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

  • Moral of the story…
    The Law is, has always been, and will continue to be …an ass.

    The question is…
    Why does Jeff continue to put such high value on the back of a donkey…?
    ….while dismissing off hand, the spiritual realities that really drive everything that exists.

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  • 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.(Quote)

    @Jeff, so after 52 years of constitutional independence accused persons are still not tried by a jury of their peers. It is law that to be a juror one must be a taxpayer, however that is defined, or employed and paying income tax or be married to a taxpayer. Does this not compromise our democracy?
    So unemployed single people who are not property owners are automatically ineligible. Who are the people most likely to appear before the courts accused of criminal offences? Would it not be more democratic if panels of jurors were drawn from the electoral register?

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  • @Jeff

    Is there a pubic link to the case (Bailey v Wickham) cited?

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  • 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

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  • de pedantic Dribbler

    @Mariposa, your remarks are indicative of the same careless, biased analysis you display with your political commentary so could you at least allow some minimum of reason in this space in deference to the fact that the Dean presents clear, factual strong essays and offers equally clear and balanced analysis!

    How can you call the second of two trials which have both contained reams of evidence to generally support the claims made a simple case of he said, she said…

    How can you dismiss the fact that Mr Cosby himself admitted to administering drugs to other females in circumstances not dissimilar to the one under trial …

    How can you talk of prudence of evidence so cavalierly when the trial had testimony of several other women who could separately attest of similar treatment from Mr Cosby….

    Question the conviction on some point of legal missteps or prosecutorial over each but please dont come to a serious space with silly sentiments ….

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  • Mariposa April 29, 2018 8:12 AM

    Historic allegations are always suspicious. Without forensic evidence, they are based on he say, she say.

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  • Sir i am not being cavalier in my opinion. Rape is a violation of an individual body soul and spirit and should be taken seriously which also includes giving the accuser as well as the victim fair and equal justice
    The modern day justification which our courts cavlierly seems to adhere as equal fair and prudent justice as was demonstrated in the bill cosby case goes back to an era when he say she say was given as proven evidence to convict blacks of rape charges
    I now shudder to think that society lead by the American justice system is heading towards that direction .
    Yes he did admitted to given them qualludes to have sex
    However where does the victim responsibility apply in saying No when Cosby suggest they take them.

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  • Well Well & Cut N' Paste At Your Service

    Sometimes it’s best for all that the ignorant stay ignorant, it’s safer.

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  • Mariposa April 29, 2018 9:29 AM

    Some men have always taken medicines to help them perform sexual activity. When I was a little boy I heard about Spanish Fly, today it is Viagra, which when it first came out was a prescription drug. Now in the UK it can be bought over the counter. Viagra is now out of patent and there are al kinds of substitutes.
    Historical allegations depend on the credibility of witnesses.

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  • de pedantic Dribbler

    @Hal, are you really going to engage with such trite remarks…SMH.

    I accept that by historical you mean dated from prior period (long ago, as in not immediately after the act), but are you really offering in a serious way that absense DNA evidence there can be no other valid evidentiary bssis to convict historical cases such as this! Really, again SMH!

    @Mariposa, for sake of context I initiated this debate. For sake of sanity I now close it.

    Your newer remarks are also lacking reason and too totally contradictory…:…you drug someone and take advantage of her/him but it’s (their) fault because they foolishly took the drug you offered which you advised to soothe their nerves/headache/relax them….and this is comparable to the worst of racial inequality when Black men were routinely victimized in sexual harassment/rape cases with white woman!

    That sir is out-of-this-world analysis….literally so.

    You are much too analytical for me to match you in debate thus I concede on your points…whatever galaxy they are attempting to get to!

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  • de pedantic Dribbler April 29, 2018 10:11 AM

    I am saying that in historic cases, for the sake of argument those of years, decades even, where there is no forensic evidence, innocence or guilt will be based on circumstantial evidence.
    By the way, forensic evidence includes the scientific testing of the medicines allegedly used during the alleged offence.

