COVID-19 Reports on Latin America and the Caribbean: No. 53
The Jamaican justice system has responded in a variety of ways to the virus. The Disaster Risk Management Risk Act (Enforcement Measures) of March 16, 2020 marked the first of 36 Acts and counting enacted to fight the effects of the virus by the justice system. The Act detail issues relating to the entry of visitors as well as persons ordinarily resident in the island, intra-island travel and curfews, work days and others.
As Jamaica is still a Constitutional monarchy, the court system is configured as follows – the Privy Council, sitting in London as the final appellate court, there is a Court of Appeal sitting in Jamaica which hears criminal and civil appeals, there is a Supreme Court that has civil and criminal jurisdiction for bench and jury trials and there is a Parish Court which has civil and criminal law jurisdiction. The civil jurisdiction in the Parish Court has a limit of $1m Jamaican dollars that can be dealt with and or awarded and the criminal jurisdiction has a maximum of five years as a sentence.
In the Court of Appeal
By virtue of the Practice Directions for the Court of Appeal (which usually sits in two Panels, each with three Court of Appeal Judges) all appeals are being conducted by teleconference or video conference as deemed appropriate.
Regarding the filing of “bundles” i.e., the documents related to a case, these are now being filed electronically. This is a 360 degrees shift. Previously, all such bundles for cases before the Court of Appeal had to be filed physically at the Court of Appeal Registry.
Now parties can attend court remotely and also documents can be filed electronically. The legal infrastructure for such electronic filing had been in existence but had not really been utilized or embraced.
In the Supreme Court
The Practice Directions (there have been several over the last year) relating to criminal cases in the Supreme Court of Jamaica are extremely important as previously in Jamaica, almost every aspect related to court business had to be conducted in person. The onset of the pandemic has forced the court system to move apace, notably, there was already the framework in some areas, but for the most part there was none. Initially, in response to the pandemic, all courts were closed for a few days and then the Judiciary took steps to safely conduct court with the necessary protocols related to social distancing, sanitizing and limiting the number of persons allowed on court buildings.
There have been at least 10 Practice Directions that deal with the proceedings in court. These details have been summarized and or continued in the latest, Practice Direction 13 of 2021:
There was no ceremonial opening of the court, that usually begins every court judicial term but in light of the pandemic that was cancelled.
Potential jurors who had been summoned for jury duty (beginning March 2020) have been excused and are so excused until there is further notice. There is no penalty for not presenting oneself for possible jury selection. Therefore, there have been no jury criminal trials (almost all civil trials are done by Judge alone- Bench trials) since March 2020 in Jamaica. There has been much discussion about this in various legal and other societal circles as to whether or not defendants’ rights to a trial within a reasonable time are being infringed.
The law in Jamaica provides that there can be “agreed Bench” trials for cases where the prosecution and defense have agreed to the criminal trial being conducted before a Judge sitting without a jury where ordinarily, the Judge would sit with a jury of twelve or seven dependent on the type of criminal case. To date, no such trials have been held.
The law already provides for Judge alone trials for illegal possession of firearm and ammunition offenses and so those trials have continued. This has been however in the court room, i.e. open court and so all are present – Judge, prosecutor (also called the Crown), defense attorney, defendant, witnesses, court reporter, and police officers.
There have been some “remote hearing” specifically relating to civil proceedings taking place by means of telephone conference call, video conferencing and other acceptable forms of electronic communication. So, there have been hearings where the Judge is in the court room or another location and the others, the claimant’s attorney, defense attorney, claimant and defendant as well as witnesses are at their own locations.
Where a defendant is in custody and wishes to enter a plea of guilty, that matter is being accommodated, even if a trial or other date was previously set. This is to expedite such matters, notably defendants can avail themselves of the plea agreement legislation as well as of the sentencing guidelines that offer a bit more certainty in terms of custodial sentences. Generally, the sentencing should be in open court with all present unless it is not practicable (health concerns, etc.) or there is another pressing reason. Where Social Enquiry Reports are requested to investigate the defendant, these requests should be sent to a central court email for processing. In the past, such requests were done in court and the probation officers were present. Now, after completing the reports, the probation officers also join remotely.
In the Parish Court
The Parish Court Judge sits alone and so the trials in these courts have continued for both civil and criminal jurisdiction. These courts have attempted to implement the same health protocols as in the Supreme Court and Court of Appeal. Some of the actual court rooms are small and so the challenges have had to be met creatively. There have not been many videoconferencing or teleconferencing of cases in these courts.
Importantly, there are persons whose access to the court system has been adversely affected because their jury trials have not taken place. Others have been able to access the court from long distances or even overseas, whereas previously they would have had to be present in Jamaica. That has been a positive for the court system, recognizing that the aid of technology can only improve the justice system and ensure greater access for all.