Lawyers want clarity on bail hearings amid court shutdown

AT least one High Court judge has expressed concern at the Chief Justice’s decision to shut down the courts because of the rising number of covid19 cases and a burnout of court staff.

Some attorneys support the measure but want clarity on certain matters, in particular bail.

On Tuesday, CJ Ivor Archie issued amended practice directions which suspended hearings and sittings – both in-person and virtual – of all courts until June 30, unless deemed urgent.

There were exceptions: domestic violence cases; maintenance applications; urgent custody applications; detention of cash matters under the Proceeds of Crime Act; matters under the emergency powers regulations; and charge matters.

The suspension also applies to all judiciary virtual access customer centres (VACCs), except in instances where a witness has been deemed fit for hearing during this period.

Already the police have expressed concern. They say a change in locations where virtual hearings are held could put them at further risk of being infected.

On Thursday, outspoken judge Frank Seepersad said the CJ’s decision was taken without consultation. Shortly before deeming a malicious prosecution trial urgent, Seepersad said he had previously settled his trial list for the period covered in the practice directions, and they were all going to proceed virtually as the parties involved in the cases agreed to go on with the cases.

Last year, when the pandemic was declared, Seepersad objected and warned of the impracticability of virtual trials.

On Thursday, he said unrestricted access to justice was a fundamental pillar of a democratic society.

“The pandemic notwithstanding, our responses must not be disproportionate. When a measured analysis is engaged it is reasonable to conclude that a virtual trial, where every lawyer, court staff member and witness is safe at their respective remote locations, and where the lawyers are prepared to proceed, poses absolutely no health threat.”

He said in the unlikely event staff were required to be physically present at court buildings for administrative issues, those numbers would be minimal. He said prudent management could be employed and heightened precautionary and sanitisation processes engaged.

“Every matter is urgent and important for the litigant whose life is affected by the particular matter and this court will be prepared to deem all its listed trials for the month of June as urgent, provided that safety protocols are observed and the unanimous consent of all affected parties is obtained.”

In an e-mail to staff, which included judges, Archie explained the revision of the emergency directions for the court, saying this was not only against the backdrop of the current worsening pandemic but also at a time when the Judiciary’s human resources had been completely depleted.

“Scores of employees are either ill or quarantined and are unable to function as before.

“In addition, many employees of our cleaning and security service providers who, like ours, are required to take public transportation to get to work, are currently incapacitated. This compromises our ability to keep our court buildings and VACCs safe and provide continuous service.”

Archie said he also had to acknowledge the fact that many of the JSOs who have been heroically supporting the Judiciary for the past 15months, as extra demands are placed on them, were now burnt out.

“Many of them are simultaneously caring for school-age children and/or sick relatives.”

He said while judges still have the discretion to decide whether matters are fit for hearing under the new practice directions, he asked them to be considerate and to bear in mind its intention was to preserve business continuity for cases that were genuinely “urgent” or “emergency in nature.

When contacted, president of the Law Association Sophia Chote, SC, said it appeared some matters were progressing.

“And, a court of its own motion may deem a matter fit to be heard. In practical terms we need to wait to see how these first few days go before commenting further.”

Michael Rooplal, president of the Assembly of Southern Lawyers, who previously expressed concern and wrote to the CJ asking for a suspension of all court directions, said given the current situation with the pandemic, the ASL understood and agreed with the decision to suspend hearings except those deemed urgent.

Wednesday’s amendment did not change the previous directions, in which time will cease to run until June 30 in respect of timelines for filing and orders made by the court, except for orders for filing submissions made before May 18, 2021, and the payment of maintenance.

The payment of traffic tickets issued before May 26, 2020, is also suspended, as well as the payment of fines and certain fees. Cash bail is by appointment only and arrangements were put in place for the approval of a surety for bail.

Rooplal said the most recent practice directions took the ASL’s members by surprise, as there was no consultation.

“To the best of my knowledge, similarly there was no consultation with the Law Association either. The decision to suspend hearings was also taken a week after the decision to suspend directions of the courts. “Therefore, a lot of our members who had matters fixed to proceed virtually were taken by surprise.”

He said there was also some confusion on whether bail hearings are deemed urgent.

“As you know, under our Constitution no accused person should be deprived of the right to reasonable bail without just cause.

“While under the practice directions ‘charge cases’ are deemed urgent, this does not specifically address applications for bail for persons who are already in custody, applications for variations in bail, and bail applications to Masters of the High Court.

“We feel that the practice direction issued by the CJ ought to have specifically addressed these areas.”

Prosecutors also partly support the new shutdown of courts, since many said it was difficult to get civilian witnesses to go to the VACC centres to testify.

They also said the other issue was the number of police offices currently in quarantine. However, they felt bail hearings and case management conferences could have remained virtual, but agreed that trials, either in the High Court or summary courts, needed to stop temporarily.

Despite the concerns, there were judges in the civil division who previously admitted they were inundated.

Those Newsday spoke with said many of them had lost track of decision dates, and e-filing had led to an increase in the number of cases being filed and assigned.

Added to that was the elevation of four judges to the Court of Appeal, which left huge dockets to be shared around among the 13 judges who said they were now doing the work of 17.