The Bar Association takes note of the reported resumption of jury trials on October 6, 2020 as set out in today’s edition of the Stabroek News in the article titled “High Court criminal trials set to recommence on October 6”.
The Bar Association further takes note of the statement attributed therein to the Registrar of the Supreme Court, Mrs. Sueanna Lovell, that the association has been consulted over the past months “… in the quest to forge the way forward.” 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.
It appears from the report, that an invitation has been extended to the Bar Council for a meeting later today after the decision for resumption and mode thereof has already been made.
Further, the Practice Directions and protocols referred to in the said article were only shared with the Association two days ago and on request after it was brought to the attention of the Bar Council from other sources.
It is our position that many areas of concern arise from the said directions and protocols, inter alia:
- No provision is made for testing;
- The requirement for witnesses to remove their masks to give evidence is in violation of good practices, guidelines and Sections 10(f) and 12 of the Covid-19 Emergency Measures (No. 9);
- Physical attendance of counsel and the jury is mandatory without a reciprocal provision for the presiding judge;
- No provision is made for consent of the persons involved;
- Conflict with social distancing and other outfitting practicalities;
- 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.
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.
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. 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.
In light of the reported rising cases and deaths in Guyana, particularly over to the past month, we express grave concerns and reservations for the resumption of jury trials at this time in the manner so proposed by the aforesaid directions and protocols and 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 decision to resume jury trials affects not only the Bench, Bar and accused, but also 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. A member of the public has no option of consent to appear, the final decision residing 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.
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 that adapt to keep the legal process moving forward while protecting and balancing the rights of all citizens, such as:
- 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.
While we recognize the efforts of the Judiciary to cope with the changes brought about by the pandemic, we now have a functioning Parliament. It is therefore important that these matters be given urgent attention so that the rights of citizens and the public health can be secured.
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. It is the duty of the state to provide adequate facilities for persons in their custody. 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.
In a recent published missive by the Honourable Ivor Archie, Chief Justice of Trinidad and Tobago in response to that of the Honourable Justice Frank Seepersaud who objected to the cessation of in person hearings including jury trials, His Honour 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.”
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