When the story of the alleged cavity search of Shanique Myrie first broke in March 2011, an important part of Miss Myrie’s account was that the Immigration officer removed her identification tag before humiliating her.
Remarkably, in October last year, another Jamaican woman told the reporter who broke the Shanique Myrie story that she was subject to degrading treatment at Grantley Adams International Airport. On that occasion it was a male police officer who reportedly took her into a room and ordered her to strip.
Again the complainant alleged that the two officers who attended her “removed their name tags before they dealt with her, in an attempt, she now believes, to prevent her from being able to report them”. The officer was also alleged to have made derogatory remarks about Jamaicans.
The allegations in both cases are directed principally at officers who play a significant role in protecting our borders.
Important as this duty is, it is also necessary to demonstrate professionalism in the discharge of the duty. For a police officer to conduct a body cavity search or attempt to do so is clearly a deviation from established practice. In the case of Miss Myrie, the manner of the search as recited by her would certainly put it into the category of sexual assault. If an officer removes his badge, it is an admission in itself of wrongdoing and a sure sign of malice.
I consider such allegations as serious enough to, among other things, warrant video surveillance of all areas where people are interrogated and the path leading to and from those points. If this type of video evidence had been available in the Shanique Myrie case, we would be in little doubt about what did or did not occur.
Having read the judgment in the case, it is obvious that the video footage from the various areas of the airport made it almost impossible for the interrogation, a search of luggage and cavity search, as alleged by Miss Myrie, to have taken place at the time she indicated in her evidence.
She had alleged that this was done prior to the cancellation of the stamp which granted her entry to the island and also prior to the examination of her luggage at Customs.
This is how the Caribbean Court of Justice (CCJ) dealt with this matter:
“Although Ms Myrie initially had not indicated that she had been taken upstairs twice by officers Gittens and Carrington, it is clear from the facts she had provided that the more serious questioning must have taken place after she returned from Customs at around 17:45 hrs. It was only thereafter that her suitcase could have been searched in the Drugs Squad Office . . . .”
Having been persuaded that Miss Myrie was telling the truth, the court had to find sufficient time for the facts alleged by her to occur and this was done by rewriting the timeline of her evidence (that is, by suggesting that she was mistaken about this part of her evidence).
On another occasion I will analyse in detail the evidence in the case.
At some stage the court had to determine what standard of proof it would apply in the case. In our jurisdiction in domestic cases, there are two standards of proof – one for criminal cases, and another for civil.
In criminal cases the prosecution must prove its case against the accused beyond reasonable doubt. In civil cases the claimant must prove his/her case on a balance of probabilities. In re B (2008), a decision of the English Supreme Court, this is how Lord Hoffman described the standard of proof in civil cases:
“There is only one rule of law, namely the occurrence of the fact in issue must be proved to have been more probable than not.”
Although not stated, it is submitted that it is this standard that the CCJ must have applied: This is what the CCJ said about standard of proof in the Shanique Myrie case:
“[11] Before embarking on an analysis of the facts of this case the court must address the issue of the applicable standard of proof. There is no consensus on the formulation of such a standard in international courts that deal with non-criminal cases. This may be because the issues surrounding the standard are often subsumed under the broad duty cast on litigants to cooperate with international tribunals and courts in all matters relating to proof. This duty in turn can be traced to the general obligation to act in good faith in international dispute resolution.
“[12] The court accepts, however, that the standard of proof to be applied in this case must be lower than the standard used in a criminal case, whether domestic or international. Faced with the contradictory versions of events presented, the court gave very careful and anxious consideration to all the material before it, given the seriousness of the allegations. The court was ultimately satisfied that its findings were fully supported by the objective evidence, the testimony given and the reasonable inferences that the court was entitled to make.”
I should point out that an international court such as the CCJ, when sitting in its original jurisdiction, can, if it chooses, apply a higher standard of proof.
I was very disappointed with the way the CCJ dealt with this issue. It merited more discussion. In next week’s article I will focus on this matter.
• Cecil McCarthy is a Queen’s Counsel.
