COVID-19 RESUMPTION OF GRAND COURT CRIMINAL TRIALS

PART I – JUDGE ALONE TRIALS

Commencement of Judge Alone Trials

Effective May 21, 2020, Grand Court Judge Alone Trials have resumed. The management of these cases will be overseen by the presiding Grand Court Judge within the context of the protocols set out below.

Commencement of Jury Trials

Jury trials have been postponed to commence on 1 July 2020 noting that this is dependent on the local circumstances and that satisfactory arrangements for social distancing will have to be put in place, particularly with respect to the selection, trial and deliberation processes. See PART II to this protocol for further details relating to Jury Trials.

Social Distancing and Personal Protective Equipment Requirements

• All persons entering the court building will be required to wear face masks and to sanitize their hands.
• Persons are to continue to wear masks for the duration of their time in court buildings.

• Defendants and witnesses entering the court building will be provided with masks by security
officers.
1 A separate protocol is published for the Summary Courts.

• Persons are to keep a minimum of 2-meter distance from other persons at all times and will follow the directions of the Court Marshalls for entering, moving around in and exiting the court buildings.
• When speaking to another person, save for during actual court proceedings, persons are required to wear masks.
• Court Marshalls will be supplied with and are responsible for ensuring that personal protective equipment (PPE) is available for all court users and staff, if necessary. This will include:
o Hand Sanitizer

o Masks

o Gloves

• The Head of Security is responsible for providing PPE for prisoners in custody.

• Social Distancing Form for trials: A standard form attached to this Protocol as Appendix 1 must be completed for each trial. The form will set out the required social distancing protocols for each trial depending, among other things, on which court room will be used. The form will be completed and circulated by the Case Progression Officer at least 2 days before trial and must be provided to the Prosecution and Defence.

Maximum Number of Persons in Court Rooms

Schematics for each court room will be posted at the entrances to court buildings and inside each court room for guidance. The maximum number of persons permitted in a court room at one time will be as follows:

• Court Room 1 – 20 persons

• Court Room 2 – 20 persons

• Court Room 3 – 9 persons

• Court Room 4 – 8 persons

• Court Room 5 – 25 persons

• Court Room 6 – 10 persons

• Court Room 7 – 6 persons

• Constitution Hall – 35 persons

Attendance of Prosecution and Defence Counsel

The primary position is that prosecution and defence counsel are required to attend court in person. Counsel may however, apply in advance to the trial judge for permission to attend a proceeding (trial or otherwise) by way of video link. This will be decided on a case-by-case basis, including, by reference to the number of persons expected to be in the court room.

Social distancing protocols for counsel will be:

• If more than one counsel represents either side, only one lead counsel for either side may sit at the Bar. They are to be seated at opposite ends of the front row.
• Junior counsel may sit in designated seats in the second row at the Bar. A maximum of 2 junior counsel will be permitted, sitting 6 feet apart.
• If there is an issue with numbers in the court room, the trial judge may require junior counsel to attend via video link.

Defendants

Custody Defendants: A maximum of 2 defendants may be transported from HMPrison at any one time for the purpose of social distancing and management of defendants in the cells. The Criminal Registry is to coordinate with the Grand Court and the Summary Court regarding the requirements for production warrants and the scheduled time defendants in custody are to be produced.

Subject to social distancing requirements (2 meter separations and wearing of masks), defendants in custody of HMPrison will wait in the cells until called up to a meeting room to confer with counsel or into court. All staff operating in the cells will follow specific guidance issued to them to minimize the risks posed by the virus in their working environment. Counsel may take instructions from a defendant in custody by:

i. Taking instructions in court from the defendant in the dock (with both persons wearing masks). This will need to be arranged with the judge through the Case Progression Officer and court staff.

ii. Phoning the number of a mobile phone which will be made available to the defendant to use in
the cell. The number will be made available by the Marshall attending to that trial.

Bailed Defendants: Prior to trial, defendants on bail are to wait in the jury room outside Court 1 where they may confer with their counsel. If defence counsel is not happy with the arrangements, a request may be made to the Marshall in attendance and another area will be available where conferences may be held in private, subject to social distancing requirements.

All Defendants will be supplied with masks (if needed), gloves and hand sanitizer upon entering the court premises.

