Police, court, DPP abuse of witnesses and victims – one man’s horrific experience

“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.

Charles Leacock, Barbados Director of Public Prosecutions

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.

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31 Comments

Filed under Barbados, Business, Crime & Law, Police

31 responses to “Police, court, DPP abuse of witnesses and victims – one man’s horrific experience

  1. robert ross

    @ BFP

    Four and a half years does seem incredibly long. Will Mr Kent be kind enough to say where this case is now – eg whether there has yet been pre-trial disclosure – and whatever other features explain the 21 adjournments. As it stands we are very close to ‘abuse of process’ which would be in whose interests? We really do need more informaion on this one.

    Odd that Mr Kent has not written to the present Chief Justice who is on record as saying he wishes to retrench delays and who has invited those with serious complaints to write to him.

    Mr Kent clearly knows something about the law and is very articulate so the further information should not be a problem to him. “Justice delayed is justice denied” has a very familiar ring.

  2. C Brian Barnes

    The content of the foregoing surely does not give the read a warm feeling that we can expect ANY quick legal procedures with the CLICO and BALICO matters. Further it makes one shudder if the Barrack matter is considered bearing in mind an unsettled judgement stands against the Government. Barbados appears to be in need of vigilante justice as the legal system seems broken and unable to perform

  3. Wily Coyote

    Barbados on a whole has been slowly slipping into Anarchy, however in recent years the rate has increased exponentially. The fundamental infrastructure required in establishing a functioning country has been deteriorating since independence and is now reaching a point of no return. Basics such as Law and Order are fundamental and when they break down Anarchy is inevitable. Syria, Libya, Egypt are a few names that come to mind, can BARBADOS BE FAR BEHIND.

    As Mr. Kent states “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”.

    Recent articles in the two Barbados newspapers, however limited and presented political correctly as not to rile local authorities, have stated several companies have left Barbados so far this year. When local business’s have no confidence in the countries infrastructure can you expect off shore companies to come and invest. Even with Barbados LOW/NO tax incentives the economic benefits enjoyed in the past are quickly evaporating. As the saying goes “the entrepreneurs are leaving the sinking ship” for higher ground.

    If Barbados’s two political parties do not get their act together immediately correct the misfeasance that is now ingrained in the countries infrastructure then Barbados is GOING DOWN THE DRAIN.

  4. robert ross

    “The Bank has refused to engage with us at any level”

    I’m not sure what this means; but whatever it means, I see no reason why the Bank to which Mr Kent refers should not be named in all our interests.

    Perhaps Mr Kent would also give the full name of the civil judgment to which he refers so that the lawyers on BFP might express an informed opinion.

  5. Jimmy the one

    Unfortunately Mr. Kent’s experience is the norm in our courts where criminal cases regularly take 5 and 10 years to fizzle out.

    Witness? Me? I saw nothin officer! Honest. I was looking the other way.

    I’m no fool. Say you saw it and spend 30 and 40 days in court where lawyers and judges don’t show up if they have a hangnail? Nope. Not me. I saw nothin.

  6. robert ross

    Dear Jimmy the One

    If criminal cases take 5-10 years on a regular basis you will be able to cite examples. Give us, say, five to follow up so we can explore all the fizzling.

  7. countryview

    robert ross, forget questioning J T O….there are more than enough lawyers on BFP who can better substantiate J T O’s claims…they are a fact.

  8. robert ross

    @ Countryview

    Well let the lawyers do it then. See so often in all this we have unsubstantiated generalisations – which in the end amount to brainwashing. From a clinical perspective that won’t do and, if you’re a lawyer yourself, you will understand what I am saying.

  9. robert ross

    See if you generalise you don’t find the source of the problem and if you don’t do that how do you rectify it or even begin to see the problem in its broader perspective?

    So forgive me, it won’t do, Countryview, to say (as you’ve done) “Don’t ask questions. He is right. The lawyers know all this”. Where does that take us? It doesn’t add to the fund of human knowledge and doesn’t begin to confront the question of seeking solutions.

  10. countryview

    ross, the applicable point of reality here is that generally speaking “CRIME PAYS AND VERY WELL INDEED”. In our Barbados all one needs to do as a successful criminal is “get possession” of whatever it is one covets and leave ALL the work for those from whom it was taken…they have the uphill battle while the thief hides behind the law, retards the legal process and generally ensures it takes 20 or 30 years before the Court.

  11. robert ross

    @ Countr

    I have five…do I hear 10?…Yes, over there….do I hear 20? 20? Yes, it’s with you Sir? 20. Do I hear 30…….? 30?…Does it stop at 20? Do I hear 30? Yes, thankyou..on my right…..30…now do I hear 40?

