The Jetsons was a revolutionary animated television show set in 2062. For a show that premiered in 1962, it was able to showcase numerous technologies that we use today. These include flat screen televisions, smartwatches, robotic vacuums, and while we have yet to perfect Rosie the Maid’s robotic technology, there are some robotic cleaning devices that make life easier. However, the biggest takeaway from the Jetsons was the use of video calls and conferencing. While video conferencing platforms have been around for over two decades, the extent to which these platforms were utilized was limited to long-distance family calls and conference meetings with persons in different countries. Zoom, Webex, Skype and other video conferencing platforms have seen an increase in usage since the start of the COVID-19 pandemic. Platforms that were once used for the occasional group call, long-distance family meeting or long-distance relationship call is now used for work meetings, client interviews and trial proceedings. Looming lockdowns often initiated without advance notice saw court closures around the world. Without access to the court system, many individuals, especially those who were in custody, were unable to have their matters heard, and for some, have their matters heard within a reasonable timeframe. Therefore, the Court saw fit to implement various practice directions and protocols to allow matters to be heard remotely while complying with COVID-19 protocols.
The Judiciary of The Bahamas by virtue of Practice Direction No. 3 of 2020, addressed several issues that arose from the COVID-19 pandemic and the Court’s continuing function in its midst. In particular, the use of remote hearings was addressed. The Practice Direction sought to give guidance to legal Counsel, such as using neutral backgrounds during a remote hearing, ensuring that his / her face is visible and that notifications are turned off or muted. The Practice Direction also gives the presiding Judicial Officer the opportunity to determine the method for conducting the remote hearing, taking into consideration the applicable law, rules and protocols, and having regard to the interest of justice, public health and the ability to maintain COVID-19 protocols. The Court is to also consider the nature of the matter, any witnesses’ needs, issues with audio / visual technology, and any issues surrounding public access to the hearing. However, the Practice Direction also contemplates Counsel’s resistance to the use of remote trials / hearings and provides Counsel with the opportunity to make submissions should they object to the specific mode of disposition determined by the Judicial Officer. The Practice Direction also makes provisions for the electronic filing of documents, requesting hearing dates and transmitting legal submissions. The Bahamas Court of Appeal also modified the way it conducted hearings, as stated in its Practice Direction 1 of 2021. This Practice Direction states that the Court of Appeal (Amendment) Rules, 2020 Rule 4(1)(a) makes provisions to facilitate the hearing of appeals by way of video conferencing. Similar provisions have also been made for electronic filings, transmitting legal submissions electronically, and electronically scheduling hearing dates for the Court of Appeal. Similar practice directions and protocols were implemented at the Eastern Caribbean Supreme Court. These protocols were known as ECSC COVID-19 Emergency Measures Protection Direction and has had several re-issues since its implementation on March 25, 2020, with the most recent being implemented on April 21, 2021. Some of these measures include the use of a portal for filing documents electronically and discouraging in-person hearings in favour of remote hearings instead. It is noted that their measures are similar to those found in the Practice Directions in The Bahamas.
Different jurisdictions have made it a point to implement certain measures and protocols, which one can say indicates that remote hearings and trials are here to stay. However, with the implementation of new processes, there will invariably be hiccups and practical challenges. During a February 9, 2021 hearing, Rod Ponton, a Texas lawyer appeared in a Zoom call as a cat. Unfortunately for Mr. Ponton, he was unable to change the filter while on the call and sought to inform the Court that “I’m here live. I’m not a cat.” In another incident, a 21-year-old man accused of assaulting his girlfriend logged into the virtual court from inside the same home as the alleged victim. There was a prior no-contact order between the accused and his alleged victim. The assistant to the prosecuting attorney brought the discovery to the Court’s attention after viewing the alleged victim’s behaviour during the hearing. Authorities were called and the accused was removed from the home. The judge noted that this was a first for him, as this was not an issue they previously had with live court. These incidents provide some insight into potential challenges that the Courts may face with remote hearings. Other practical issues the Courts may face include unstable internet connections and unreliable power sources, especially during the summer months. Additionally, unlike in-person hearings, remote hearings may, at times, be too informal, with Counsel forgetting to mute their mics, not appearing appropriately dressed, or signing on late for their hearing.
The implementation of various protocols and measures enabling Courts to conduct hearings remotely is a step in the right direction. Nonetheless, facilitating training for all staff on the use of these platforms will make the process seamless from start to finish. Therefore, ensuring that these measures are followed takes collaborative efforts by all stakeholders.