Witnesses

Local witnesses: All local witnesses will be required to attend court for the purposes of giving their evidence at trial.

All witnesses will be given a scheduled time to attend court so that where practicable only one witness for any trial will be in the building at any time.

Witnesses should report at the Main Court Building (Building 1) and upon entry will be met and taken directly into the designated court room or if requested by the respective counsel, to a conference room. If counsel is not satisfied with the degree of privacy, a request may be made to the Marshall for a more private conference room.

The security officer will supply witnesses with masks upon entry into the Court Building (if needed).

Overseas Witnesses: will have their evidence taken via video link, subject to the directions of the presiding judge.

Witnesses With Health Risks: A party responsible for calling a witness with a health risk is responsible for making an appropriate application in advance (usually by the last CMC) to the presiding judge for the taking of the evidence of that witness.

Court Stenographers

As agreed between the Court Administrator, the Clerk of Court and the Stenographers, the following protocol will be in effect:

• Court Stenographers will as usual attend in person at all criminal trials in the Grand Court and will observe the social distancing protocols.
• Court Stenographers will attend on a rotational basis to take evidence. Out-of-court work will be completed through remote working to ensure social distancing at the workplace.
• Any requests for confirmation of any aspect of the evidence by reference to draft transcripts may be made to the Stenographer in keeping with Practice Direction 3 of 2017.

Case Management

There are now in place arrangements for filing documents, including trial bundles, witness statements and disclosures by email, SFTP folders or by Dropbox with the Criminal Registry. This must be done by the Crown, RCIPS and the Defence in keeping with Practice Direction 5 of 2020, in particular Practice Directions 5B, 5E, 5F of 2020, respectively.

Trial Bundles

• All Trial bundles are to be submitted electronically to the Criminal Registry pursuant to the Practice Directions for entry into the Case Management Database. A copy of the electronic trial bundle is also to be supplied to the Case Progression Officer for presentation to the judge. Trial bundles should be compiled jointly (as explained below), by the prosecution and defence. They
are to be transmitted electronically by the ODPP in accordance with Practice Direction 5B of 2020.

• For the purposes of each trial, a joint trial bundle is to be prepared. The prosecution is responsible for providing the trial judge with the joint trial bundle at least 10 work days before the trial. Any additional materials to be submitted with the trial bundle by the Prosecution or Defence Counsel should be submitted to the Criminal Registry no later than 36 hours before trial for purposes of amendment to the bundle and submission to the judge. • Bundles and papers brought to the court are potential conveyers of COVID-19. Bundles should be compiled in wipeable binders and handled by applying appropriate sanitization measures. Bundles must be delivered to the court in sealed and sanitized envelopes or boxes.

Exhibits

All documentary exhibits must be submitted to the court electronically in advance of the trial.

Where exhibits must be brought physically to court by the prosecution, the RCIPS or the defence, this must be done at the direction of the judge. All parties have an obligation to ensure, prior to bringing any exhibit to court, that it is properly sanitized for submission to court.

Prior to acceptance of exhibits, Court Marshalls are to enquire if the items have been sanitized.

Any exhibit retained by the court must once again be sanitized by the Court Marshall and sealed before it is delivered to the Criminal Registry/ Deputy Clerk of Court, to be locked in the vault.

If an exhibit is retrieved from the vault for court use and is required to be returned to the vault, it must be sanitized by the Court Marshall before being returned to the Criminal Registry/ Deputy Clerk of Court for return to the vault.

Live Stream and Password Zoom Access to Criminal Cases

In keeping with the precepts of open justice, all criminal proceedings in all courts will be live streamed to Constitution Hall (the Town Hall) or Court 4 where they may be observed (without being recorded) by members of the public on the first come, first served basis and in keeping with social distancing requirements.

Upon application to the Court Administrator, password access to the Zoom hearings will be given to members of the press on a daily basis.

The presiding judge may, however, direct that the proceedings not be live streamed, nor password access be given for reasons to be stated for the record. As far as possible, the position should be shown in advance of the commencement in the Lists when published.

Setting up Zoom Hearings

Court Marshalls, Personal Assistants and the IT Department have distinct responsibilities for supporting zoom hearings.

