A new law to accommodate courtroom testimony using closed-circuit television will go before Parliament within three months, the Sunday Observer has learnt, allowing prosecutors wider scope in laying their case in the local courts.

The idea is to put a physical buffer between witnesses who are threatened for giving evidence and those who stand accused of serious crimes. The new law will be in the form of an amendment to the Evidence Act, says attorney-general and justice minister Senator AJ Nicholson, to be tabled in the House “before Christmas”.

“Videotaped evidence is soon to be tabled here … taking account of technological developments,” Nicholson said in a Sunday Observer interview. He is expected to pilot the bill in the Senate.

The revelation comes amidst increasing discussions within legal circles about the need for the laws to recognise advances in technology and its use in crime-fighting and the marshalling of court cases, for more transparency in the conduct of trials, and the need for alternatives to eyewitnesses who increasingly fear for their lives if they testify.

The amendment proposes the giving of evidence via closed-circuit television from locations outside the courtroom, both from within national borders and overseas.

The ministry’s legal reform unit has studied the use of closed-circuit TV in other Commonwealth jurisdictions with a view to developing an appropriate model here.

“There would have to be a pre-trial motion and the location of the witness wouldn’t necessarily be known by the accused,” said the justice minister, pointing to potential linkages with existing safeguard programmes such as Witness Protection.

The acceptance of technology by the courts, which now relies overwhelming on people evidence, has been slow, but inroads are quietly being made.

There is already legal precedent in Jamaica for the use of video evidence in court, though in this case it was the content of the videotape that was presented as evidence.

In 1999, some 11 men gang-raped two teenage sisters at gun-point, and made the mistake of video-taping their crime, apparently for entertainment purposes. Six were later convicted.

In this spectacular case, held in camera – the case of the Queen v Lynden Levy and others – five of the appellants were convicted in the High Court Division of the Gun Court for illegal possession of firearm and rape, and imprisoned at hard labour for 40 to 50 years.

Levy and a band he led forced two teenage girls to perform what the presiding judge Justice Donald McIntosh termed “utterly disgusting, degrading and repulsive acts”, while being repeatedly raped by several men at gun and knife point.

Investigations by the police in another case led to the discovery of a videotape of the girls’ ordeal. (See summary of case on Page 5)

Charges were filed initially against nine men after the police tracked down the sisters and took statements from them.

The tape was submitted and accepted as evidence and contributed to the eventual conviction of the five men, some of whom were identified by various parts of their anatomy by the victims.

This case, which was upheld on appeal – the sentences were reduced, however – has laid the foundation for other such evidence.

Senior Assistant Commissioner of Police Glenmore Hinds, the head of Operation Kingfish, who has oversight of the closed-circuit cameras publicly mounted in high risk crime areas, and the daunting task of dismantling the crime networks, says he is aware that he now has that option.

“Footage from the overhead TV cameras downtown can be submitted to be used as evidence in cases, but I am not aware that such evidence has been used in any case so far,” said Hinds.

However, Anne-Marie Nembhard, crown counsel at the office of the Director of Public Prosecutions, cautioned that while televised evidence could be submitted in court as an exhibit, it was solely for use in identification and could not form the entire basis of a conviction.

“That would require witnesses or other forms of evidence,” said Nembhard.

Another significant milestone was the introduction of DNA evidence, pioneered in the 1990s in Montego Bay to convict a youngster who murdered a woman in the West Gate Hills area.

The police are also equipped with breathalyser machines to test drivers suspected of driving under the influence of alcohol.

The DPP’s office says there are two ways that a breathalyser test certificate can be accepted into evidence: either it is verified by an expert in writing, or the expert shows up in court to authenticate the results.

However, computer evidence, such as email and other electronic transactions/transmissions, are not yet part of the law.

The only law that seems to come close to addressing that deficiency is the new bill, the Electronic Transactions Act, but the legislation which is now before the House, is meant more for the protection of persons and companies transacting business online.

Nicholson, attorney-general for more than a decade, is willing to go even further with the technology reform, saying he agrees – philosophically – that Jamaica should begin televising court cases, as now happens in the United States.

Even the United Kingdom is about to welcome cameras for national broadcasts of criminal trials and civil disputes, starting next year.

The Sunday Times, reporting on a leaked memorandum outlining the plan, said that the UK government would be putting strict conditions on such broadcasts to “strike the balance between demystifying the judicial system while protecting the identity of witnesses”.

But, though Jamaican jurisprudence is linked to the English court system, the likelihood of cases being televised for public viewing in Jamaica is still quite remote based on a number of serious concerns, not least of which is a similar need to protect witness identity on an island where it is virtually impossible to remain incognito and there are few places to hide.

Nicholson said he was committed to the concept of televising certain cases on a philosophical level – that is, “for justice not just being done but appearing manifestly to be done.”

Even if eventually introduced, the attorney-general said the televising of cases would have to be highly circumscribed, avoiding civil cases and those involving “vulnerable witnesses” such as children and the victims of sexual crimes.

The plan would also require the sanction of the Chief Justice.

Televising of cases is more common in the United States, as the thousands of Jamaicans who pored over details of the celebrated case of OJ Simpson can attest.

But even in the US, there are limits, as the non-televising of the Michael Jackson’s child molestation trial earlier this year showed. Jackson was freed of the charges.

Closed-circuit television evidence, which would be viewed only by those participating in a local trial, appears more feasible for now and is one of the agreed recommendations arising from the Declaration of Emancipation Park that the government, opposition and private sector have signed on to.

The Jamaica Bar Association, however, is yet to arrive at a position on the issue, though the pending law will represent a fundamental shift in trying court cases.

JBA president Arlene Harrison-Henry, espousing a personal position, said the plan could have constitutional implications, adverse to the persons who stand accused.

Harrison-Henry says it could deny the accused his/her right to, she argues, physically face an accuser.

And, she expressed concern about implementation of the new law without changing Jamaica’s constitutional framework which provides for “public trials”, implying that “accused and accuser must face each other.” Nicholson, though acknowledging the constitutional implications, swatted away the concern, saying the link-ups could be done to facilitate any eye-balling required.

“Generally, stemming from constitutional provisions, persons should be present in court so that the accused can face the accuser ‘eyeball to eyeball’ to constitute a fair hearing, with clear exceptions such as documentary evidence where the document itself is presented in court or in certain prescribed situations such as involving persons who are physically or mentally disabled, overseas or deceased,” said the attorney-general.

“The legislation would make it explicit for evidence by closed-circuit TV link-ups where participants in the trial would be able to see the person, and the person giving evidence would be able concurrently to see the accused as if all are together.”

Initially the use of the closed-circuit cameras will be confined to cases in the Supreme Court and the Court of Appeal and focus on more serious crimes, such as those involving murder and drugs.

Civil cases and those involving minors would be banned from cameras, said Nicholson.

Harrison-Henry had similarly adopted the position that such cases should not be brought under the new CCTV law.

“We have to move step by step,” said the attorney-general, noting that the cost involved in closed-circuit televised cases was expected to be high.

He praised the development, however, as one that would contribute significantly to removing the fears of intimidated witnesses.

The move, he said, was also predicated on plans to move extradition cases from the purview of Resident Magistrate’s courts to the Supreme Court and the Court of Appeal.

bellanfanted@jamaicaobserver.com