Virtual trials are not new, says Judiciary

VIRTUAL trials are not new. Nor was it implemented only for the covid19 pandemic.

“Legislation has, for some time, provided for a judge or judicial officer to hear a witness virtually when he deems necessary,” the Judiciary said on Monday in response to questions from Newsday on the possibility of resuming jury trials at courthouses.

Last week, the Director of Public Prosecutions took the position that his north office at Winsure Building in Port of Spain will not be become a courthouse with witnesses giving evidence from there for criminal trials.

The position was telegraphed in an application filed by the State in a virtual judge-alone murder trial which was eventually aborted for another reason.

The DPP cited congestion of traffic at the office which made it difficult to maintain physical distancing and expressed concerns for the health and safety of staff.

There was also the suggestion that capital charges were unsuitable for electronic hearings.

In its response, the Judiciary noted that legislative provisions have enabled and continue to enable the hearing of witnesses virtually in this time of public health crisis.

“Each judge or judicial officer exercises trial management responsibility in each case before him. Each takes all factors into account and decides how he or she will hear each witness,” the Judiciary said.

It also added that the practice directions of the Chief Justice provided for certain hearings to be done virtually.

“It discourages in-person hearings unless absolutely necessary and there is no appropriate alternative. This assessment is a decision for the judge or judicial officer in each case,” the statement said.

“As to the manner of the delivery of services during the covid19 period, the Judiciary will continue to take into account all issues and concerns to determine how best to manage the courts, to provide access to justice and to keep its staff and the public safe,” it added.

The judge in the aborted virtual judge-alone trial, in her ruling on the application of a change of venue for witnesses, said greater stakeholder engagement needed to take place so that the DPP was not placed in a default position where he believes he is restricted to taking witnesses’ testimony from his offices.

She suggested that each case be taken on its own merits and using the proper legal instruments to mount objections as she warned against any attempt to fetter judges sitting in the criminal division.

The judge suggested police stations, court and process departments and possibly the Office of the Attorney General identifying suitable locations in support of the State’s criminal department for the taking of evidence from witnesses.

The Judiciary has started consultations on the way forward for jury trials and its stated position on the issue in Stages 3+ of covid19, says judges of the criminal division have been discussing the issue of criminal trials in the time of the coronavirus pandemic.

So far, they have been able to deal with charge cases, bail applications, case management conferences, preliminary inquiries, magisterial trials and judge-alone trials using virtual technology.

The stated position said judges were of the view that “certain types of offences, not limited to hybrid offences, should be mandatorily tried by judges sitting alone; for the time being all other offences should continue to be tried by judges alone, only at the request of the accused and that any capital jury trials be heard by a judge and jury of nine with up to two alternates and all non-capital jury trials be heard by a judge and jury of six or seven with up to two alternates.

There were also recommendations for capital trials and the taking of verdicts of a jury.

The judges were also of the view that jury trials may require the use of more than one courtroom (or other space) but the jurors and the judge must always be together in the same place.

“The usual position will be that the accused will be appearing by video link. The court’s administration is prepared to implement the configuration of technology and other resources on a case-by-case basis in collaboration with the judge.

“These resources will include not only video technology and court reporting technology, but also the number and placement of screens, and assignment of marshal’s assistants and other staff,” the position document said.

The first of a series of consultations was held on July 2 with senior members of the criminal bar chosen by the Law Association. The process is to continue with the Office of the DPP, the Public Defenders Department, the Legal Aid and Advisory Authority, and other stakeholders, the Judiciary advised.

In its statement, it said participants at the session agreed that the way forward with regard to jury trials was an important issue which required the stakeholders “to come together in a real effort to work out the best solutions for all in the circumstances.”