While the High Court has announced its intention to physically resume criminal trials on October 6th, the Guyana Bar Association (GBA) has expressed the view that given the COVID-19 pandemic, trials should not recommence at this time.
A number of criminal attorneys are, however, in support of the court’s decision to have the wheels of justice turning once again where such trials are concerned, though they have collectively called for this to be done in the safest possible way given the pandemic.
For his part, attorney Ronald Burch-Smith said that while the Bar’s concerns are reasonable in that it wants to ensure no recklessness in the issues to be determined when considering the resumption of trials, one must also ask how long then would the wait be.
Against this background he made the point that a balance must be arrived at.
In an interview with Stabroek News yesterday, Burch-Smith shared that he has a client who has been in prison since December of 2014 and is at risk of contracting COVID-19 given that over 100 inmates have been tested positive for the deadly virus.
“So if you ask him whether he would wait another year until the Bar Association is satisfied…he would tell you that he wants his trial to be done now,” the lawyer said.
He then referenced another client of his whom he said has been incarcerated for the past six years.
According to Burch-Smith, there are no witnesses in this case and that prisoner would like to have his trial heard expeditiously as well “not when it is convenient for the Bar Association,” the lawyer asserted.
He expressed the view that considering the cases against his clients in both instances, it is very likely that they will be acquitted.
Fair hearing
Burch-Smith said that while the Bar’s opinion is important, so is the prisoner’s constitutional right to a fair hearing within a reasonable time.
He said he does not know whether the Bar has considered directing its concerns to the legislature or the executive to make provisions to reduce the prison population thereby reducing pressure on the court to conduct trials at this time.
On this point the lawyer said that “because parliament…with National Assembly and President…those two bodies can pass laws to remit sentences thereby reducing the prison population.”
He noted, too, that the longer trials take to resume, it would further exacerbate already existing backlog issues.
To this end he said he is sure that it is convenient for the Judiciary to make all appropriate arrangements it needs to ensure the safe resumption of trials.
He said that the Bar’s concerns are reasonable in that it wants to ensure no recklessness in the issues to be determined when considering the resumption of trials, but said that one must also ask for how long would the wait then be.
“For another month, year, five years?” the lawyer rhetorically asked.
Meanwhile, Attorney Lyndon Amsterdam said that while there are competing interests—the prisoner’s right to have his case heard and the safety of the wider public, the court will have to consider the safety and security of all involved.
He said that while he does not know the details of the protocols for trials in the upcoming October assizes there are competing interest while specifically citing that prisoners on remand have been clamouring for trials even before the break of the pandemic.
Against this background he said that the safety and security of the persons who are expected to participate in any trial in the assizes have to also be considered.
To this end he referenced jurors and expressed the hope that all necessary protocols are followed for these 12 persons who would have to be in the same space, even as he underscored the importance for testing and efficient social distancing measures to be put in place.
Attorney Ravindra Mohabir to whom this newspaper also spoke expressed his support for the resumption of trials, but like his colleagues, called for strict adherence to all the COVID-19 guidelines.
Noting a person’s constitutional right to a fair hearing within reasonable, Mohabir said that “justice delayed is justice denied,” but stressed also that the courts must ensure the safe conduct of trials and to this end he recommended that as far as it is possible, the trials should be conducted remotely.
Endorsed
He endorsed the plans by the court to have jurors accommodated in a social-distanced manner as opposed to being seated in the jury box while expressing the view that the courtrooms should be opened during hearing and air conditioning units switched off, but suggested the use of fans only.
He said that jurors should also be screened before selection and that for witnesses who have to testify, this should be done virtually once it can be accommodated via Zoom or other online portals.
Mohabir said that lawyers should also be allowed to work remotely so that the amount of persons present in the courtroom can be further reduced to further minimize the chances of contraction of the virus.
But if this is to all work well, Mohabir said that the court must ensure reliable internet service and optimum speed with no interference in its bandwidth and signal and that there would be no interruptions during power outages.
Trials have not been held since March when Guyana registered its first COVID-19 case and fatality.
Following the court’s announcement that trials will resume, the GBA issued a release in which it 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 with Stabroek News last Wednesday, High Court Registrar Sueanna Lovell stressed that the logistics of complying strictly with COVID-19 guidelines were extensive and noted that the courtrooms have to be prepared to accommodate persons differently.
She said that 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 GBA is saying, however, that while it is conscious of the constitutional rights 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.
Registrar Lovell in her interview with Stabroek News had, however, listed the judge as being physically present.
She had said that the judge, clerk and Marshal who 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 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 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.
Some 140 inmates at the Lusignan Prison have contracted COVID-19.
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.
