The announcement by the High Court that it is preparing to have criminal trials resume on October 6th when the final assizes for the year is expected to be declared open must be welcomed.
It will bring relief to the accused who must have their day in court and the public who must see the wheels of justice turn.
Trials have not been held since March when Guyana registered its first COVID-19 case and fatality. In the months that have passed the COVID crisis has worsened and there is no prospect for any substantial improvement until a viable vaccine becomes widely available here sometime next year. It would be unconscionable to further delay criminal trials until ideal conditions resume.
Further, it is clear that the prison system is coming under severe threat from the seething discontent over the withholding of trials and the lack of access to justice. There is also the risk of an inordinate backlog of cases if trials are not resumed. The High Court has had around six months to plan extensively for the safe resumption of trials where the safety of litigants, jurors, witnesses, officers of the court and court staff would be given paramount attention.
In an interview with Stabroek News, High Court Registrar Sueanna Lovell stressed that the logistics of complying strictly with COVID-19 guidelines were extensive. She noted that the courtrooms have to be prepared to accommodate persons differently.
They are currently being outfitted with protective glass shields and the technology required to facilitate virtual hearings. There are also certain technological considerations which have to be factored in for persons who will be joining the hearings remotely. Registrar Lovell said that the prisoners will not be leaving the prisons to attend court, but will instead do this virtually.
The Registrar added that the prisons are putting systems in place to ensure that their technological requirements are in place to facilitate the trials by October 6th.
The Registrar noted 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. Registrar Lovell added that the judge, clerk and marshal will be allowed in the courtroom along with the prosecutor, two attorneys per accused and two relatives of the accused at the most.
She pointed out that the hearings will be live streamed via Zoom so that the press and other persons interested in following the proceedings can be facilitated. She asserted that the court has been working assiduously to ensure the safety of all participants in the process.
“So we did not just down tools and allow the chips to fall where they may. We have been working together to address concerns and issues”, Registrar Lovell added.
Following the Registrar’s statement, the Guyana Bar Association has raised concerns about the resumption of criminal trials at this point given the deterioration in the COVID-19 situation.
In a statement, it said: “The Bar Association of Guyana is conscious of the constitutional right of an accused person to a fair hearing within a reasonable time. But 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”.
It is the view of this newspaper that the High Court has the required resources at its disposal to balance the rights of all in the pursuance of criminal trials and that the right of the accused to a hearing – considering the months that have elapsed – cannot be easily trifled with. To continue the status quo would undermine the rule of law and trigger all manner of repercussions throughout society.
The Bar Association has pointed out that in other jurisdictions where parliaments have been functioning, legislative steps have been taken to keep the legal process rolling and balancing the rights of all citizens.
It cited steps taken as including:
– 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;
– E-filing and other electronic facilities.
Perhaps the Bar Association can raise these matters with the Leader of the Bar and Attorney General as the government is said to have a robust legislative agenda in preparation.
The Bar Association has also raised concerns about the absence of provisions for testing for COVID-19 in the Practice Directions and Protocols for criminal trials among a host of other issues and one expects that these would be satisfactorily addressed by the High Court.
In closing its case, the Bar Association quoted a view of the highly controversial Chief Justice of Trinidad Ivor Archie in response to a letter to him by Justice Frank Seepersad on the restrictions on in-person trials “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.”
Justice Archie’s response reads like a call to do nothing and not one in favour of justice and the rule of law. According to the Trinidad Guardian, Justice Seepersad’s letter had pointed out that the reliance on virtual trials has had a negative impact on his work as he was only able to complete 11 trials between June and this month as opposed to 12 per month before the pandemic. He also said while virtual trials were useful, they were far from ideal for all legal hearings.
“The virtual trials are taxing, hard on eyes, the integrity of the evidence is questionable and they take longer than expected,” Justice Seepersad said.
Noting that the issue was also affecting the Criminal Division with the suspension of jury trials and low interest in optional judge-alone trials, Justice Seepersad said statistics showing the use of thousands of virtual hearings would be misleading.
“The disposition rate over the period March to present must be well below average and would possibly belie any such contention. The citizens of this republic surely deserve better,” Justice Seepersad said.
According to Trinidad Newsday, Justice Carol Gobin has also called on the CJ to reconsider the ban on in-person trials. She said she took a stroll through the Hall of Justice and the 20 or so courtrooms were large enough to safely accommodate trials with the requisite protocols of physical distancing.
“It was eerie. Most were locked, all empty and abandoned for a reason which remains a mystery…This when the judiciary has from the inception been deemed an essential service and when as the Honourable Prime Minister continues to remind, we are not on lockdown,” Justice Gobin said.
“Surely the judges and all judicial officers who work in the system and the taxpayers who have paid for the court buildings and who even in these difficult times are paying for an expanding system of courts and court personnel, deserve better than this.
“The practice direction has effectively removed the ability of judges to perform one of their core functions, the trial of disputes, in an environment in which the public can have confidence.
“Remote hearings for CMCs (case management conferences) and some applications (even with the technical difficulties that are invariably experienced) are, no doubt, generally sufficient to meet the requirements of fairness and efficiency, but I do not consider them to be appropriate for trials and generally, my feedback from attorneys and litigants is that they share this view,” she added.
The public looks forward to the High Court taking all necessary steps to ensure the safe restart of criminal trials.
