SUPREME Court judge Justice Vinette Graham-Allen has urged the Jamaican Bar Association to put in writing the grouses of defence bar members who say there has been resistance by correctional facilities to them taking electronic devices when meeting with their clients, despite the recent shift towards electronic disclosure by the Crown.

Chief Justice Bryan Sykes on June 28 this year issued Practice Direction Number 2, Disclosure by Electronic Method (Criminal Proceedings), which applies to all trial proceedings in the Home Circuit and Rural Circuit Criminal Courts. The directions serve as a guide for the prosecution in discharging its disclosure obligations and seek to enable greater efficiency and effectiveness in court proceedings. This practice direction will continue in effect until revoked or amended. “Disclosure by electronic method” includes disclosure by way of e-mail, thumb drives, CD-ROMS, and hyperlinks. “Disclosed material” includes any information, document, data, or other material that the prosecution has a duty to disclose.

According to Graham-Allen, the practice directions were issued following her advocacy based on the complaints of defence attorneys and her experience in the Case Management Court, particularly in gang matters which involve multiple defendants.

Declaring that “those dark days are behind”, Justice Graham-Allen said, “We have taken some time to get there but that is where we are; the judiciary is an arm of government who now decides that we are going to do things this way, electronically. This is the way we are going.

“I’ve had this case and about three others coming up so thank goodness that they heard my cry and hence the practice directions,” Graham-Allen told those at a case management hearing for 24 alleged members of the Tesha Miller faction of the Klansman Gang, last Thursday at the Supreme Court in downtown Kingston.

“The lawyers complained. When I complained, the practice directions were made and this is where we are going [and] there is no turning back. The court has a duty,” Graham-Allen said in inviting defence attorney Tamika Harris, who is chair of the Criminal Practise Committee of the Jamaican Bar Association and also a member of the Criminal Case Management Steering Committee of the Courts, to say whether the prisons had shifted.

According to Harris, the Jamaican Bar Association has had to “dialogue with the persons from the prisons but they are very resistant to our cry” since the directions were issued.

Said Graham-Allen: “But the chief justice issued a practice direction, that is it. No no, the Bar Association needs to write to the honourable chief justice because there is a steering committee which he has commissioned and it will be dealt with. What I am saying is, ‘Those dark days are behind us because this is the way we are going,’ and when I did my investigations, the correctional institutions now have the means to facilitate this; they have gotten the infrastructure. Write to the chief justice; if there is any resistance it must be brought to the attention of the honourable chief justice.”

Harris, speaking with the Jamaica Observer afterwards, said “we were alerted to the fact that the way forward is electronic disclosure. From the Bar’s perspective that is the modern, efficient way to move forward but we were thinking that other infrastructure needs to be put in place before that. Most of the persons charged for criminal matters are receiving legal aid,” she said, stressing that the issue is one which must be resolved.

“Disclosure is something very important. The prosecution has protocols that dictate how disclosure must be done and there is case law that speaks to the importance and relevance of disclosure, so we are saying if you are going to disclose something on an accused man it must be in a format that he can access. He cannot access it if we defence counsel cannot bring our devices to the institution; he cannot access, for example, if he has a lawyer who has just left law school for example or who cannot afford data,” she pointed out.

“Lawyers are not born with money. You have to start working before you have money so the lawyer who has just left law school and is doing a criminal matter might not have a tablet, might not have the resources to pay to print the documents — and the documents are voluminous — so the cost that the Government normally pays is now shifted on the defendant, and we don’t think it should be. The burden shouldn’t be his,” the defence attorney argued further.

Added Harris: “When a person is charged he doesn’t have all the resources to hire his own investigator, for example, his own forensic team to do cell site data analysis. The State has all the resources and all we are asking for is disclosure in a format all defendants can properly access; that is our concern right now but they are making it look like we are ridiculous. When we go to the prisons they have jammed the system so you won’t be able to access Wi-Fi, so you have to make sure that you download it before going there.”

At the same time, she said there are multiple issues members of the defence bar wrestle with in relation to penal facilities.

“There is a lot more. You go to a jail, there is nowhere for you to sit and have a conversation with your client, you have to stand at the jail cell — so even if you have your device, there is nowhere to rest it,” she told the Observer.

Last June, a stand-off between the leadership of Tower Street Adult Correctional Centre in downtown Kingston and some members of the legal fraternity over a restriction on Saturday visits to clients was averted after the leadership there made a concession.

The attorneys, several of whom spoke with the Observer, had protested the decision to bar them on Saturdays, pointing out that other members of the public have been allowed to visit. They said the arrangement was contrary to what was agreed on in 2021 between Department of Correctional Services (DCS) and Jamaican Bar Association. According to DCS in that correspondence, attorneys are permitted to visit correctional facilities Mondays to Fridays between 10:00 am and 12 noon and 2:00 pm and 3:00 pm. On Saturdays it said attorneys would be allowed to visit between 10:00 am and 12:00 noon, with the caveat that “extenuating circumstances” could cause these allowances to change.

The attorneys have also continued to lobby for proper facilities at St Catherine Adult Correctional Centre and Horizon Adult Remand Centre to accommodate meetings between clients and counsel so as to communicate in confidence and privacy without interference or limitation. The Corrections Rules state that reasonable facilities should be provided to the legal adviser of an inmate which will allow the inmate to remain in the sight, but not in earshot of a member of staff. They at the time had also urged the DCS “to consider a more flexible approach in relation to its rules against attorneys being allowed to take electronic devices (such as laptops) inside the prisons, pointing out that relevant evidence is often disclosed on a compact disc and that the data is often voluminous, making printing an expensive undertaking”.