• Zoom Form: There is a standard form for setting up zoom hearings which must be initiated by Personal Assistants to the Judges. Personal Assistants are to complete the form and submit it to the IT Department no later than 24 hours before the hearing.
• Passwords: Passwords are provided only to participants identified on the completed form, or to accredited members of the press.
o Parties & Legal Representatives: Parties and their legal representatives who are approved to access a zoom hearing will be provided with a password.
o Press: Members of the press who wish to have a password to observe open court criminal proceedings are to contact the Court Administrator for registration to access open court zoom hearings. The press should also consult the Judicial Website under the “the Media” portal for access to live streaming when this is provided on the website.

• Logging On: In the event that there is an issue with a party logging onto the hearing on that day, the Personal Assistant or the Court Marshall may be contacted by the party to assist them with logging in.
• In Camera Proceedings: Only those persons authorized by the judge may have password access to “in camera” hearings. On the direction of a judge, password access and live streaming of cases will be stopped for “in camera” hearings (ie proceedings that are not open to the public). It is the responsibility of the Personal Assistant (in the case of chamber proceedings) or the Court Marshall to liaise with the IT Department to confirm compliance with the directions before the “in camera” proceedings start.
• If any technical difficulty arises, persons should contact [email protected]

Personnel and Other Arrangements for Live Streaming of Cases

Court Marshals and the IT Department have distinct responsibilities for supporting live stream service.

Designated Court Rooms: All open court hearings are to be live streamed to a physical location within the court precincts to accommodate public viewing of court cases. For the time being, the location designated for the live streaming of daily court hearings is either Constitution Hall or Courtroom 4. All efforts are to be made to ensure that on a daily basis, public live streaming is accessible to the public through one of these courtrooms.
Role of the Chief Marshall: The Chief Marshall or his designate shall advise the IT Department by 4:00 pm on the afternoon before the day of the hearing of the location for the live stream, and the list of “in camera” proceedings to be held at various courtroom locations. This information should be communicated through a single email to [email protected] no later than 4:00 pm.
Court Marshalls: Court Marshalls are responsible for advising members of the public on the location of the live stream hearings which are open to the public and, with the assistance, if needed, of the Security Officers, for maintaining access limited to the level required for social distancing.

• Court Marshalls are responsible for formally notifying parties that hearings are live streamed when court convenes.

• Court Marshalls are to consult with Judges or their Personnal Assistants in the event that the court adjourns open court and convenes an “in camera” hearing.

• Court Marshalls have the responsibility of notifying the IT Department that an open court has adjourned and that live stream is to be retired to allow for “in camera” proceedings.

PART II – JURY TRIALS

Commencement of Jury Trials

As already mentioned, Jury Trials have been postponed to commence on 1 July 2020, noting that this will be dependent on the local COVID-19 circumstances and satisfactory arrangements for social distancing, particularly with respect to the jury selection, trial and deliberation processes.

Overarching Objective

During the COVID-19 environment a paramount objective will be to facilitate jury trials in an environment that is safe to all persons and that is fair to the defendant.

Holding of Jury Trials

Jury Trials for the time being are to be conducted in Courtroom 1 (in Building 1) or Courtroom 5 (Building 2).

The trial judge, having heard any submissions, will have the final say as to the procedure to be adopted. The following procedure will operate as guidance:

• Location of Jurors in the Court Room: Part I of this protocol sets out the maximum number of persons allowed in Courtrooms 1 and 5 respectively. Courtroom schematics will depict social distancing in the relevant courtroom and the Case Progression Officer in consultation with the presiding judge, will designate the seating areas for jurors. Jurors will be directed to their seats by the Court Marshall.
• Defendants: A maximum of 2 defendants may be seated in the dock, 6 feet apart. Where there are more than 2 defendants in a trial another location will be identified to seat the additional defendant(s).

Part I Protocols apply to Part II
Where applicable protocols set out in Part I apply to Part II.

Jury Empanelment
In keeping with section 10 of the Judicature Law (2013 Revision), the size of the jury pool for empanelment of juries for the September 2020 session will be 100.

