“We have, so far, over a period of four and a half years, attended the Magistrates Court for the preliminary trial a total of 21 times. It is impossible to offer a guess as to when this case will exit the Magistrates Court to the High Court, and how many more years it will spend there.”
by Trevor Kent
Kent Construction Ltd.
In The Nation on Friday May 25 was an article DPP: Stop hiding white collar crime, in which Director of Public Prosecutions, Charles Leacock, reportedly lamented the low level of reporting by business of what is known as “white collar crime”. His take on this situation was that businesses, especially, it seems, commercial banks, have been afraid of bad publicity and thus prefer to cover up malfeasance within their operations. He urges that this practice must stop, saying, as reported in the newspaper, that “the low level of prosecutions and investigations [is] symptomatic of the fact that there is also a low level of reporting”.
I have to admit to being surprised by these reported comments, based on my Company’s experiences with reporting substantial white collar thefts by on of our employees, carried out systematically over almost seven years. After assisting with a very long, drawn out Police Fraud Squad investigation, we were informed by letter that the DPP had directed that only a fraction of the thefts for which we provide hard evidence should be investigated, to save police time. How does that square with the stated fact of “a low level of investigations”?
Then, we have, so far, over a period of four and a half years, attended the Magistrates Court for the preliminary trial a total of 21 times. It is impossible to offer a guess as to when this case will exit the Magistrates Court to the High Court, and how many more years it will spend there.
I would thus submit that the reason companies elect not to report similar crimes is that they do not with to face the frustration of dealing with the slow Police investigation requiring numerous hand-written statements etc. followed by hundreds of hours of wasted employee time, sitting at a Magistrate’s court that often starts up to one and a half hours late, and then accomplishes very little before adjourning for the day.
The whole process then has to be repeated at the High Court, in front of Judge and Jury.
By the time a matter has gone through the Magistrates Court, and the High Court, many years will have elapsed, witnesses may have retired or died, and companies have lost many thousands of dollars in employee time, in addition to the original loss. Even if the accused is convicted, sentences are often little more than a slap on the wrist, as pleas of “first time offender” (although there may be numerous episodes relating to the same trial) are accepted by the courts. Companies thus decide, as in one case I am aware of where the owners simply sold the company and relocated overseas, to swallow the loss, leaving the perpetrator to continue stealing at another company, as often happens.
The legal trial system in Barbados is seriously time-flawed, if not broken, and in fact some of the laws are flawed also. In our case, the bank, after cashing over 300 “third-party” company cheques during the stated period, without once questioning the legitimacy of these transactions, either with the presenter or with the Company itself, was able to hide behind the Banking Act that apparently does not require ID and authorization from the payee to whom the cheque was signed in good faith by a Company director. Amazing really, when one considers that the local Post Office requires such confirmation before delivering mail to a person claiming to represent someone else. The bank has refused to engage with us at any level (despite firm written promises at the highest level) and our expert legal advice is that, whilst we are not without precedent in seeking redress through the courts, the process could well take six or seven years, and even longer on appeal… not to mention hundreds of thousands of dollars in legal fees.
Over the past four years, we have written letters to Acting Chief Justice Mr. Sherman Moore, the Police Complaints Commission, the Chief Marshall’s Office and copied repeatedly to the DPP, lamenting the delays and the fact that although we obtained a Civil Judgment in the High Court against the plaintiff [defendant? – ed] for a substantial sum, far in excess of the amount she is charged with stealing in the lower court, we have been frustrated at every turn and have so far not collected a single cent against this judgment after almost four years of dealing with the Court Marshall’s office.
Companies will not set up business in a jurisdiction where they cannot get redress through the courts in a timely manner if they believe themselves wronged, or have to spend heavily to defend themselves against frivolous claims from entities with insufficient substance to pay damages or costs if they lose the action they instigate. Companies committed to operating here find it infinitely preferable to swallow their pride and their losses and pass the miscreant onto the next unfortunate business to fall victim to their dishonestly.
I regret to inform the DPP that unless drastic changes are made in the manner and speed in which these cases are handled, the “low level of reporting” he laments is destined to continue and Barbados’ reputation as a law-abiding society will continue to suffer. As the old legal maxim says: “Justice delayed is justice denied!”
Update June 24, 2012: A slightly different version of this article can be found in the Barbados Advocate here.
Editor’s note: BFP corrected some spelling errors, changed the formatting and added the main title, but otherwise this piece is published as received.