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  • Sir i presented an agrument to you based on historical fact.
    I also argued that an individual has the right to deny any drug whether prescribed or suggested to be taken
    These individuals all sixty of them forwards the same allegations against Cosby however none of them said No now you want me to belive on said evidence that their sexual encounter was rape
    Also void of forensic evidence or medical evidence which none of these victims would have pursued logically if raped you want me to belive that all sixty victims mental abilty to not seek medical treatment was impacted by their ordeal
    There are sufficient holes to underscore that these victims had consensual sex. The word No never crossed their lips when taking the pill a pill which should have been a red flag
    Then the absence of medical treatment after the encounter would have been suffucient evidence of conclusion
    Sixty women could not be so celebrity stricken not to seek medical treatment if they were “Raped”

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  • de pedantic Dribbler

    @Hal, this is the blog of an accomplished legal scohlar and jurist so I would ask him to opine on your remarks at 10:24.

    I am not aware when the preponderance of circumstantial evidence became a bad thing!

    DNA is irrefutable of course but it is not the end all and be all of every case,

    Anyhow, if the Dean can speak to the issue that would be great.

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  • I am not aware when the preponderance of circumstantial evidence became a bad thing!(Quote)

    I said no such thing.

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  • Jeff Cumberbatch

    Is there a pubic link to the case (Bailey v Wickham) cited?

    Unfortunately no, David. And local law reporting in those days was unstructured at best. I will make a search in the Library.

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  • Jeff Cumberbatch

    However i am trying to understand the justice in convicting Bill Cosby of a crime on he say she say evidence.

    @ Mariposa, if he say she say evidence were enough to preclude a conviction, few would ever be convicted. The aw does not merely throw its skirts in the air where there is a conflict in evidence, it seeks as best as it could to ascertain who is telling the truth. Circumstantial evidence, similar fact evidence, propensity and the demeanor of witnesses all have a role to play in this assessment.

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  • Sir both evidence must not be complict of each other.
    Presenting hearsay evidence should be andvmust drawn along similar parimeters as forensic in that what i say should met or be held as truthful within the same framework as forensic
    The question is finding the truth in a case of over thirty or more years ago whereby none of these victims have not in anyway presented clear and conclusive evidence that they were unaware of cosby sexual intentions
    Even after what they concluded to be rape and none of them seeking medical attention and still finding it necessary to socialize with Cosby
    This case would be a text book memory and go down in history as a blantant afront to Truth and equal justice
    One cannot mixed apples and oranges in a basket and pretend that because the oranges are more than the apples the resulting conclusion be that all are oranges

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  • Jeff Cumberbatch

    If the Dean can speak to the issue that would be great

    The Perry Mason TV show might have made us believe that circumstantial evidence id in his words, Irrelevant, immaterial and inadmissible. In fact it is not and indeed may be of high probative value.

    Circumstantial evidence is also known as indirect evidence. It is distinguished from direct evidence, which, if believed, proves the existence of a particular fact without any inference or presumption required. Circumstantial evidence relates to a series of facts other than the particular fact sought to be proved. The party offering circumstantial evidence argues that this series of facts, by reason and experience, is so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence.

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  • Jeff Cumberbatch

    *One cannot mixed apples and oranges in a basket and pretend that because the oranges are more than the apples the resulting conclusion be that all are oranges(

    You would agree, however, that the basket contains fruit and if the charge is possession of fruit, then you are guilty. You would be likely escape only if the charge is that you are carrying oranges alone!

    Liked by 1 person

  • JC understood. However in my humble opinion a case going that far back would be very hard to reach convinable conclusion on solely evidence provided most of which were hearsay.
    Rape cases are not built on solely
    what the victim provides as evidence.. proof of such evidence must be conclusive by medical or forensic method
    Which in the Cosby case was absence

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  • de pedantic Dribbler

    I ceased but cannot desist..🙃

    @Mariposa, do this for me please. … when debating, FIRST establish FACTS clearly. SECOND, argue based on the facts, do NOT argue based of what YOU THINK are the facts. Pretty please, it’s called rationale duscourse!!

    “Rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without THEIR CONSENT.”(my emphasis).

