the words were capable of being defamatory and the jury would also have considered that they were in fact defamatory of Mr Bailey. The brief newspaper report gives no indication of whether the attorneys representing Wickham raised any defence, but the level of compensation awarded -£1450 plus costs-, appear in hindsight almost punitive.

One contributor to my FB page where I shared the post suggests of the sum awarded, “today’s value is about £87,140. This answer is obtained by multiplying £1,450 by the percentage increase in the RPI, but there are other ways of calculating the present value which give values ranging up to £654,400…”

So far as a defence is concerned, the matter appears ripe for an argument that the impugned words were at least a fair comment on a matter of public interest, now known in Barbados law simply as comment –see section 8 of the Defamation Act, Cap 199. Here, Wickham would have had to establish (i) that the imputation was comment and not a statement of fact; (ii) that the comment was based on true facts; (iii) that it was on a matter of public interest; (iv) that it was the honestly held opinion of the publisher; and (v) that the statement was not actuated by malice.

Given the value judgment of “contemptible”, the uncontroverted assertion that Bailey had refused to honour his contractual undertaking and that the matter related to the conduct of a would-be Member of Parliament , I should think that the first three elements would have been immediately satisfied.

As to honesty, since 1887 it had been decided that “fair criticism is bona fide criticism, criticism which represents a possible view of the case, i.e., a view of the case which it would be possible for a reasoning man to hold.

Having not read a transcript of the decision, I cannot comment on whether malice on Wickham’s part was pleaded and established to the jury’s satisfaction. Nevertheless, given the other circumstances, the award appears to be punitively excessive and presumably designed to teach Wickham a lesson. It succeeded.

84 comments

  • Gabriel what are you worried about .the election would be called the Bees would emerge as the biggest losers making in right in the history books and life goes on

    Like

  • So exactly what is going on with this new DPP…she rushes to arrest a mother for the death of her 11 year old boy, did not arrest the person Maloney who built the structure that caused the childs death, but cannot answer calls regarding. the 11 year old case lingering in the closed Supreme Court of someone who is actually charged and on bail for killing a mother…she appears to be just an extension of the deceased DPP.

    While these disgusting dishonest lawyers want the Supreme Court to close for recess in May, when they could have all completed and closed these cases they deliberately left lingering for over decade in the Supreme Court.

    …what is the matter with the registrar’s office…why are cases not being listed.

    People are now advising others to walk with their own lawyers who can practice in the Caribbean, do not use any Bajan lawyers…and stay away from the courts if you can, in my mind that is good advice.

    http://www.nationnews.com/nationnews/news/153019/son-justice-mum

    The man eventually arrested and charged with the offence was Valentine Stevenson, of Hope Road, St Lucy. He was interviewed by the police at the scene. After he was charged, he was granted bail and has been on bail since then.
    The case took about seven years to get through the Holetown Magistrates’ Court. It was heard at least four times per year. André would either have to leave work or not go to work at all. For the majority of those days, the case would be adjourned.

    Though André said the case was supposed to be heard last October and Donna Babb-Agard, now the Director of Public Prosecutions (DPP), was identified

    as the prosecutor, no listing of it was found in a search of the High Court schedule.
    Also, attempts to clarify the present status of the case with Babb-Agard were unsuccessful as repeated calls to her were not answered, and neither were calls returned.

    “October has come and gone and nothing happened. Trying to get hold of the DPP after that time has been unsuccessful. Every time I go to their office to enquire about it, the only thing the secretaries can tell me is that it was supposed to have happened. But there is no movement on it,” said sullen-faced André.
    He is now worried that the ongoing environmental problems at the Supreme Court Complex will further delay justice for his mum.”

    Like

  • I have stated for the record that I believed the women who accused Cosby of sexual assault and I also wrote earlier that Cosby’s conviction was mainly on the strength of the statements he made during the earlier civil case which was settled out of Court. There was an agreement that those statements should not be used against Cosby in any criminal matter but the Prosecutor reneged on that agreement. This case is unique because generally civil suits are launched after guilty verdicts have been handed down against the accused but the plaintiff in the civil suit received a settlement from Cosby and then testified against him in the criminal matter.

    Under US law, accused in criminal matters have the right to “plead the Fifth” which grants them the right to refrain from making statements that are self- incriminating when facing potential criminal liability. Generally, that right is not recognized in Civil cases and some States expressly forbid it but Cosby could have used it and one wonders if Cosby was reassured by the promise that his statement would not be used against him and felt free to talk about his interactions with many women. Cosby’s lawyers tried to prevent the Prosecution from introducing the statement into evidence at trial but were overruled by the trial judge.
    It will be interesting to see if Cosby’s lawyers pursue that issue in lodging their appeal.

    Like

  • @Hal Austin April 30, 2018 1:58 PM “Operation Libertad …Operations were directed from Barbados and supported by Interpol command centres in Lyon, France and Argentina’s capital Buenos Aires…The co-ordinated raids were the result of a two-and-a-half year project funded by the Canadian government, which also trained specialist officers for the team.What about our sovereignty? However serious the case, if Interpol or any other police force is interested in crime committed in Barbados they must operate under our jurisdiction, not that of Canada’s. How independent are we?

    No where is the passage which you quoted did I see anything to support your view that the action was conducted under Canadian jurisdiction? I read, and please correct me if I am wrong that the Canadian government funded the project and trained specialist officers (presumably officers of the countries where the actions were carried out, including Barbados). No where did I see anything which I would lead me to believe that Canada infringed on Barbados’ independence.

    i am glad that Canada provided money, and or training and money. Nobody should be forced into slave like conditions, and no young woman, no woman should be forced into a an isolated area to serve as a sexual thing for any man.

    i ain’t right Hal.

    If it was your mother, wife or daughter being forced into prostitution you would be singing a different tune.

    Do you have no good feelings for other people’s mothers, wives and daughters?

    Like

  • @Mariposa April 29, 2018 8:12 AM “Hate to take away from the intented analysis of the article. However i am trying to understand the justice in convicting Bill Cosby of a crime on he say she say evidence. One would think that the justice system would be more prudent in relying on evidence which would be forthright and within the bounds of clarification towards beyond reasonable doubt

    Look you I…Sexual assault rarely takes place in the presence of witnesses, so there will always be an element of he say, she say. The jury listens to all parties, and then makes a decision based on the evidence presented.

    The Cosby jury had decided.

    He has plenty of money, access to high priced lawyers, and the right to appeal.

    Like

  • @Hal Austin April 29, 2018 9:09 AM “Historic allegations are always suspicious.”

    Why are historic allegations always suspicious?

    Like

  • @Georgie Porgie April 29, 2018 1:45 PM “WHEN HE WAS FINISHED A LAD SOUNDED FROM THE TOP OF THE LECTURE THEATRE “SIR, WHAT IS A “DAR”?

    I am willing to bet anything that that lad was none other than GP.

    Lol!!!

    Like

  • @Jeff Cumberbatch April 29, 2018 3:11 PM “VOB settled it because it feared if the matter reached the Court it would be exposed to even more damages.”

    Or because it feared mariposa clones on the jury.

    Like

  • Dear Prof:

    Should a wealthy man who refuses to pay his bill not be held in contempt?

    is he not a creature worthy of contempt, a contemptible creature?

    Like

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