Marley, secrets and death row

The following is the conclusion of our look at the 100-year history of Jamaica's oldest law firm, Livingston, Alexander and Levy.

Ken Jones, Contributor

Recently, the Official Secrets Act has been attracting increased interest since the prime minister has stated Government's intention to repeal it. The Act, passed by the United Kingdom Parliament 100 years ago, is not on the statute books of Jamaica, but nevertheless applies because Jamaica was once a British colony.

Livingston, Alexander and Levy was prominently involved in the question of official secrets when in 1976, during a state of emergency, a case was brought against Allan Isaacs, then minister of mining, and his permanent secretary, Horace Hardy-Henry. It was charged that between November and December of 1975 they conspired with persons unknown to communicate with other persons concerning a Cabinet submission, contrary to the Official Secrets Act.

The matter had come to public notice in a broadcast by the then leader of the opposition who had referred to the contents of the Cabinet submission and which was subsequently published in the Daily Gleaner. A partner of the firm was retained to defend the minister.

At the trial, the document in question was retrieved from the newspaper editor and was said by two prosecution experts to be a photocopy made directly from the stencilled copy which the permanent secretary had been given by the minister. The stencilled copy had stamped at the top and bottom in large red letters the word 'Secret'. The photocopy did not have these on it.

The prosecution's expert put forward a theory that the word 'Secret' had been masked by putting a slip of paper over it before the copying took place. However, under cross-examination he admitted that when such a procedure was carried out, it would show shadow lines of the masking; and in this case there was none. The resident magistrate, after hearing submissions, acquitted Allan Isaacs, but convicted the permanent secretary, primarily because he was unable to account for the document which the minister had given him. It later transpired that he had put it in his briefcase which was locked away. He appealed and the conviction was quashed.

In the aftermath, the partner who defended Isaacs was also a subscriber to the English Guardian Weekly. Sometime after the case, that newspaper reported incorrectly that the minister had been convicted of leaking confidential Cabinet papers. An action was filed in the Queen's Bench Division in England and the paper was obliged to tender an apology and pay compensation of £5,000.

The Constitution

In 1974 the Government established a new court - the Gun Court - as part of its effort to subdue the escalation of crimes by firearms. The Gun Court Act provided that the court would sit in three different divisions - the Circuit Court, a Resident Magistrate's Court and a Full Court, which constituted all three as Resident Magistrates. It also introduced a new form of punishment described as 'indefinite detention' under which the convicted person would be imprisoned pending a decision of the governor general acting on the advice of a review board.

The constitutionality of the Gun Court was challenged by the Bar Association; and a partner of Livingston Alexander and Levy appeared for the case in both the Court of Appeal and the Judicial Committee of the Privy Council. The case was won and the findings are historic.

The Privy Council held that resident magistrates exercising powers similar to that of judges of the Supreme Court was unconstitutional because the legislature could not vest on a resident magistrate the powers of the Supreme Court judges; that the Constitution did not permit Parliament to create a new court comprised of members of the lower judiciary and to confer on them a jurisdiction which formed part of the existing jurisdiction of the Supreme Court. Accordingly, the provisions of the Gun Court Act 1974, from insofar as they provided for the establishment of a Full Court Division of the Gun Court, conflicted with chapter seven of the Constitution and was therefore void.

Separation of powers

From time to time the question of the separation of powers has been raised in Parliament. This matter was also addressed by the Privy Council when it dealt with the Gun Court case. The Judicial Committee held that the principle of separation of powers was implicit in the Constitution; and that Parliament had no power to transfer from the judiciary to the review board the power to determine the severity of punishment to be inflicted on an individual. Therefore, the section in the Gun Court Act creating a review board was contrary to the Constitution and void. Also, the sentences that were passed on the defendants were unlawful. The legislature cannot usurp the functions of the judiciary as was attempted by the Gun Court Act.

Appeals to Privy Council

Over the years there has been a debate about whether appeals to the Judicial Committee of the Privy Council should be abolished and replaced by local courts. Thirteen Caribbean countries, including Jamaica, have signed treaties for the establishment of a Caribbean Court of Justice to replace the judicial Committee of the Privy Council by promulgation of three statutes.

The constitutionality of these statutes was challenged by the Independent Jamaica Council for Human Rights, then Leader of the Opposition Edward Seaga, the Jamaican Bar Association and Jamaicans for Justice. Seaga was represented by Livingston, Alexander and Levy; and it was contended that the statutes did not conform to the provisions of the Constitution for enactment of laws. It was also conflicting with chapter seven of the Constitution which deals with the tenure of judges of the Supreme Court and the Court of Appeal, the appointment and removal of judges and the right of appeal from the Court of Appeal to her Majesty in Council.

The Full Court and the Court of Appeal in Jamaica dismissed the application and an appeal was made to the Judicial Committee of the Privy Council. The Privy Council allowed the appeals and ruled that all three statutes were unconstitutional and had to be declared void. It is as a consequence of this decision that the Privy Council remains the final Court for Jamaica and that the appeals from Jamaica and not going to the Caribbean Court of Justice, despite the fact that Jamaica has signed the treaty and makes financial contributions to it.

Libel

For a long time, libel cases in Jamaica were usually heard by a judge alone. However, in 1992 a new practice arose in the case of Leymon Strachan vs The Gleaner Company, which was heard by a jury. The Gleaner was sued for libel and being unable to locate the police officer involved in the matter, could not file a defence. A default judgement was entered and the matter set down for assessment of damages.

Livingston, Alexander and Levy was briefed for the assessment and the jury returned an award of $23 million, a sum about 20 times higher than any previous award. The trial judge ordered entry of final judgement in favour of the plaintiff. However, after the case was published, The Gleaner found the policeman and the law firm took the view that as the initial judgement was a default judgement and not a judgement on merits, it could be set aside despite the jury's assessment.