    Mr Blogger your remark on rape above is a NONSENSE..

    You cannot drug anyone under any circumstances, have sex with them in their drug induced state and then CLAIM consent. Repeat…if it’s without CONSENT then it’s rape under the law.

    So here’s a quiz for you. One answer only based on facts, not what you think are facts🤣

    1.Husband has coitus with his wife who said ‘no darling, not tonight’. She was upset he went against her consent so aggressively and because of other lingering issues was totally peeved by his actions. She filed a police report. Is this a case of …

    A.Unresolved, lingering family squabbles
    B.The prelude to an all expenses paid vacation and shopping trip for the wife and her bestie
    C.A serious problem for husband after a rape case is initiated by police.

    2.John’s girlfriend went camping with him. On a secluded (they thought) pristine beach cove they were skinny dipping and decided to get revved up. Just as John was about to start his engine his girlfriend noticed they had company some yards away and told John to stop and why. He was every bit the true exhibitionist and despite his GF’s continued protestations and tears he proceeded to rev that engine to max piston depth. The viewers were impressed and waved in appreciation before they wandered off.

    A.Is this about a car race and John’s driving skills
    B.Were the viewers impressed because John’s GF was crying from his pistoning action.
    C.Can John be charged with rape.

    Your likely answer key. 1A, 2B

    Oh lawd!

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  • Jeff Cumberbatch

    Rape cases are not built on solely what the victim provides as evidence.. proof of such evidence must be conclusive by medical or forensic method. Which in the Cosby case was absence

    @M, Was Cosby convicted of rape?

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  • JC According to the news release and the valiant tribulation of the victims. cosby was found guilty of rape or sexual assault

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  • “A jury found Bill Cosby guilty of three counts of aggravated indecent assault on Thursday, for drugging and sexually assaulting Andrea Constand at his home in a Philadelphia suburb in 2004.”

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  • Jeff Cumberbatch

    JC According to the news release and the valiant tribulation of the victims. cosby was found guilty of rape or sexual assault

    Rape is a form,perhaps the worst form, of sexual assault, but they are not the same thing. Rape requires proof of penetration, Sexual assault does not!

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  • “Allegations that comedian Bill Cosby drugged and raped multiple women since the 1970s have brought a controversial psychological term to the surface: somnophilia, a fetish for sex with a sleeping person.”

    ” somnophilia is sometimes known by the nickname Sleeping Beauty syndrome.”

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  • JC but given the perponderance of evidence which detailed penetration and which was described by the victims as rape .one would be lead to belive that in the court of law such evidence should be followed by medical proof. How then must a jury be lead to belive that the victim has a sexual encounter without their premission.

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  • Thanks Jeff!

    [ac’s head is very hard. A dispassionate discourse will never win against an emotional argument]

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  • “How then must a jury be lead to believe that the victim has a sexual encounter without their permission?”

    ac fool……….Bill Cosby was found guilty of drugging and sexual assaulting Andrea Constand……….NOT raping her.

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  • @Mariposa
    However i am trying to understand the justice in convicting Bill Cosby of a crime on he say she say evidence
    ++++++++++++
    Little Butterfly

    Cosby was convicted partly on the strength on his admission on a deposition he provided in the Civil suit that the principal accuser brought and for which he was promised immunity (which will probably be the basis of an appeal). Any he say/she say was bolstered by the fact that other women came forward with similar stories about their interactions with Cosby.

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  • @Jeff
    “Too besides, I am a keen student of the law relating to defamation……..”
    +++++++++++
    As a reader of your column I am intrigued by your use of “Too besides” which I have noticed in some of your other articles. I haven’t seen its use in any other publications and a cursory search tells me it is primarily “West Indian” I am familiar with the phrase but I don’t remember other Bajan or “West Indian” writers using it, so what prompted its use and would your English language professors at Cave Hill accept it especially when “besides” is accompanied by “too”?

