The Guyana Bar Association (GBA) in response to an article published in yesterday’s edition of the Stabroek News under the headline `High Court criminal trials set to recommence October 6’ has express-ed the view that given the COVID-19 pandemic, trials should not recommence at this time.
In a release, the GBA listed a number of concerns stating among them that in the Practice Directions and Protocols no provision is made for COVID-19 testing and that the requirement for witnesses to remove their masks to give evidence is in violation of good practices, guidelines of COVID-19 Emergency Measures No. 9.
In an interview on Wednesday, Registrar of the High Court, Sueanna Lovell told Stabroek News that the judiciary was assiduously working towards having criminal trials recommence on October 6th.
The Registrar was asked about the resumption of trials against the backdrop of recent unrest at the Lusignan Prison during which prisoners raised a plethora of complaints noting among them that their matters were not being heard with any alacrity.
Trials have not been conducted since Guyana recorded its first coronavirus case back in March.
While acknowledging the frustration of the prisoners over their matters not being heard and their constitutional right to a hearing within a reasonable time, Lovell assured that the judiciary has not been blind to their concerns.
She had said, however, that given the pandemic and the need to ensure physical/social distancing which forms part of the guidelines to stem the spread of the deadly disease, specific protocols have had to be considered as to how juries, which form a fundamental pillar in High Court criminal trials, would be facilitated.
To this end the Registrar said that meetings are currently being held at the highest levels with all stakeholders—the judiciary, the Director of Public Prosecutions (DPP), the Prisons and Police where certain decisions are being looked at and taken to ensure the safe conduct of jury trials.
Not absolute
The GBA is saying, however, that while it is conscious of the constitutional right of an accused person to a fair hearing within a reasonable time, this right is not absolute and must be balanced against other considerations such as public health and other enshrined rights of citizens.
“One right cannot outweigh the other,” the GBA said in its statement.
Among concerns it raised are that physical attendance of counsel and the jury is mandatory without a reciprocal provision for the presiding judge.
Lovell in her interview with Stabroek News had, however, listed the judge as being physically present.
She had said that the judge, clerk and Marshall which make up court staff will be allowed in the courtroom along with the prosecutor, two attorneys per accused and two relatives at the most.
She said, too, that the jury would not be accommodated in the jury box as is the norm, but would be rather be spread across the courtroom to ensure social distancing while noting that the hearings will be live streamed via Zoom so that the press and other relatives desirous of following the proceedings can be accommodated.
Another of the GBA’s complaints is that in Practice Directions and Protocols which it received two days ago no provision is made for consent of the persons involved in the particular case and that there is conflict with social distancing and what the Bar called “other outfitting practicalities.”
The Bar Council in its release said that the Practice Directions and protocols which were shared with it two days ago are what this newspaper referenced in its article.
This is, however, not the case. The practice directions to which the article made reference was that made public and published in the official Gazette back in March.
In the directions and protocols it cited, however, which it said was brought to its attention “from other sources” the Bar contends that the protocols do not detail acceptable safety measures; do not account for risk assessment, ongoing or otherwise and do not provide for measures should guidelines and directions be breached.
According to the Bar’s statement, “jury trials all over the world have been impacted by the COVID-19 pandemic. Guyana is not peculiar in this regard. The consideration for the resumption of which has been led by medical science.”
The statement then goes on to add, “in our sister nations of Jamaica and Trinidad & Tobago with high infection rates, jury trials have not yet recommenced. Guyana’s reported rate is higher than that of Trinidad and Tobago with 4,026 cases and 65 deaths compared to Guyana’s 2,535 cases and 72 deaths.”
Grave concerns
The Bar said that in light of the reported rising cases and deaths in Guyana, particularly over to the past month, it has grave concerns and reservations for the resumption of jury trials at this time in the manner proposed by the directions and protocols to which it referred and issued a call for wider consultations to be held before so doing.
“Meaningful consultation has become the hallmark of good administration in a modern society, as now recognized in many decided cases.”
