Two weeks ago I received a visit from one of my Trinidadian cousins whom I had first met in 1981 when I went to live with my uncle (a Barbadian), who was married to a Vincentian and was residing in Trinidad.
I had gone over to Trinidad to study for my Legal Education Certificate and the arrangement was made by my father who had never been to Trinidad, and who had not seen his brother since he made Trinidad his home many years earlier.
Apart from my stay there, in my capacity as president of the Guild of Undergraduates of the University of the West Indies (1980-81) and particularly as president of the Barbados Credit Union League, I spent most of the 1980s travelling the region. Especially as a credit union leader, I would have met many of the ordinary people of the region.
It is difficult after those experiences not to aspire to a greater level of interaction with my brothers and sisters from the region.
It is probably the same type of spirit that inspired the aspirations captured in Article 45 of the Revised Treaty of Chaguaramas: “Member states commit themselves to the goal of free movement of their nationals within the region.”
I met with my Trinidadian family for about one hour and the most lingering memory I had of our interaction was their lament about the state of crime in their country. This was in response to a question about how they were doing.
Their visit caused me to reflect again on the Shanique Myrie decision and to complete my own analysis of the decision.
In the Myrie case, the main allegation was that a Barbadian border official had performed a humiliating and unlawful body cavity search on Miss Myrie. This allegation required that the fact of the search be proved in accordance with a standard of proof to be determined by the court.
The court had several options (all of which have in different circumstances been applied by various international tribunals):
• It could have used the same civil standard of proof that is used in domestic cases in the common law world, namely, proof on a balance of probabilities.
• It could have used the criminal standard (that is, proof beyond a reasonable doubt).
• It could have used a standard of proof higher than the civil standard but not as high as the criminal standard.
An example of the last test is found in Article 3.1 of the International Master Games Association (IMGA) Anti-Drug Rules, which reads: “IMGA shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether IMGA has established an ant-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than beyond reasonable doubt.”
It is my view that the factual issue of whether a body cavity search was performed required an elevated standard of proof mainly for the following reasons:
1. The allegation was a very serious one and if the search did occur in the manner set out in the evidence of the claimant, it would have amounted to a criminal offence.
2. The police officers attached to the Drug Squad are very important to control of drugs at the border. A positive finding of performing an illegal cavity search ought to result in the removal of the officer or possibly both officers (if they are both implicated) from their current roles at the border.
3. A positive finding reflects negatively on the country and the cynical may well feel that there is some attempt to cover up wrongdoing.
4. There are numerous cases in the common law world where matters such a professional misconduct and sexual assault have been alleged where the courts have either applied an elevated standard of proof, or have indicated the evidence must reach a certain level to satisfy the standard of proof.
The Caribbean Court of Justice did not condescend to any serious discussion of the issue of standard of proof and was content to simply state: “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.”
When we consider that in its original jurisdiction there is no appeal from the court’s decision, it is submitted that where serious allegations are made, this strengthens a case for some elevated standard of proof to be applied.
• Cecil McCarthy is a Queen’s Counsel.