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  • Exactly..Cosby ADMITTED to drugging women years earlier in a sealed deposition to avoid being convicted back then, a judge unsealed the deposition and he got convicted by his own damn words of confession, every news media carried the story. Some women never knew he put something in their drink that is why they could not move or remember much of what happened, but they knew they were either sexually assaulted or raped…all 55 women.

    he has 9 different civil suits to settle for that same crime.

    Don’t know how anyone can twisty of that or get it wrong, should have stayed in school longer.

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  • West Indian
    Moreover; also.

    ‘‘You not listening, and too besides you don’t have to shout at the damn bird so!’’

    https://en.oxforddictionaries.com/definition/too_besides

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  • @Hants

    That was the product of my cursory search.

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  • The interest it what unravels in the US space while interesting threatens a conclusion that can be made from Jeff’s piece. It exposes how an independent legal system is influenced by the culture and social leanings of the day. Who is to say the inclination for greed and malfeasance cannot do similarly today?

    “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.”

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  • would your English language professors at Cave Hill accept it especially when “besides” is accompanied by “too”?

    THE ANSWER IS YES
    DR RICHARD ALSOPP, WHO TAUGHT USE OF ENGLISH CLASSES AND WHO WROTE ON THE USE “NATION” LANGUAGE AND OTHER SUCH PHRASES WOULD

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  • @GP

    I just checked my Allsop’s (which I should have checked before) and it lists “to beside” as well as “too besides” and according to Allsop the latter sometimes written as one word is a redundant adverb phrase.

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  • Very informative

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  • I SAT IN A CLASS IN IN 71 IN WHICH ALSOPP CAREFULLY EXPLAINED THE SUFFIX “LING” AT LENGTH
    DUCK-LING, GOS-LING ETC
    WHEN HE WAS FINISHED A LAD SOUNDED FROM THE TOP OF THE LECTURE THEATRE
    “SIR, WHAT IS A “DAR”?

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  • Jeff Cumberbatch

    …and according to Allsop the latter sometimes written as one word is a redundant adverb phrase.

    Thanks for your inquiry, Sarge. I did come across the expression in reading sometime ago, perhaps a West Indian novel or other piece of writing, and I have used it on numerous occasions since. Ir is an expression I am quite fond of despite its technical inaccuracy, …much as I detest the use of “notwithstanding” by itself without a qualifying subject.

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  • Jeff Cumberbatch

    It exposes how an independent legal system is influenced by the culture and social leanings of the day. Who is to say the inclination for greed and malfeasance cannot do similarly today?

    I am disappointed that the discussion turned to the actions of Mr Cosby, although it is not a totally irrelevant issue. But the treatment of Wickham by the local court in that case clearly exemplifies how the law may be used as a weapon against an enemy in the hands of those who control the system.

    Is that analysis also indicated in the Cosby case? Or did he get his just deserts?

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  • David BU Why must one be convicted of having a hard head because of difference of opnion
    Btw when last did u have a “hard dick” am i now to belive because of the unlimited time you spend on this website that you are unable to have a hard dick and maybe bolster my evidence by having others to agree with me
    My point being that if the victims evidence includes sexually abuse based on penetration which in their minds is equal to rape and which these victims have attest then medical evidence should have been provided.
    Once the victim says verbally or by sworn statement they were raped the preponderance of evidence lies with them to provide proof no matter how many times it is said.
    Bill Cosby only crime was being a pathological whore who lie down with lies and scam artist
    Maybe he is desrving of punishment not because of those sixty adult women whose had their own motivating agendas to visit this married man but because of the scorn and shame through infidelty he brought to his wife and family

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  • @Jeff C
    But the treatment of Wickham by the local court in that case clearly exemplifies how the law may be used as a weapon against an enemy in the hands of those who control the system
    ++++++++++++
    In my opinion if Wickham used those same words today about an individual the ruling of the Court would be the same. Individuals do have the right to protect their “good name” but we can argue whether the punishment was excessive. Today that is exemplified by what is called “libel chill”, some people are afraid to speak out because of their fear that they will be subject to punitive damages and loss of assets. Although e.g. US Courts are far more acceptable of “fair comment” of persons in the public spotlight the online publication “Gawker” was put out of business because a deep pocketed individual with unlimited resources financed Hulk Hogan’s libel suit against it.