Location of the Jury Pool to Await Empaneling: Due to social distancing requirements and protocols regarding maximum courtroom accommodation during the jury empanelment process, jurors are to be directed as follows:

• Arrival of Jurors: Jurors upon arrival at the Court House are to attend at the meeting area at the rear parking lot of the Main Court House (Building 1) under a tented area, to be directed to their appropriate courtroom locations for the purposes of jury empanelment;
• Empanelment Locations: The primary location for empanelment of jurors will be Courtroom 1, where the presiding judge will preside. Jurors are to be disbursed in groups for roll call and empanelment as follows:
o Courtroom 1 – Maximum 20 jurors

o Courtroom 2 – Maximum 20 jurors

o Courtroom 5 – Maximum 25 jurors

o Rear Parking lot tent – Maximum 35 jurors
• All locations will be linked by video-link to Courtroom 1. For purposes of the roll call jurors other than jurors located in Courtroom 1 will have their images and responses live streamed to Courtroom 1. Absences will be recorded and noted by the trial judge by report from the Marshall at the respective Courtroom.
• The standard informational video recording will be played for the entire array (pool) of jurors at their various locations. The names of witnesses will be read aloud from the back of the indictment or as identified by the defence, and other relevant information communicated to the entire array of jurors before the selection process begins. The identity of the defendant(s) will be revealed to the entire array before the selection process begins. This is all to ensure that jurors who may be conflicted can so declare no later than when called to be sworn, and jurors will be so advised by the Grand Court Clerk.
• For the selection process, the images of jurors not present in Courtroom 1 will be live streamed by the close-up Polycom cameras to Courtroom 1 where the prosecution and defence can observe. It is desirable that the defence and prosecution see the entire array of jurors before the selection process (balloting) begins. When a juror’s name is selected, the juror will be escorted to Courtroom 1 (or another Courtroom) where the trial will take place for the purpose of empanelment (to be sworn) if not then challenged successfully. If not already in Courtroom 1 (or another courtroom of the trial) each juror will come into the courtroom one-by-one, escorted by a Marshall when his or her name is called.
• For the taking of the oath/affirmation each juror will be presented with an Holy Bible in a wipeable cover or a wipeable card (in the case of affirmation).
• When empaneled, each juror will be shown to a designated seat, either in the jury box or elsewhere around the courtroom in keeping with appropriate social distancing requirements.

• Face masks will be made available for the jurors who should wear them while in the building (except during the swearing in process).

• Counsel may wear face masks when not speaking.

• Hand sanitizers/wipes will be available for the jury and counsel.

• Opening and closing speeches may be made from the witness box as this will give the best view of the jury seated around the courtroom.

• Each juror will be given a wipeable clipboard on which to write. The Indictment should already beon each clipboard.

• If a jury bundle is needed, one for each juror should be prepared and agreed by the prosecution and defence in advance and presented in a wipeable folder.

• Once the court is assembled for trial, social distancing will make it difficult for anyone to move around the courtroom. Counsel will need to ensure that everything is ready at the start of each session of each trial when they enter the courtroom and the jury is brought in.

• A copy of a witness’ statement should be available for the witness in advance of testifying. This can be handled by wearing gloves. Alternatively, it may be preferable for the counsel responsible to show an electronic copy to the witness beforehand or in a meeting room before the witness testifies.
• The court is likely to break every 75 minutes to allow participants to move around and the courtroom to be ventilated.

Jury Retirement and Deliberations

• Juries of no more than 7 will be escorted to the large conference room, 4th floor Building 3 for retirement for their deliberations, in the care of the officers sworn to maintain their privacy and while observing social distancing.
• Juries of more than 7 (up to 12) will retire in their respective courtrooms of trial for their deliberations, in the care of the officers sworn to maintain their privacy for their deliberations.

Jury Breaks, Breaks for Legal Argument, Jury Deliberation
Juries of no more than 7 will be escorted to the large conference room 4th Floor Court Building. 3 where they may remain during breaks. During the periods when legal arguments are being heard in the absence of the jury, the trial judge will advise the jury where to retire. The trial judge will advise jurors to retire for deliberations in the courtroom itself or another appropriate location to ensure minimum 6-foot social distancing requirements, in the custody of the officers sworn to maintain their privacy.

Juries of 12 will retire in the respective courtroom for deliberations or to another suitable area designated by the trial judge, in the custody of the officers sworn to maintain their privacy for their deliberations.

Hon Richard Williams

Acting Chief Justice

8 June 2020