The Bar said that the decision to resume jury trials affects not only the Bench, Bar and accused, but the public at large who are “compelled by judicial command to appear either as jurors or witnesses, under the threat of penal sanction if they fail to do so.”
The GBA said that a member of the public has no option of consent to appear as the final decision resides in that of the presiding Judge in whom the sole discretion lies even to permit facilitation remotely by way of virtual video link.
“In the current pandemic climate, physical appearance is at a great personal and public health risk, which could mean life or death, the release said.
The GBA said that while Guyana was paralyzed by a prolonged five-month election process concurrently with the COVID-19 pandemic, other jurisdictions which had the benefit of an operational Parliament were able to pass laws and institute procedures to keep the legal process moving forward while protecting and balancing the rights of all citizens.
On this point it cited Amendments to the considerations and conditions of bail to reduce the number of persons in custody; plea deals; Judge-alone trials at the option and with the consent of the accused; reduction in the number of jurors required; virtual hearings and procurement of the equipment therefor and E-filing and other electronic facilities.
The Bar said that while it recognizes the efforts of the judiciary to cope with the changes brought by the pandemic, with a functioning Parliament now in place, it is important that these matters be given urgent attention so that the rights of citizens and the public’s health can be secured.
In its release the GBA raised too, that the recent reported number of positive COVID-19 cases of inmates is alarming and also a cause of concern for the resumption of jury trials at this time.
On this point it said that it is the duty of the State to provide adequate facilities for persons in their custody.
Some 140 inmates at the Lusignan Prison have contracted COVID-19.
“Delays in trials of accused persons have plagued Guyana for many years due to many factors. We are now in the extraordinary time of a pandemic which has undoubtedly changed our lives and manner of operation. As we have all now undoubtedly learnt, we will be unable to do things the way we used to for quite some time. Alternative solutions must be found and employed out of a collective, consultative and coherent process,” the statement said.
Referencing case law coming out of Trinidad in what it said was a recent published missive by that country’s Chief Justice Ivor Archie in response to Justice Frank Seepersaud who objected to the cessation of in person hearings including jury trials, the GBA noted that the judge stated “this is a time for solidarity with the entire nation and the world in mitigating the certain harm of COVID-19. Your cooperation is required. This is a time to use caution and take every precaution …it may make the difference between life and death for us judges, our beloved staff, stakeholders, litigants and every member of their households.”
The Registrar sought to assure that every measure is being adopted to ensure the safety of everyone in the courtroom; while noting that over the past months consultations were had with the GBA as a stakeholder all in the quest to forge the way forward.
According to the Bar, however, it has never been consulted.
“For the avoidance of any misunderstanding, the Bar Association wishes to make it categorically clear that we have not been consulted on the date and or modalities for the resumption of jury trials in the High Court.”
Lovell in her interview with this newspaper was, however, never asked whether the Bar had been consulted on any date or specific modalities and she made no such assertions. The Registrar only said that the Bar, being one of the important stakeholders, had been consulted.
The GBA claimed in its release as well, that it appeared from the news report that an invitation had been extended to the Bar Council for a meeting later today (yesterday) after the decision for resumption and mode thereof has already been made.
Nowhere in the news report, however, was that said or indicated.
Commenting on the court’s readiness to conduct the trials Lovell had told Stabroek News that the logistics were manifold for ensuring that the court is ready to operate under strict COVID guidelines, and to this end had explained that the courtrooms are being prepared to accommodate persons differently.
On this point she noted that they are currently being outfitted with protective glass shields and the technology required to facilitate virtual hearings and the like.
She said, too, that there are certain technological considerations which have to also be factored in for persons who will be joining the hearings remotely and on this point she referenced the prisoners themselves who she said will not be leaving the prisons to attend court, but will instead do this virtually.
Lovell outlined that the prisons are also therefore putting systems in place to ensure that their technological capabilities are in place, ready and can facilitate the trials by October 6th.