  12. robert ross

    But Country…..if you are really saying the system is loaded in favour of the accused…wonderful…he’s inoocent till proven guilty…….but try telling that to a certain magistrate in District A….you would love him.

  13. robert ross

    @ BFP

    Your unbroken record continues.

    I notice that Mr Kent’s letter to the Advocate has now been published in the Nation (25th June) and I can only say that I am very surprised it has not yet appeared on BU – though it has been commented upon by one person in passing.

    It is disappointing, therefore, that though Mr Kent seems to have sought maximum coverage, and has been successful in this, he has not thought it necessary to elaborate his accusations about the system – which may indeed be fair ones – in this forum. I cannot believe that he is not reading what has been written here if, indeed, the letter was “received” by BFP from Mr Kent. It is still early, I suppose. But if he does not, I am bound to conclude that he wishes to escape scrutiny – which is a pity since the sense of his communication certainly needs serious discussion if accurate.

  14. Trevor Kent

    For the record let me state that I did not send my letter to BFP which took it, I assume, directly from the SUNDAY ADVOVATE without reference to me or first obtaining my permission to print it. They corrected one spelling mistake made in transcripton by that paper.
    The error re plaintiff/defendant was mine.
    I have written THE NATION compaining about how the letter was edited in yesterdays paper and requested an apology as it makes little sense in some areas and that reflects badly on me. I also did not submit it as Guest Column.

    I only became aware of this posting when it was forwarded to me today although I had received a message from someone on Sunday congratulatng me on the letter.
    To answer some of the comments:
    The Bank in question is First Caribbean, Oistins Branch I ommitted to name them only because I did not think it would be printed…see editing in Nation version yesterday, for example. I do not have much faith in Journalistic Intestinal Fortitude in our Country…..a result of advertising revenue and other pressures I assume.

    I had been in communication by letter with Bank Chairman Mr. Michael Mansour who stated in writing that ” I have forwarded your correspondence to Mr Mark Young, Managing Director, Corporate Banking who will investigate and rvert to you with a suitable date to discuss your concerns”. That was in Februar last year and, despite written and telephoned-message reminders I am still waiting to hear from Mr Young. Talk about being dropped like a hot potato. Not really surprising given our legal system.

    I had stated my intention to write to the new Chief Justice in a recent letter to the head of the Financial Investigation Unit in March this year, but was forstalled by an offer of a meeting with the Chief Prosecutor, who promisd to expedite matters. The Magistrate in the Oistins court is, or was, however, acting in the Supreme Court, so the matter still languishes as the old cases aparently await the return of the incumbent.

    The Judgement was for $752,557.78 plus interest at %1.5 per month issued from May 26th, 2000, plus costs of $5116.25. ….someone figure that out…THe judgement was obtained on 10th day of July 2008 in suit No 866 of 2008, Kent Cnstruction Ltd Vs Mararet Patricia Maynard and, as previously stated, we have received not one cent from the court Marshalls office despite them having sold a car belonging to the defendant on July 27th 2011 and other posessions.

  15. Trevor Kent

    Errror May26th 2000 above last paragraph should have been May 26th 2008…Regret error

  16. robert ross

    @ Trevor Kent

    Thankyou very, very much for this. It is a sad tale I agree. If you don’t mind, I have one or two questions but I’ll leave them for now to allow people to digest and comment before I have my ‘two-penneth’. I’m glad you have raised it all..

    Two things though: the letter in the Nation reads well I think and the idea of the ‘Guest Column’ is to be able to print good long letters without encouraging everyone to write at length. Been there myself.

  17. WSD

    @ Trevor Kent. People send stuff to free press all the time that were taken from someplace else for discussion. Free press should clarify who sent this to them. They say they “received” it. When they take something from the paper themselves they always say so.

    Do you want them to take it down? You should tell them if so they probably would take it down.

  18. Trevor Kent

    Happy to have it ventilated. Someone assumed I had sent it which is why I chose to clarify that I had not. Am not very familiar with BFP methods

  19. robert ross

    @ Trevor Kent

    Yes, I made the assumption since the post after mentioning your letter said it was “published as received”. I naturally (I think) assumed it was sent by you – though note my ‘if’ – and I think BFP should have made it clear that it was sent by someone else if it was. I am fast coming to the conclusion that I am not ‘familiar’ with their methods either – or, indeed, any of the ‘methods’ of the so-called ‘free underground presses’

  20. robert ross

    @ Trevor Kent

    Is it right to assume that the magistrate elevated to an ‘acting’ capacity in the High Court has been the magistrate presiding over this case throughout?

    It is unfortunate that someone was not actually put in place before she was elevated.

