THE OLD SCHOOL TIE

Worldwide, alumni have lifelong affinities to alma maters.  This affinity can be overdone especially in small countries where “old boy’s networks” are formed based on what’s euphemistically called “the old school tie”.

In Jamaica, Old Boys networks are developed from high school which makes the bond even tighter than elsewhere whose old school ties are knotted in college.  Probably Jamaica’s strongest old boys’ network is the K.C. Old Boys Association (KCOBA) or K.C. Old Boys (KCOBs) generally.  KCOBs never lose their fierce loyalty to the school; greet each other “Fortis”; and support each other through thick and thin.

The old school tie can be dangerous and works in insidious ways within society.  Many KCOBs with employment choices between a fellow “Fortis” and any other school’s graduate automatically employ “Fortis”.  The KCOBA appears to work like a secret society whose members make secret pledges; greet each other (well) using coded salutations; and unite to ensure colleagues’ success. 

Nobody successfully defies the KCOBA as Rev Vivian Cohen discovered in the 1990s after accepting the post of K.C. Headmaster and trying to instil discipline generally including in the school’s sports policy.  He became public enemy number one.  Knives were sharpened.  A series of ludicrous but embarrassing charges were filed against him.  Some of these charges had to be withdrawn at the outset despite involving accusations of fraud.  This could’ve (but didn’t) explode the illusion of sincerity his accusers had craved.

After guilty verdicts at very marsupial looking “hearings”, the Board summarily fired him.  Rev Cohen’s experiences, despite a military background, ill-equipped him to respond in kind to the more outlandish charges and failed to prepare him for “disciplinary hearings” where the accused often appeared guilty until proven innocent.  As a trusting soul, he was slow to recognize the many Brutus’ close to him.     

He appealed under the Education Act whereby a panel appointed by the Education Ministry allowed the appeal for procedural error and re-instated him.  The Board countered with a Judicial Review application which was eventually settled out of court on terms favourable to Rev Cohen.

Among the more bizarre charges was that Rev Cohen misappropriated a £5,000 gift to the school.  He vigorously and persistently denied ever receiving the gift.  Eventually, the cheque was discovered lodged by the KCOBA to a KCOBA building account and used to assist the school (see Wallace v Cohen; Civil Appeal 71 of 2006. Pages 25-26 of the Appeal Court’s Judgment). So, the settlement included a term permitting Rev Cohen to publish a Statement regarding his innocence of that charge.

An incomplete version of his statement was published.  That day, A KCOB who had helped draft the original charges but seemed unaware of the settlement, initiated a radio interview; discussed Rev Cohen and the settlement; and reiterated Rev Cohen had failed to account for the £5,000 gift.  Rev Cohen sued for libel.  The defendant claimed fair comment.

The claim was tried before a special jury with peculiar consequences.  After 3 weeks of trial and because jury members had imminent travelling commitments, the court sat late into a Friday evening in a successful attempt to complete the trial.  At 9.00 p.m., the jury’s Foreman announced the words used were not defamatory.  Rev Cohen says jurors appeared surprised and became visibly restless.  After a short exchange with the Judge, the Foreman formally consulted with other jurors; announced he’d erred; and asked to replace his initial announcement with the real verdict that the words were “defamatory to Rev Cohen”.  Rev Cohen was awarded $8 million damages.

The Appeal Court focussed on the exchange between Judge and Foreman.  After the “first verdict”, the Judge was consulting with Counsel as to how to proceed when the Foreman interrupted her as follows:

“FOREMAN:        M’Lady, may I just make a comment here. In association                                    with my fellow jurors, there’s a statement I want to make.

HER LADYSHIP:No, this is not appropriate, but I want to be sure I                                              understand your answers to the question and I’m going to                                 repeat that in terms of the words. The meanings which you                                 say that the words used by Mr. Wallace on the Public Eye                                   Broadcast, in terms of those meanings, is it your answer                                 that all of you say that the meanings are not defamatory of                                   the claimant?

FOREMAN:          No. Well, we have no that THE WORDS                                                  THEMSELVES WERE NOT DEFAMATORY (my                                          emphasis)

HER LADYSHIP:That’s what I am asking you.

FOREMAN:          Okay.

HER LADYSHIP:Is there something defamatory in the words, the meaning                                  of the words? That is the question.  Is the meaning of the                                  words used by the First Defendant defamatory?

FOREMAN:          IN THEMSELVES NO, BUT … (my emphasis)

HER LADYSHIP:Well, we don’t go on if the meanings are not defamatory.

FOREMAN:          I THINK MY FELLOW JURORS HAVE                                                       MISUNDERSTOOD THE QUESTION. (my emphasis)

HER LADYSHIP:It’s very important we understand what we are doing here.                               The first questions, what are the meanings of the words?