    Locally didn’t VOB settle a potential suit brought against it by a former Minister because of an alleged “libelous” comment aired on the Station by a critic? VOB settled it because it feared if the matter reached the Court it would be exposed to even more damages.

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  • de pedantic Dribbler

    @Dean Jeff, why disappointed! True Cosby is legally miles removed from the Wickham and Bailey case but exactly as you noted the law as a weapon link is clear.

    He got his desserts on one hand but surely for years he used the power of the law and his influencial power to stave off prosecution.

    It is indicative of the times as it was back in 30s that powerful people get their way in the legal system and that it’s only as a result of the powerful currents of changing social dynamics that there are momentary disruptions to the power play.

    The other thing (and this is a stretch clearly) is the hero matter. Wickham as you noted was mentioned as worthy of being a national hero. Cosby based on all his achievements was actually seen as an excellent example of hero worship in the Black US community. Cosby is now much the anti-hero; Wickham stature will continue to grow.

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  • @Jeff

    Clearly there is merit to have theses kinds of matters debated in public fora, it is the only way an ignorant public can be enlightened. Many ‘trust’ the justice dispensed by the court system based solely on what it represents but there are the covert and not so covert issues that muddy this and other societal transactions. The recent Pilgrim Vs Bannister incident should be required discussing in context).

    In the US like Barbados money will buy the best influence in any situation, same in Barbados but you have to add status.

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  • Jeff Cumberbatch

    In my opinion if Wickham used those same words today about an individual the ruling of the Court would be the same. Individuals do have the right to protect their “good name

    @ Sarge, I do not agree with your main point. The essence of my column was to show that the defense of fair comment should have played a central role in the ultimate decision. Yes, individuals do have the right to their good name, but freedom of expression is a guaranteed right and ought not to be superseded by an exception or qualification of that right. In the UK, where defamation claims are more contested by newspapers, this tension is entertaining the judicial mind, and freedom of expression appears to be winning!

    Moreover, the absence of a probably prejudiced jury today would doubtless ensure a different outcome, certainly on the damages.

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  • @Sargeant

    Whether the ruling we could opine would’ve been the same, let us agree the punishment when converted to present value is excessive? Then the issue is valid for this reason alone.

    The bench exposed its skirt!

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  • Jeff Cumberbatch

    Cosby is now much the anti-hero; Wickham stature will continue to grow.

    @DPD, No argument from me here!

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  • Jeff Cumberbatch

    @David, Agreed, and Wickham’s pen had to be “confiscated” by the oligarchy of the 1930’s.

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  • yeah..well he is still convicted, so try unconvicting him, idiot, no wonder Bajans are always targets for disenfranchisement,, too many damn idiots blighting the population.

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  • de pedantic Dribbler

    @Sergeant, the Dean argued the case above so I amused by your assertions @2:45. As a non lawyer I can only add that I find it incredulous that a man who refused to pay his agreed advertising contract because he was upset that the advertiser did not support him would win a libel suit today (in your view) because he was called a “contemptible creature” for that ‘fraud’!

    Are you not being too spare re the Gawker case. That deep pocket billonaire was muddied by the same Gawker and he indeed had every intent to bankrupt them (just as Bailey was muddied by the ‘Herald’. Moreover, Gawker was sued for publicizing a PRIVATE tape of sexual activity between two consenting party who never agreed that they private act be made public. Not sure I see the connection to the Wickham matter.

    That VOB case is an amazing puzzle so I’ll leave that there. But if a journalist states a fact about a man’s new found wealth and darkly asks him to validate the sources of said wealth and is then sued for libel which leads to his company settling….and that makes sense then “something is fishy in Camelot”

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  • Jeff Cumberbatch

    The bench exposed its skirt!

    Damages would have been assessed by the same jury, not the judge. Our law has sought to restrain excessive awards in this context- Defamation Act 1996, section 27

    In directing the jury as to the quantum of damages which may be awarded, the judge may direct the jury that they may have regard to the quantum of damages awarded in personal injury cases.
    (3) It shall be the duty of the jury to assess the damages in accordance with the instructions given pursuant to subsection (2).
    (4) Without prejudice to any other powers vested in it, the Court of Appeal may, on appeal against an award of damages under subsec- tion (1) increase or reduce such award or substitute its own award of damages.