    If she is the same person, do you think she has been doing all she can to ‘push’ the case forward? I am thinking of the 21 adjournments and where this case is now – something which you did not address. Is it the case that the police have said, in effect, ‘we are not ready’ repeatedly?

    On the cheque issue. Is it the case that the accused is said to have fraudulently endorsed cheques paid by Kent to another to herself? I had some difficulty understanding the scenario. My understanding is that banking practice is not to accept endorsed cheques; a fortiori, of course, if they are crossed cheques – and this is why I am asking about the scenario.

  21. Trevor Kent

    The answer is yes…same person throughout and case must now awiait her return. At least half of delays caused because police “inictable file” not received by prosecutor but magistrate sick, magistrate no-show, lawyer no-show, accused sick, etc etc have all played part in this scenario. To be fair Magistrate also seems frustrated by delays. So far Magistrare has insisted on proceeding without Lawyer present twice and heard 4 witnesses over two court days before adjournments.Last date Mar 12, 2012 adjoured to April 17 th but no magistrate on that date. We are sometimes advised not to attend for various reasons when we enquire about new dates but insist on being there so that the case does not get thrown out in our absence as sometimes happens.

    On question of cheques; Cheque written in normal fashion by accused as part of “normal” duties with now-fraudelent already- paid invoices from well-known small-supplier or contractor as back-up. In many cases old invoces doctered to look current. Cheque signed on short notice without questioning fraudelent invoice by Director as pick-up by supplier/contractor supposedly imminent and payee well known to Director. Accused endorses back of cheque to herself, forges signature of payee who is unknown to bank and from whom banking act supposedly requires no ID and presnts cheque for cash. Bank disburses our funds without a single question asked of company over 6 1/2 years and well over 300 cheques. Bank finds no evidence of collusion with tellers involved. 133 actual cheques endorsed in like manner totaling $452,625.63 handed to police. Decision taken to use only 31 of these cheques totaling $141,755.54 for which she is charged. Bank claims it is under no legal obligation to demand ID before cashing third party cheques.

  22. robert ross

    @ Trevor Kent

    Thankyou very much. I will write again tomorrow. But two questions:

    1. Is the accused on remand and

    2. why won’t the Marshall’s Office release the realised value of the ‘spoils’?

  23. BFP

    Hello Trevor,

    BFP received your piece in an anonymous email the day before it was published in the Barbados Advocate. We didn’t know who sent it to us, but it would seem that * a friend * at the Advocate may have if you didn’t.

    If we take something from the newspapers, we always attribute it properly.

    … Unlike the newspapers who steal our stories, ideas and even our words without attribution.

  24. rastaman

    @Trevor Kent:.Please enlighten us as to which Bank does not require ID before cashing a third party cheque?

  25. Anonymous42

    rastaman,
    read Trevor Kent’s post of June 26, 2010 at 7.24 pm. Full bank details are there.

  26. countryview

    rastaman, y u suh lazy, doh?

  27. robert ross

    As some BFP readers will know, in an earlier post I undertook to explore various situations which came my way to try to determine causes of delay and possible solutions in the administration of justice system.. This seems to me to be a rational way of proceeding without beginning with generalised, and dramatic, statements such as “The legal system has collapsed’ or other similar things.

    The Kent case is a mixture of the two – and from my perspective it is a very valuable piece of evidence. However, the more one actually explores it, I think one begins to see what has happened and why. Obviously, it is one man’s ‘take’ on it all, and Mr Kent, not unnaturally, has a sense of grievance. He and his company is the ‘victim’ – so why shoudn’t he? From his particular grievance – delay – he lashes out at the DPP, the banking system, the penal tariff, the Chief Marshall and so on – and draws various conclusons about the system as well as the knock-on effect for investment. In other words, he has painted a very broad canvas.

    What I propose to do is to explore some of these things in the various blogs which follow.

    THE DPP

    For now I will comment very briefly on the DPP issue. My Kent complains that the DPP took a decision to bring charges in respect of only 31 of more than 300 ‘fraudulent’ cheques and finds this mealy-mouthed in relation to his reported comments in respect of ‘white collar’ crime.

    Now I would love to ‘have a go’ at the DPP whose performance in other areas I find shocking..But in this case, all I can say is that the decision in relation to 31 cheques only is entirely normal. The amount of work for the police for 31 would be massive enough, and would involve not only examination of witnesses but also of company and bank records stretching back over six years, not least in order to make a determination of which illicit transactions to prosecute on. To investigate more than 300 would be a colossal task in itself and the knock-on effects for the trial incalculable were charges to be brought in respect of 300 alleged offences. So for myself, I find no fault in the DPP’s decision. It seems to me entirely prudent and there is nothing unusual about it in this kind of case. It follows that it does not undermine his reported comments on the failure to report ‘white collar’ crime.

