The States Chamber are today debating the implementation of the Draft Covid-19 (Emergency Provisions – Courts) (Jersey) Regulations 202- (the “Regulations”) with a view to ensuring continuity in the operation of the Courts throughout the Covid-19 pandemic. The Regulations are a temporary measure, expiring on 30th September 2020.
The Regulations allow for court proceedings in general to take place remotely, so long as all participants are able to communicate with the Court either by way of telephone or video link. The Court can and will still take the view that some hearings can be adjourned to a time when the current social restrictions are relaxed, however, where this is not appropriate, these Regulations allow for hearings to take place without the need for the parties to physically attend the Court. It is permissible for any proceedings to be audio or video recorded in order to maintain transparency and accurate records.
In addition to the need to reduce personal interactions, the Regulations also take steps, by reducing the quorum for the Superior Number to two Jurats (where it is ordinarily convened by no less than five), to ensure that decisions of the Superior Number can still be made in the event that widespread illness results in a number of Jurats becoming temporarily unable to fulfil their roles.
Furthermore, the authority of a presiding judge to sit alone in certain civil matters would be extended under the Regulations to include some criminal proceedings in circumstances where the judge does not consider the matter appropriate for adjournment. There are limitations to circumstances in which this would be permissible, for example, this would not apply in respect of criminal trials, nor the imposition of sentences. The ordinary requirement for consent from the parties and the Judicial Greffier would be waived for the duration of the pandemic in relation to both civil and criminal matters.
The Regulations also seek to address the difficulties presented in conducting a jury trial in current circumstances. For as long as there is a need to adhere to social distancing guidelines, it will likely be impossible to convene a jury. Currently, where an offence is serious enough to be tried in the Royal Court, a defendant has, in certain circumstances, the right to elect for a jury trial as opposed to an Inferior Number trial (in which the Bailiff sits with two Jurats). The Regulations would require a trial by the Inferior Number even where the defendant has elected for a jury trial in circumstances where it is unlikely to be practicable to assemble a jury by the time the matter is ready for trial, and where the Court considers it inappropriate to adjourn the trial until such time that a jury can be safely convened.
Finally, the Regulations allow for the Licensing Assembly to be constituted by only the Bailiff, Deputy Bailiff, or Lieutenant Bailiff, sitting with five Jurats, in remote attendance. Applications could also be dealt with on the papers, negating the need for in person attendance by applicants.
The continued ability of the Courts to perform its vital functions throughout the ongoing pandemic is essential. These Regulations are a welcome move by the Courts to safeguard that ability and to ensure that they can remain operational, whilst also taking the necessary precautions to protect the health of the Judiciary and all those involved with the Court system. Indeed, some level of provision for remote attendance at limited hearings even post-Covid-19 would likely be gratefully received by many of those routinely involved.