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  • Jeff Cumberbatch

    Locally didn’t VOB settle a potential suit brought against it by a former Minister because of an alleged “libelous” comment aired on the Station by a critic? VOB settled it because it feared if the matter reached the Court it would be exposed to even more damages

    @Sarge and DPD, This matter remains a mystery. Self censorship is one thing; concession to a dubious claim is another. Insurance played a part, I feel sure..

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  • de pedantic Dribbler

    Oh dear, pkease excuse the mistrypes and grammar errors at 3:07…. Good heaven’s and too think I tutored English for a period. Contemptible, I am!

    Mr Blogmaster, don’t agree or I may consider seeking the Dean’s wise counsel to sue your blog🤣

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  • Note the VOB vs Barney Lynch was NOT tested in Court!

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  • @JC

    We can agree to disagree, and Wickham was probably a thorn in the side of the Establishment but how in heaven’s good name can this be considered fair comment?

    “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 punishment can be considered excessive but any reasonable jury would have reached the same conclusion re defamation of character.

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  • @Sargeant

    For referring to Bailey as a ‘contemptible creature’?

    #steuspe

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  • Jeff Cumberbatch

    We can agree to disagree, and Wickham was probably a thorn in the side of the Establishment but how in heaven’s good name can this be considered fair comment?

    @ Sarge, “Fair” is not a commonsense expression, but legal term of art. I gave the legal meaning in the column-

    “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.

    The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson , stated that the test was:”Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticized?”

    Given Bailey’s nefarious conduct, might not a fair “reasoning” man hold of him the same opinion as Wickham did?

    Like

  • In some jurisdictions depending on issue some folks opt for trial by Jury others by Judge; both have their advantages. The Judges apply the law and sometimes prevailing wisdom; the juries apply the law and some are swayed by circumstances, public opinion, prior knowledge, prevailing wisdom and bias.

    Judges and Juries are not infallible but I think we are looking back at this case through a 21st century mindset. Wickham is a hero because of what he did to advance the rights of the working class in Barbados, a voice for the voiceless and oppressed against the plantocracy and monied interests, any decision against him is now viewed by through that prism.

    Jeff willingly shares his knowledge on this forum and as a legal scholar is certainly deserving of the plaudits that come his way but this layman is just stating his opinion.

    Like

  • @Sargeant

    Does it matter that this occurred back when? The factors though of a different flavour then are as applicable today.

    Liked by 1 person

  • The side point to Jeff’s article is that Clennel Wickham is related to Peter Wickham. Given the ready access he has to the media one would have expected that he would have written voluminously on how Clennel Wickham was persecuted in his time. If he has done so the blogmaster will be quick to apologize.

    Like

  • @David

    John Wickham – Clennel’s son and a journalist would have been able to paint a more contemporary portrait of his father. According to a short bio of John, he wrote his memoirs titled “World without End” perhaps it covered his father’s travails.

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  • @Sargeant

    Thanks, unfortunately Amazon is temporarily out of stock. Maybe Baffy who dropped a post on this blog will ask his good buddy Peter to fashion a comment as to why he has been silent on what seems on the surface to be a grave injustice perpetuated on Clennel Wickham by the justice system of the day.

    Like

  • @David

    I bought a “used” copy through Amazon after it reported it was out of stock of new copies. incidentally there is a chapter on John Wickham in a book titled Double Passage sub titled “The Lives of Caribbean Migrants Abroad and at Home”

    It is by George Gmelch and I bought it several years ago.

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  • Jeff,
    I would posit that Clennel Wickham was expressing a belief and which should have been considered by the court.The words “I have an abiding conviction ” is tantamount to saying ” it is my belief,or simply I believe”.A court is in error to suggest one’s belief is not sacrosanct.
    That fine was more than punitive in 1930.Thats a lot of money even today about $7000.00 let alone a time when wages in Barbados was for the majority people ‘starvation wages’.