  28. rastaman

    @Annonymous 42 &countryview.:
    Oops ,sorry I missed it.That is why I do not bank with FCIB.

  29. John

    Robert Ross

    Now I would love to ‘have a go’ at the DPP whose performance in other areas I find shocking..But in this case, all I can say is that the decision in relation to 31 cheques only is entirely normal. The amount of work for the police for 31 would be massive enough, and would involve not only examination of witnesses but also of company and bank records stretching back over six years, not least in order to make a determination of which illicit transactions to prosecute on. To investigate more than 300 would be a colossal task in itself and the knock-on effects for the trial incalculable were charges to be brought in respect of 300 alleged offences. So for myself, I find no fault in the DPP’s decision. It seems to me entirely prudent and there is nothing unusual about it in this kind of case. It follows that it does not undermine his reported comments on the failure to report ‘white collar’ crime.

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

    Just wondering about the 31 vs 300 offences and trying to relate it to the CLICO mess.

    If the court finds that 31 offences have been committed, or even a lesser number, is it open to Mr. Kent/his company to pursue the remaining 200 plus possible offences and so be in a position to recoup his/its loss?

    Perhaps justice will be done and the alleged perpetrator dealt with for the 31 or less offences but will it be seen to have been done if Mr. Kent/his company is not in a position to recoup his/its losses?

    If indeed there are 300 offences it would seem that the alleged perpetrator was placed in a position of trust and that trust was betrayed, an all too familiar situation in Barbados today as we have seen with CLICO.

    I understand it is not possible to get blood from a stone but a return of cents on the dollar as seems to be the thinking also with CLICO debacle seems to be unjust, even although it will probably be the reality.

    It is possible the alleged perpetrator will be jailed but so far in the CLICO debacle there seems to be no such person or persons identifiable as being likely to be thus punished for violating the position of trust.

  30. robert ross

    @ John

    The Court may, I believe, order restitution on conviction (on the 31). The obvious procedure is a civil action subsequent to the criminal case. At this moment I haven’t tracked down Kent v Maynard – a civil case decided, apparently, long before the criminal ‘trial’ (the proceedings before the magistrate at Oistins) even began (and the thrust of which is a bit of a mystery to me). but which, Mr Kent says, raises questions about the activities (or inactivity) of the Marshal’s Office.

  31. robert ross

    @ Rastaman

    You got that right – but if you’re still reading here are some thoughts on this.

    CHEQUES, BANK, ENDORSEMENT

    Let me say that from what I have discovered this Bank did not, at the relevant time, behave as others do. Eg, I am told that at one time they did not return cheques to the payer on a monthly basis unless payment was made for this service.

    On the question of failure to require ID. This is not a legal requirement. It is not the kind of thing which would be included in legislation. It is a question of Bank policy. When I was a young man, cheques could readily be endorsed – and, in principle, why not – it is a negotiable instrument which operates as conditional payment. When it is ‘met’ it is actual payment. If the cheque is ‘crossed’ in principle it must be paid into the payee’s account. In this day and age, I do not understand why anyone would wish to use ‘open’ cheques – if that is what Kent Construction did..

    I am told by my banker friends that for some years it has not been a bank’s policy to accept endorsed cheques UNLESS the person to whom the cheque is endorsed is known and trusted by the Bank – but that would only be in very exceptional circumstances, eg my wife endorses a cheque made payable to her to me BUT NOT a cheque payable by one company to another (allegedly) endorsed by the latter to a third party, and even though the third party has an account at the bank.

    I do not know what the policy of the bank concerned was at the relevant time. But if it did have such a policy then my view is that it was manifestly negligent and particularly given the frequency of the endorsements and the amount of money involved.

    Mr Kent first stated that the Bank has “refused to engage” with him. But he has subsequently said two things: (a) that in the Bank’s view there was no collusion with tellers; and (b) that the bank has said it was under no legal obligation to demand ID. So – there has clearly been engagement of some kind.

    But there is another feature. A Kent director also signed the cheques – apparently in haste – a haste which was repeated again and again. Some of the cheques were manipulated by the use of forged (old) invoices in respect of forthcoming supplies. I don’t know anyone who pays in advance like that (and assuming I’m understanding Mr Kent correctly). I also wonder why none of this was discovered when Kent’s accounts were audited – since in these kinds of case there would have been two invoices (the fake and the real) for the same service.

    It is clear that the miscreant was a very trusted employee and that might explain some of this. BUT the advice I’m getting is that there’s much more to this than has yet surfaced.