FOREMAN:          Okay.

HER LADYSHIP:Do you need some more time to think about the matter or                                 you need me to give you any further assistance?

FOREMAN:          Yes, Your Honour, I think we need further guidance on it.                                 Though we have come to a consensus on all others, there                                   are matters how can I explain? Can I say this….

MRS. BENKA-

COKER:               May be, m’lady, whatever it is they need guidance on they                                   can indicate to you rather than……

My reading of the transcript is that the Foreman, apparently under pressure from jury members for having misspoken, interrupted the Judge’s consultations with Counsel and pleaded with the Judge that what he had announced was NOT IN FACT THE JURY’S VERDICT.  This is an entirely different scenario from giving a verdict then changing one’s mind. Furthermore the Judge didn’t prompt the jury but was led by the Foreman’s assertion of misunderstanding and request for further consultation.

After further consultation, the jury returned and the Foreman said:

“Your Honour, IT WAS JUST A MISUNDERSTANDING (my emphasis) as to the meaning of words and whether it was, in fact, the words themselves were defamatory or were they defamatory to the claimant.”

If you return to the earlier extract you’ll see that what the Foreman kept saying which was interpreted as a verdict was that “the words” were not defamatory if read alone.  But, in the context of being said of the Claimant then they were “defamatory to the Claimant”.  This is where most of us would breathe a sigh of relief, thank our lucky stars that injustice was avoided by a diligent, persistent and sincere jury Foreman (despite the Judge telling him his further interjections were “not appropriate”) and move on.

However, in a judgment very critical of the Judge’s approach, the Appeal Court set about deciding how many verdicts had been announced and whether they were permissible. 

 The Appeal Court, as usual, relied on decisions of English cases from as far back as 1960 to hold the jury to its foreman’s original misspeak.  We keep doing this.  We keep imagining English and Jamaican juries are one and the same.  We keep following these 50 year old English cases on civil procedure as gospel  despite England’s Civil Procedure Rules being re-invented in 1999 and (guess what?) copied by us in 2003. The new Rules mandate “justice” must override all else no matter what general principle had been laid down in “precedent”. 

The Appeal Court did draw upon a 2001 English decision named Igwemma v Chief Constable of Greater Manchester Police.  Kennedy LJ, in that case, said: “In my judgment it’s important not to lose sight of what, in any jury trial, criminal or civil, the court is attempting to achieve. The object is to do justice between the parties” then gave three circumstances in which a “second verdict” was acceptable. 

·        the court must consider the time that passed between the verdicts (very little time in Rev Cohen’s matter);

·        acceptable if jury itself says there’s a misunderstanding (Cohen’s jury said this);

·        if it can be seen the jury was not “persuaded” by anything it oughtn’t to have heard (Rev Cohen’s jury’s interventions were all voluntary). 

So, even if the Foreman’s subsequent explanation is taken as a “second verdict”, it’s seems eminently permissible by law.  Yet the Appeal Court insisted on relying on the fact that the “first verdict” was said three times as a basis for rejecting the “second verdict”.  The court found that the transcript didn’t show misunderstanding by the Jury.  But the Foreman, unsolicited, said there was a misunderstanding.

So it was that Rev Cohen found himself separated from his judgment and the legal absolution it offered.  Our highest local-based Court has decided that confused laymen can embed injustice in concrete by misspeaking no matter how swiftly they subsequently try to clear up their misunderstanding.

Normally, Rev Cohen could take his case to a third tier appeal court.  But our highest court, the Privy Council, comes with associated costs well out of the reach of a simple, honourable man like Vivian Cohen whose life has been one of service without undue attention to reward. 

 Vivian Cohen is now a broken man.  The ramrod bearing of his youth and military training is gone.  He speaks slowly and with a slur.  He can’t understand how what he sees as a dispute between Judges ended up taking away the legal vindication he received from a jury of his peers.  Why would a Judge be wrong to listen to the persistent plea of a plaintive jury Foreman; accept his voluntary explanation of misunderstanding; and try to avoid forcing upon a jury a verdict it never intended? 

The Appeal Court didn’t experience 3 weeks of trial ending at 9.00 p.m. on the 15th day.  It didn’t see the tired jury nor hear the confused Foreman. It only read dispassionate verbatim transcripts and self-serving affidavits.  The Judiciary was Rev Cohen’s last hope but not even that bastion of truth and fairness was able to thwart the old school tie.

                   “As Tarzan from tree to tree swung                                                         his loincloth fell from ‘round his thigh.                                                            But he made no flurry.                                                                                      Why should be worry?                                                                                       He was wearing the old school tie!

Peace and Love

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