    Like

  • pieceuhderockyeahright

    @Mr. Jeff Cumberbatch

    De ole man is starved of the intellect that many here possess so I shall not venture into dese non pertinent things Amurican like you did wid dat ammmmmmm…….

    But as to the central topic of your blog it would seem to de ole man that what the luminary has outlined would suggest that factors that we and are external to the substantive matter of the legal case incorrectly and adversely impacted on the outcome of this case, to the detriment of Mr Clennel Wickham.

    De ole man is relying on John Houseman and Paper Chase when I would say that me thinks that a jury, armed with the direction of an honest judge, would have seen fit to instruct a dismissal on the basis of at least four if not five of the conditions of the act.

    But then again, De ole man has seen situations where judges and the court are just the instruments of the powers that be and those who are either less fortunate as denizens of the ghetto or those with more social capital or money in dem pocket DOES GET OFF SCOTCH FREE when similarly charged because of being the part of the brotherhood of the rose or the Masonic lodge.

    When you come into your rightful inheritance Mr Jeff Cumberbatch it is De ole man’s prayer that you will not depart from the principles that you consistently posit here pun Barbados Underground while, unlike de ole man, not cussing a feller, nor maligning nuhbody nor libelizing a feller or a lady’s name.

    In one breath, a part of me respect men like you and would want to grow up and become principled like you.

    But in de next breath, de ole man would be quick to point out that there may be some benefit to be had from situations when a feller from these dispossessed communities, when he finds the law unfairing he, like Clennel Wickham, tek de law in he hand and throw a few stick of dynamite at de Central Police station, like doctor rat in the seventies or kill an adulterous policeman…

    Whu you think…?

    Like

  • Jeff Cumberbatch

    Whu you think…?

    @Piece, I believe that if the chosen field of combat is law, one should fight it there. Appeal!

    Like

  • For all the sobbing Cosby supporters, this should make you feel much better.

    Cosby juror: Comedian’s talk of quaaludes led to conviction
    Canadian Press Canadian Press
    By MICHAEL R. SISAK, Associated Press
    3 hrs ago

    “FILE – In this April 18, 2018 file photo, Bill Cosby arrives for his sexual assault trial at the Montgomery County Courthouse in Norristown, Pa. The prosecutors who put Cosby away said Sunday, April 29, 2018, they’re confident the conviction at his suburban Philadelphia sexual-assault retrial will stand.

    PHILADELPHIA — The jury that convicted Bill Cosby at his sexual assault retrial said that its decision was only influenced by what happened in court, and the youngest member of the panel said that the comedian’s own words sealed his fate.

    Harrison Snyder said in an interview aired Monday on ABC’s “Good Morning America” that Cosby’s deposition — in which he admitted giving women drugs to have sex with them — was the evidence that made him believe he was guilty.

    “I think it was his deposition, really. Mr. Cosby admitted to giving these quaaludes to women, young women, in order to have sex with them,” Snyder said of a deposition that was part of a civil case brought by accuser Andrea Constand”

    Like

  • Will these human traffickers in Barbados and the Caribbean names be made public, now that they are known to Interpol and local police.

    http://www.nationnews.com/nationnews/news/152936/caribbean-countries-named-interpol-report-human-trafficking

    “BRIDGETOWN – Several Caribbean countries have been named in a new report by the Interpol released on Monday showing that hundreds of suspected victims of modern slavery were rescued in a major crackdown on human traffickers in 13 countries.
    .
    According to Interpol, the 350 possible victims of sexual exploitation and forced labour were discovered and 22 people arrested this month in an Interpol-led swoop in countries such as Barbados, Belize, Brazil, Jamaica and Venezuela.”

    Like

  • Did u read the deposition and its legal briefings in reference to Andrea Constance case.

