Judges against Judiciary’s position on no return-to-work policy

The content originally appeared on: Trinidad and Tobago Newsday

Chief Justice Ivor Archie –

THE option of in-person hearings will take place “as soon as it is safe to do so,” Chief Justice Ivor Archie has said.

But, at least two judges are not pleased with this position. They want a return to a physical setting.

On Friday, with the further lifting of pandemic restrictions, the Prime Minister announced all public servants will return to work from Monday.

Outspoken judges, Justices Carol Gobin and Frank Seepersad, want the Judiciary to revisit its hybrid policy.

The relaxation of the Government’s covid19 policy will now allow for public gatherings of no more than groups of 25 people who will, once in a public space and place where there is public interaction, have to continue to wear masks.

After Dr Rowley’s announcement in the Parliament, there was a flurry of e-mail exchanges between the Chief Justice and the two judges.

Their conversation was copied to all members of the Appeal Court, High Court, Magistrates’ Court and all Masters of Court.

In his response to Gobin, Archie thanked her for her concern but said the Judiciary’s police on the maintenance of safe zones and access to buildings was under constant review and was guided by the advice of the Judiciary’s medical professional team.

“I have also been continuously seeking and receiving feedback from judges, judicial officers, staff and court users, so I am aware of the various views, which include those who prefer online hearings and remote access, those who are very happy with hybrid hearings and wish those to be the approach going forward and those who like yourself wish to see no change from the old way of doing things.

“We are also in regular touch with judiciaries internationally which are in the main preparing for hybrid situations going forward,” Archie said.

He acknowledged he was aware that some would like in-person hearings to resume and for staff to be in office each day. However, he said, “this must be balanced against the fact that over the past six months we have had 1,148 staff members on quarantine and as of this week we have 54 still in quarantine, 26 positives being monitored and six deaths.

“In those circumstances, we cannot have confidence that introducing staff into shared spaces such as rather cramped judges’ bays would not exacerbate the situation.”

Archie said the Judiciary had a responsibility to ensure safety of staff and “we must also be conscious of their challenges which include public transport and day-care and school-aged children still at home with no other means of supervision.

“I am aware that these are not issues with which we as judges are faced but I am very conscious of the difficulties faced by many members of staff,” he said.

In January, in response to questions on the re-opening of the courts, the Judiciary said in a statement to Newsday, “the courts have sat and services have been delivered every day during the pandemic… Hence the concept of ‘opening up’ is moot.”

It also said it will continue to deliver services electronically and virtually.

The statement also expressed concern for the safety of court users, including those called to serve on juries.

“That then places a very high duty of care on the Judiciary to keep jurors safe. As a matter of fact, it is included on the marshal’s oath.

“To empanel a jury of nine to 18 which are the actual sizes of our juries, we must, by law, gather in Port of Spain, a pool of at least 108; in San Fernando, a pool of at least 36, and in Tobago, a pool of at least 20.

“Of these, we eventually empanel between nine and 18 in each jury and place them to sit for extended hours next to each other and to eat together (for which one must remove one’s mask) and to sit together in a small room for extended periods which are sometimes days.

“In between we let them go home daily, often travelling by public transport and encountering other persons at home and about. They return daily.”

In his e-mail to Gobin, on the issue of witnesses, Archie said he did not wish to transfer the problems associated with enclosed spaces and recirculated air to courtrooms where there are virtual access customer centres.

“I do not share your perceptions about the “integrity of the trial process”. Witnesses can unmask in the VACCs. Have you been using them?” he asked Gobin.

He also assured if any judge wanted unrestricted access to the Hall of Justice and their chambers, he will instruct the Registrar and administrator of the civil courts to allow them but emphasised their staff will continue on its alternative-days roster. Gobin says she intends to return to her chambers and expressed hope her staff will also be allowed.

Civil court judges are soon expected to relocate to the International Waterfront Centre. Last month, Attorney General Faris Al-Rawi said the Judiciary had started occupying Tower D of the Waterfront Centre while the Judiciary is being retrofitted to accommodate criminal courts while jury courts in O’Meara were near completion.

Seepersad, in his response on the exchange of e-mails, said access to justice was a fundamental pillar of a democratic society “and we as judicial officers must be prepared to defend same.”

He said, “I find it difficult to understand how varying views are assimilated when we as a body have not had a meeting on over two years.

“The public deserves open justice and in light of the new directives, I do not understand the position which has been communicated to staff.

“There are many citizens who are unemployed, yet, there are many judiciary staff members, such as ushers, who are being paid but they are unable to discharge work related duties from home.”

He also said fines, possibly in the millions, were not being collected, depriving the State of revenue, eroding the efficacy of the sanctions and undermining the deterrent aspect for breaching the law.

He also expressed reservations about the integrity of the trial process in a virtual setting.

“More importantly, our criminal justice system has almost come to a grinding halt, given the inability to conduct jury trials. How many criminal trials before the High Court have been completed since the advent of the pandemic?” he asked.

Also expressing concern over the temporary restriction on jury trials was Director of Public Prosecutions Roger Gaspard, SC, in an affidavit in support of a suspension of an Appeal Court ruling which now allows anyone on a murder charge to apply for bail.

Gaspard raised the issue of the court’s covid19 pandemic directions issued by the Chief Justice.

Gaspard said since March 2020, jury trials were suspended and this will result in an unreasonable delay for an accused to go on trial.

He said when dealing with bail applications, prosecutors would be unable to reliably advance a firm trial date for any murder accused wishing to have a jury trial.

“…I aver that it would be very difficult for a judicial officer to deny bail with the extant practice directions,” Gaspard said.

On Sunday, the exchange of e-mails continued with Gobin asserting she will “continue to stand on her own and rely only on the strength of her convictions.”