Two former female wards of the Government Industrial School (GIS) have been granted a combined $210,000 in damages for breaches to their constitutional rights. Additionally, the section of the law under which they were charged and incarcerated for ‘wandering’ was struck down as unconstitutional.
This was contained in a 37-page ruling delivered on Tuesday by High Court Justice Westmin James. The girls, identified only as A.B. and C.D. because they are minors, had filed an application in 2022 through their attorney seeking redress for a contravention of their fundamental rights and freedoms while in the State’s care at the juvenile reform school.
“This case raises extremely important issues, namely whether the continued criminalisation of children and their detention pursuant to Section 14 (1) b of the Reformatory and Industrial Schools Act Cap 169 of the Laws of Barbados for the offence of ‘wandering’ is consistent with the Constitution of Barbados,” the judge stated.
“It also concerns the question of whether the conditions of the claimants’ detention while in the care of the Government Industrial School is consistent with their rights under the Constitution,” Justice James pointed out.
He noted that the girls were committed to the female unit of the reform institution which was then at Barrows in St Lucy by Magistrate Graveney Bannister in August 2021 and February 2022 under the section of the Act which states: “found wandering and not having any home or settled place of abode or proper guardianship or visible means of subsistence.”
In reaching his decision, the judge addressed five issues on which he ruled which emerged from the submissions of counsel for the two claimants and the four defendants – the Attorney General, the Principal of the GIS, the Minister of Home Affairs and Information and Magistrate Bannister.
Justice James considered whether the claimants’ claim was an abuse of process; whether Section 14 (1) b of the Reformatory and Industrial School Act infringes Sections 11 and 18 of the Constitution vis-a-vis protection of the law; whether that same section of the Act infringes Sections 11 and 18; whether the claimants’ rights were infringed under Section 15 for cruel and inhumane treatment, and whether the girls are entitled to damages.
He rejected the submission of the Deputy Solicitor General Marsha Lougheed that the girls’ claim was an abuse of process. The presiding judge also held that the term ‘found wandering” and not having any home or settled place of abode or proper guardianship or visible means of subsistence’ is much too vague.
“It provides individuals with no prospective notice of what is lawful conduct and confers a ‘standardless sweep,’ giving law enforcement too much discretion in determining what conduct is improper.
“I would therefore hold that Section 14 (1)b is hopelessly vague and not law. While I am not considering the legality of all of Section 14, I will comment that the time has come for the entire Section 14 to undergo serious reform, as a similar challenge can be mounted to several other parts of Section 14.”
He said the section violates the right to protection of the law.
Justice James also found that “Section 14 (1)b is directly discriminatory based on age and indirectly discriminatory on the basis of sex. The provision also falls foul of the protection of the law provision, and should for this reason also be considered unconstitutional.
“Section 14 (1)b is struck from the Reformatory and Industrial School Act of the Laws of Barbados,” judge James said in his judgment.
The girls are also entitled to have their costs assessed, if not agreed,
The justice also ruled that there be a 42-day stay of execution of his judgment from the receipt of the signed copy.
The judicial officer also ruled on claims that the girls were subjected to cruel and inhumane treatment as a result of mandatory vaginal examinations, taunting and psychological abuse by staff which included their intimate details being used against them; solitary confinement and deprivation of meals; physical and sexual abuse; inadequate medical and psychological care and inadequate educational instruction.
The court ruled in favour of the State that there were no mandatory vaginal examinations of the girls while in care at the institution based on the evidence presented and the information could have been possibly deduced had the attorney for the claimant cross-examined the witnesses.
Justice James also pointed out that while the claimants alleged certain conditions of their detention at the GIS in their fixed date claim form, “here, the claimants are describing police actions, which while are part of the State, are not what is claimed in the fixed date claim.”
With regard to allegations of taunting and psychological abuse by staff, the court contended that the Deputy Solicitor General did not address this accusation in her submissions, and “I therefore take this as proven.”
He ruled that while the claim of solitary confinement as punishment was not contradicted by the defendant, it was not relevant to determining whether the two girls were subjected to it because the instances identified did not involve them.
The judge also agreed with the attorney for the former wards that the conditions at that facility were unsanitary, lacked proper toilet facilities, proper mattresses and sleeping quarters and that the buildings were in disrepair. He said while he found serious challenges to the infrastructure at the GIS, whether they met the criteria of cruel and inhumane and degrading treatment or punishment was partly a dispute of fact to which there was also no cross examination by the claimants of the State or any witness by showing them the available photos to prove this was the current state.
Again, the judge ruled in favour of the defendants who had denied that the former wards were placed in a cell overnight with nothing to eat, as punishment because he was faced with another conflict of fact which was not challenged by the attorney for the claimants.
Once more, the State had its way against the claimants who had alleged “disturbing physical attacks and sexual assaults” against the backdrop of an absence of cross examination by the claimants.
“Having regard to major disputes here and there being no cross examination, I have no choice but to resolve these issues in favour of the defendants in this particular case. There was no independent evidence that I could rely on to say that the claimants themselves had suffered these attacks,” he declared.
“I would however say that the evidence presented in this case, does raise cause for concern and for a thorough independent police investigation into the treatment of the claimants and all persons detained at the GIS. It is unfortunate that the parties did not have cross examination in relation to this issue,” Justice James asserted.
The judge also strongly chastised the Deputy Solicitor General for using the personal psychiatric medical report of one of the girls to suggest that her “wild” allegations should not be believed.
“The court must say that the report was irrelevant as to whether the incidents took place as nothing in the medical report indicated the claimant made this allegation up. The learned Deputy Solicitor General who is not a medical doctor or gave evidence could not make such a conclusion. The court found the use of this personal information quite frankly distasteful,” the presiding judge asserted.
“The learned Deputy Solicitor General did the very thing that the claimants accused persons at the GIS of doing – using private information and their medical information against them when faced with allegations of wrongdoing,” he added.
Justice James pointed out that persons with disabilities are far more likely to be the subject of violence than being the perpetrator of violence.
“I would implore the learned Deputy Solicitor General to rethink such an approach,” the judge suggested.
The judge also took the chairman of the GIS board to task for not reporting the allegation of abuse by A.B to the police.
“Damages are awarded to A.B in the sum of $45,000 for compensatory damages and $50,000 for vindicatory damages…damages are awarded to C.D in the sum of $65,000 for compensatory damages and in the sum of $50,000 for vindicatory damages,” the judge ordered.
“The sums are to be paid into court in an interest-bearing account until A.B and C.D reach the age of 18 years old,” the judicial officer declared in his decision.
Dr Marsha Hinds-Myrie, the main advocate of the claimants declined to comment on the outcome while neither their attorney Anya Lorde nor Attorney General Dale Marshall could be reached for a response.
emmanueljoseph@barbadostoday.bb
