The Jamaican court system under COVID-19Monday, November 30, 2020
Takeese Gilpin Allen and Adella Campbell
COVID-19 has been disrupting every sphere of human life across the globe. This is due to its contagious nature and the risk it poses to humans generally. Public health concerns have been raised in all industries resulting in a lockdown in most sectors. The court system has not been spared.
The measures adopted to stem the spread of the novel coronavirus have affected criminal, civil, and administrative courts, and severely impacted the holding of court hearings, the processing and serving of court rulings, as well as court enforcements.
By and large, most countries' court systems have suffered some measure of lockdown in 2020. This was to ensure the safety of users of the courts and in adherence to international safety protocols. In Australia, for example, the Family Court and the Federal Circuit Court resumed in-person work on a staggered basis in June 2020. This they felt was an appropriate step for the courts to achieve pertinent health and safety considerations for users of the court system and communities, especially as it relates to minimising contact with infectious individuals. In addition, special arrangements were made to achieve a social distance of 1.5 metres in public places identified by floor and seat markings and supported by communication through posters placed at strategic places in court buildings. Hygiene practices such as regular hand washing and non-touching of the face were observed and keeping buildings clean was of utmost importance.
The US also shared similar experiences to other countries in that “COVID-19 changed the manner in which attorneys worked, particularly litigators. As a practical matter, depositions, oral arguments, witness interviews, and settlement negotiations had to take place by phone or videoconferencing, altering the dynamics of the interaction, hindering the ability to assess witness credibility, and requiring the use of other subtle tools of persuasion and communication.” (Jackson Lewis, 'Employment Litigation post-COVID-19 & Other Class Action Developments (2020) X(227)' The National Law Review) Of note also is that uncertainties surround the possibility of trial resumption.
Within the Jamaican context, strict measures were established to access the courts. For example, Supreme Court guidelines included, inter alia, that…“All persons entering any court building will be required to: (a) wear face covering which covers nose and mouth, (b) submit to temperature checks by use of a hand-held thermometer, and (c) sanitise hands using the alcohol-based solvent provided at the entrance to each court building. Any person who does not comply with… will be denied entry to the court building. Any person displaying flu-like symptoms or whose temperature exceeds 98.6°F (37.0°C) will be denied entry…All court users must at all times seek to maintain a minimum distance of six feet between themselves and any other person in their immediate vicinity. This is applicable to both persons waiting to gain entry to the courts and to persons who have been granted entry... Efforts will be made, as far as possible, given the resource limitations... to preserve security and the rules relating to privacy of certain matters, to facilitate public access to proceedings in open court by virtual technology... Litigants and witnesses attending court are encouraged to take with them documentation indicating the name and reference of the case or matter in which they are involved, as well as some form of identification. This will expedite processing as persons enter the court building.” (https://supremecourt.gov.jm/content/health-guidelines-governing-access-all-courts-jamaica) These measures, no doubt, affected the normal functioning of the court.
Despite having these measures in place, and utterances by various stakeholders in the court system, there is a dearth of information on the extent to which COVID-19 has affected the court system in Jamaica. Also, the constitutionality of measures adopted to ensure court hearings during the pandemic is not fully understood.
Motivated by enquiring minds, attempts were made to capture the experiences and perceptions of jurists and court staff regarding the impact of COVID-19 on the functioning of the Jamaican court system. This was done during the months of July and August 2020. Data were obtained from individuals interfacing with the court system at the level of the Parish Court, Supreme Court, and Court of Appeal. In speaking about their experiences with the court system, subjects shared both the pre-COVID-19 and present experiences.
Staffers advised that at the start of the pandemic stakeholders meeting were held, activities of the courts were curtailed, and subsequently public health measures were implemented. One interviewee said: “We had stakeholders meeting with the chief justice and other members of the justice system since the court system was suspended in March 2020 and reopened in June 2020. During suspension only emergency matters were heard by court via telephone. In respect of reopening on June 1, any matter that involved too great a density of individuals in the court remained suspended. In-person hearings were done once social distancing was possible, but matters such as jury trials remain suspended until the following court term.”
In talking about their perceptions of COVID-19 on the court system, another interviewee commented that: “It has been both good and bad effects…so the period when the court closed would have contributed to the backlog. [But] it has had the benefit of pushing the court more quickly than would have originally taken place to a position of many more videoconferencing and teleconferencing... Prior to COVID-19 only the Court of Appeal was doing telephone hearings…”
Further articulating on the impact of COVID-19 on the court system, one interviewee said: “In general sense, certain things have slowed down a bit…but it has caused members of the court system and wider justice system to be a bit more innovative. Example, in terms of attorneys interfacing with the clients who are in custody for criminal matters, there has been initiatives to have them use designated phones or communicate via dedicated video link from a location, either at the prison or near the prison, and also in respect of attendance at court via video link from designated locations rather than being physically present…”
In describing measures adopted by the court system, one interviewee indicated that there was a review of “managerial competencies and selected directors [were used] to oversee the Home Circuit Court, Court of Appeal… Staff were assigned as usual to cover all areas, including those working from home. In June we went into full gear to utilise the virtual platform Zoom. All meetings with the chief justice were done via Zoom, also meetings with Jamaican Bar Association. Judgements were delivered virtually, for example, the Vybz Kartel appeal case...”
Constitutionality of measures adopted?
One jurist felt that, “The difficulty arises in the context of open courts matters. It is an open question as to whether or not open court matters can properly be heard via electronic means without members of the public having ready access to observe the proceedings…” Nonetheless, another concluded that the measures are all constitutional.
On the matter of possible legislative changes that are required to make the court system adaptive to changes stimulated by COVID-19, one jurist argued that, “I think we need to change our laws as it relates to [Supreme Court] procedure so we can use technology. The RM [Resident Magistrates/Parish Court] rules are really old, so they could definitely do with some changes.” Yet another said, “We have had some amendments to the courts administrative process, the chief being the Special Measures Act, where you can have video link, where you can have the accused beamed into a court room. We have amendments to the Criminal Justice Administration Act, where you get an allowance… if you opt to plead guilty. So I think we already have a raft of administrative measures allowing for functioning of the courts before COVID-19, but enhanced once the COVID [manifested]. I think the whole potential for greater use of technology is being manifested under COVID.”
Unequivocally, changes to the functioning of the Jamaican court system were necessary in order that the courts could continue their work under COVID-19. Additionally, the Jamaican experience and response mirrored that of other countries across the globe, both in direct matters and support structures.
While electronic hearings via Zoom and teleconferencing are now widely held, this has not averted the growth in the backlog of cases resulting from the suspension of jury hearings. Not to mention further scrutiny of this means of hearings, since its constitutionality may be open to challenge.
All things considered, however, Jamaica compares well with other countries of the world. With this in mind, it may be prudent to establish and implement programmes as well as a supporting legislative framework to sustain gains made and mitigate further effects of COVID-19, or future disasters/pandemics, on the normal functioning of the local court system.
The above is an excerpt from a study by Adella Campbell, a student of law, guided by Takeese Gilpin Allen, a lawyer and lecturer in the Faculty of Law at the University of Technology, Jamaica. Send comments to the Jamaica Observer or firstname.lastname@example.org.