    Like

  • Operation Libertad saved victims in 13 different countries – all photos were taken on an operation in Guyana
    Nearly 350 victims of human trafficking have been rescued by police in 13 Caribbean and Latin American countries.
    The Interpol-coordinated Operation Libertad saved men, women and children trafficked abroad and forced into work.
    Victims were found working in night clubs, factories, markets, farms and mines. Some worked in spaces “no bigger than coffins,” said Cem Kolcu of Interpol’s human trafficking unit.
    Officers arrested 22 people and seized cash, mobile phones and computers.
    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.
    The scale of human trafficking in numbers
    Human trafficking ‘in plain sight’
    Police throughout the Caribbean were involved, including on the Dutch islands of Aruba and Curacao and the UK’s Turks and Caicos islands, as well as in Brazil and Venezuela.
    Operations were directed from Barbados and supported by Interpol command centres in Lyon, France and Argentina’s capital Buenos Aires.
    Tim Morris, Interpol’s executive director of police services, told the BBC conditions in Guyana were “particularly horrific”.
    There, investigators rescued young women who were forced to work as prostitutes near remote gold mines – locations from which they cannot escape and which are hard for investigators to find.
    “Isolated locations make it difficult for officers to avoid detection,” said Diana O’Brien, Guyana’s assistant director of public prosecutions, explaining that often, by the time they can act on intelligence, traffickers have moved their victims.
    Women victims were forced into prostitution in remote locations
    Meanwhile, bosses at a factory in Saint Vincent and the Grenadines stripped Asian trafficking victims of their passports and forced them into total dependence, taking all their money and means of transport from them.
    “To all intents and purposes, you enslave the person,” Mr Morris said.
    ‘Such a widespread crime’
    Traffickers target vulnerable people seeking to cross borders for work or a better life, or even moving from a poorer to a richer region in their own countries.
    Mr Morris explained that this often makes it harder to prosecute the perpetrators. “Some people don’t acknowledge they are being exploited,” he said, so they can continue to earn cash or stay in their new country.
    Others still are intimidated into lying to investigators, complicating prosecution further.
    Officers confiscated fake and real travel documents from those arrested
    NGOs and social services were on hand to give support to the rescued and to ask them about their experiences to further the investigation.
    “We don’t just leave them be,” Mr Morris said. “[Victims] get the proper social support they need.”
    Local authorities will decide whether to care for trafficking victims in dedicated facilities, release them or send them home.
    “It all depends on the particular person’s circumstances,” Mr Morris said. “And often on the country’s resources.”(Quote)

    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?

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  • Was a racial animus at play in the Wickham case as well as control of the levers of power. Was a racial animus at play in the Cosby case in the Philly suburbs? What is clear in the Cosby matter is that an agreement between defence counsel and the prosecution, even if not reduced to writing, is sacrosanct. When a new District attorney seized the levers of power none of that mattered. Also, the deposition was taken and sealed for trial of a civil matter which never went to trial. Hopefully the levers of power that facilitated the unsealing or the racial animus at play will be subjected to further examination.

    Like

  • It would seem to me that this case is ripe for relief and the next administration should vacate the judgement and remove the ‘conviction’ from the records, to preserve the character of Mr Wickham and correct an obvious wrong.Further,a chair in linguistics should be established in Wickham’s honour at UWI and the Cave Hill Campus should be renamed the Clennell Wickham Campus abbreviated Wickham Campus

    Like

  • Cosby paid the female 3.8 million in settlement so the case could be sealed, you do not pay that amount of money in settlement unless you are guilty as hell of something and trying to cover it up to avoid a trial..

    ac yardfowl…..ya should be more worried about the international agencies that will be contacted to monitor any voting irregularities and fraud in the election that is being reported yall are trying to tief, ya should be worried about who can go to jail for that..

    what Cosby what, he is 80 years old, wearing a GPS monitor, laying in his mansion, he does not even register on the scale of things to care about.

    Like

  • Recall the St Kitts election of 2015 and the debacle of the late arriving airplane from the USA bearings voters, throwing the final count in jeopardy for the then incumbent administration of Dr Denzil Douglas. Are we likely to see a similar influx of Dems and Bees from the Big Apple coming in to do their duty.Beware the NY unregistered.

    Like

  • 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?

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  • @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?

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  • @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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