The matter came before Justice Walker who, after hearing submissions, agreed that the judgement could be set aside; and he allowed The Gleaner to file its defence. The plaintiff did not appeal this decision but instead sought to have Justice Smith set aside Justice Walker's ruling. Justice Smith declined on the basis that he had no jurisdiction and the plaintiff then appealed against his order.

Livingston Alexander and Levy again represented The Gleaner at the Court of Appeal hearing; and when this was won the plaintiff obtained leave to appeal to the Privy Council. In 2005, Their Lordships dismissed the appeal and upheld the previous rulings. As no further steps have been taken, the matter must be deemed closed. This case is of fundamental importance to civil procedure and the jurisdiction of judges of the Supreme Court.

Pratt and Morgan

Delay in the execution of convicted murderers has been a highly controversial subject in Jamaica, particularly since the often-cited case of Pratt and Morgan vs the Attorney General. In this matter, the Privy Council in 1993 ruled that it was wrong for the State to keep a convict on murder row for a considerable length of time. However, the Pratt and Morgan application was not the first of its kind for Jamaica. In 1982, when Livingston Alexander and Levy represented Noel Riley in a similar case before the Judicial Committee, the appeal was rejected by majority vote, but with a powerful dissenting judgement by Lords Scarman and Brightman.

In the earlier case, five persons sentenced to death for murder had been awaiting execution for three years while Parliament debated whether to implement the death penalty. Between 1975 and 1976 they made various applications for a declaration that the prolonged delay violated their rights guaranteed by the Constitution.

Later when Pratt and Morgan brought the same issue to the Privy Council, the Riley case was given careful analysis and Their Lordships overruled the previous majority decision and held that to execute these men after holding them for so long in an agony of suspense was inhuman punishment within the meaning of Section 17 (i) of the Constitution. The appeal was allowed and this, though delayed, vindicated the stand that Livingston Alexander and Levy had taken a decade before in the Riley case.

Pensions

In 2009 The Privy Council agreed with the arguments of Livingston Alexander and Levy in the legal debate to determine entitlement to funds and surpluses accruing in a pension scheme. The decision is of paramount importance as it renders stability to pension schemes by establishing that it is the Trust Deed and Rules that must apply in deciding the beneficiaries of the fund.

The question arose in two cases involving former employees and management of Gillette Caribbean and Air Jamaica. In both, the only two pension schemes that have gone to the Judicial Committee of the Privy Council, Livingston Alexander and Levy represented the appellants.

Bob Marley estate

Bob Marley died intestate, leaving no will providing for beneficiaries including his children. It was understood that Rastafarians do not make wills. Administrators had to be appointed for the estate. They were Mutual Security Trust Company Ltd, George Desnoes and Rita Marley.

Some time after the appointment of the administrators, it was ascertained that Rita Marley was not qualified and an application had to be made to the court dealing with that. It was at this stage that the administrator Mutual Security Trust Company retained Livingston, Alexander and Levy to make the application concerning the disqualification. Thereafter, there were several cases which the firm had to deal with; one being to determine who the beneficiaries were. Bob had left a wife, Rita, and four children. However, there were several other women with children in different parts of the globe, who all made claims on the estate. Fortunately for them, the law in Jamaica had been changed to provide that children born out of wedlock are included as beneficiaries in the administration of an intestate estate.

Several other persons made claims. A man who called himself John was very persistent in stating that he knew that his mother had an affair with Marley. Eventually he was requested to submit a copy of his birth certificate. He did so and it clearly showed that he was older than Bob Marley. Another gentleman called Danny Simms claimed that he had a contract which entitled him to royalties and payment for works produced by Bob. He said he had discovered that Marley had produced songs and lyrics and had deprived him of his entitlement by registering them in the names of other persons. He brought an action in New York against the estate.

In investigating the matter, it turned out that there was a period when the songs Marley wrote were not put in his name. A classical example is the famous No woman, No cry. The record label purports the song to be written by Vincent Ford who, it was later learnt, was a disabled person from Trench Town. During the hearing in New York, it was shown that Simms was apparently aware of this alleged irregularity long before Marley's death and therefore his claim had been statute barred.

In selling the assets of the estate some of the persons whose names Marley had used in registering songs had to be paid. Vincent Ford received some compensation to assign the copyright in the song so that it could be sold. After many years, there are still some dissatisfied beneficiaries in the United States, endeavouring to reopen aspects of the estate and have gone to the Courts to get access to documents.

Foundation

After a hundred years there may be few, if any more, great landmarks to be established along the legal trail traversed by Livingston Alexander and Levy. However, as the firm begins the next phase of the ongoing journey, it has decided to incorporate and finance the Livingston Alexander and Levy Foundation that will be working to benefit the community for the next 100 years. Among other good deeds it will make donations to worthwhile charities. The firm will make annual grants to the Foundation; and as the fund grows it is expected that more and more people and organizations will benefit from the generous gesture.

Note:

A number of readers have questioned reference to the 'Panama Olympics' in last week's article on the centenary of the law firm. They say the event was the 'Pan American Games' and not 'Olympics'. They have a point, but it is a fact that in 1938 the Games were widely referred to as the Panama Olympic Games. Newspaper and radio reports described it as such and the Panamanians regarded it so.

It should be noted that the 1938 competition was organized and sponsored by the Panama Olympic Association (POC), which had been formed in 1934 and approved by the international authorities. The basic objective of the POC was said to be "the observance of the Olympic Charter, dissemination of the Olympic basic principles in sports activities and physical education and sports programs in schools and universities as well as support to the creation of institutions aimed at promoting the Olympic ideals".