Detained defendants demand system for accessing electronic exhibits

Calls are being made by defence lawyers for the authorities to move swiftly to put plans in place for accused persons in custody or prison to have access to the exhibits from the prosecution, which are being disclosed electronically.

They have referred to the new practice direction, which came into effect on June 28, paving the way for disclosure by electronic method in criminal proceedings. The direction states that “with immediate effect, the primary method of disclosure in criminal proceeding shall be electronic”.

Attorney-at-law Leonard Green, who is president of the Advocates Association of Jamaica, has described the new practice direction as “having the effect of putting the cart before the horse”.

In commenting on the practice direction yesterday, attorney-at-law Anthony Williams described it as “putting something in one hand and cutting off the other hand”.

Reputed leader of the St Catherine-based Clansman Gang, Tesha Miller, recently sent letters through his lawyer, John Clarke, complaining to the authorities about the difficulty he was having in preparing his defence because there were no electronic devices available in prison for him to access the documents.

Green said that while the practice direction evidences a clear intention to ensure that both the defence and the prosecution adhere to disclosure timelines and protocols, it comes with an unfortunate side effect.

“There is no protocol or physical infrastructure in place to ensure that persons charged before the court can reasonably access the material being disclosed in circumstances where some persons charged for serious offences are held in custody, for the time being, ‘at His Majesty’s pleasure’,” Green argued. “It would seem, therefore, that the requisite preparatory framework is not in place to ensure that in the interest of justice, those individuals have proper access to the information purportedly being disclosed electronically.

“When I last checked, prisoners have no access to electronic devices, which inmates are understandably prevented from using for security reasons. The practice directions clearly state that, in Section 3.1 as follows, “With immediate effect, the primary method of disclosure in criminal proceedings shall be electronic,” Green said.

Commenting further, the attorney queried, “Is it that the electronic disclosure is simply an addition to the traditional methods of disclosure that traditionally exist?”

Green said the additional consideration is that all accused persons are “data subjects” for the purposes of the Data Protection Act. He said further that “the documents that are the subject of disclosure are deemed, for the purposes of the act, to be ‘sensitive personal data’, which is described under the act to include “the alleged commission of any offence by the data subject or any proceedings for any offence alleged to have been committed by the data subject”.

Print challenges

Green said there is an absolute need for care in how material is being disclosed electronically so as to ensure that the disclosed material is not transmitted in a manner that could prejudice the rights of an accused person.

“It certainly would be of some value if the practice direction could seek to apply appropriate safeguards for the rights and freedoms of data subject accused,” Green added.

Williams disclosed that there were many defence lawyers facing challenges because they do not have the facilities to print. Another problem is that the disclosed documents might be very, very voluminous.

“So to me, it makes no sense seeing we are going the electronic method, and, simultaneously, the lawyers will be impeded in effectively carrying out their work because they will have to be able to show their clients the disclosed documents, in particular, scene-of-crime documents,’ Williams stressed.

He said that he won several cases by challenging Crown witnesses on what was or was not contained in photographs.

Williams suggested that changes must be made for the lawyers to have access to their electronic devices when visiting their clients in prison because otherwise, it makes no sense. He said he was calling on the authorities to take immediate steps to remedy the situation so that lawyers could have full disclosures and discuss them with their clients in custody.

“If they are not able to do so, it would be an exercise in futility, and it would hamper or impede the lawyers’ proper preparation of the cases,” Williams warned.

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