Crowded courtrooms, COVID-positive witnesses cause no concern for Courts CEO

The CEO of the Court Services Agency (CSA), Frank Mercieca, has insisted that all guidelines issued by the health authorities are being followed in court, after a witness in a high profile case tested positive for COVID-19 just hours after testifying to a packed courtroom. But this outlook is not one shared by other stakeholders, with the Chamber of Advocates poking holes in the current setup.

It was late on March 25 when news started to spread that Melvin Theuma had tested positive for COVID-19 – a nightmare scenario for all who had spent hours crammed with him in the small courtroom used that day.

“Referring to the Melvin Theuma case, please note that all measures in accordance with Health Authorities are strictly adhered to by the Court Services Agency. When CSA is informed of such instances, the particular Hall and public spaces are sanitised and staff is sent home on telework till they have a negative swab test,” Mercieca said in reply to questions sent by this newspaper.

“CSA is well prepared for such situations and insists that all guidelines issued by Health Authorities are strictly adhered to.  There are also continuous discussions with Health Authorities and the Unions are kept informed,” he added.

Mercieca added that numbers of persons present in the court building is controlled at the entrance. “Physical distancing in court is adhered to at all times and to enforce such measures the number of persons entering the court building is being controlled by the Kiosk so that the public is only allowed to enter the court building ten minutes before their case is due to heard.  Even in the court registries the number of people allowed is very limited.”

Chamber of Advocates’ criticism

Contacted for comment, a spokesperson for the Chamber of Advocates was less categorical, saying it supported the measures introduced but that other suggestions had not been taken up.

“No assessment has been made regarding the maximum number of persons which should be allowed to enter the building, or at least the Chamber has not been informed about it.

“Remote hearings have unfortunately only been adopted by the Superior Court of Appeal and by a very limited number of members the judiciary. The court administration has only set up three court halls, with the instruments needed for such virtual sittings to take place.

“To avoid excessive human traffic within the court building – digital filing of court records will help in diluting the number of people that would need to attend the registry of our courts; and virtual hearings would certainly address the need for lawyers, their clients and witnesses to have to go to court. When the Chamber speaks of remote sittings this should not be interpreted as meaning that the judge would need to be in the court building – so that court halls need not necessarily have to be equipped for virtual hearings, there are simpler methods that can be used, and indeed have been used successfully in a number of instances.”

Other measures which were put into place where the staggering of cases which had to be heard in specific time slots; advising lawyers to attend sittings without their clients, when the presence of the client was not absolutely necessary; and limiting the entrance of the public in the court building in such a manner that only people who had to attend a sitting could enter and this within a ten-minute period before such sitting would take place.

“There can be a number of stumbling blocks. In our view most of them are surmountable with some goodwill, common sense and a realisation that COVID-19 has created extarordinary circumstances, which may require extraordinary measures to be addressed. In most instances excessive formalities and redudant practices, plus the reticience of a number of members of the judiciary and lawyers alike to use modern technology are real obstacles.”

Except with respect to the vaccination issue on which the Ministry has remained completely silent, on most other issues the Chamber has been co-operating with respect to COVID-19 protocols in Court.

"Clearly, these do not necessarily all work or work all of the time. One issue that was successful, at least most of the time, or until such time as judges use it appropriately, is the establishment of time slots for sittings – a practice that in our view should be applied across the board in all cases even in a normal environement after COVID-19."

The problem however arises with the way in which some judges operate the system, without sufficient regard to other stakeholders.

"For instance there was complete agreement even between the Chamber and the Chief Justice with respect to a directive issued by the Chief Justice to all members of the judiciary, whereby over the past month or so only cases that were “urgent” would have sittings appointed. The reality is that a number of judges, and I have to say they were very few in number, took an approach which was very generous in the way in which they applied the term “urgent”, which in our view made a mockery of the term and the context in which it was intended by the Chief Justice.”

Vaccination woes

The Chamber’s spokesperson said that it had initially refrained from making demands for vaccination out of respect of other, more vulnerable sectors which should be given precedence.

“However, when the Chamber was informed that members of the judiciary and court officials were going to be prioritised for vaccination the matter had to be reconsidered. As has already been stated by Chamber in a number of statements, members of the judiciary where the ones who were at a lower risk due to the fact that they were protected by the installation of Perspex screens; the wearing of masks, and the distance between them and the rest of the public.”

The ones who are mostly at risk whilst working in the court building are inevitably all the court staff and all those legal professionals which have to attend for sittings, said the representative body. “Thus, the Chamber of Advocates, took measures to collate information of those lawyers who worked consistently in court, and sent this list to the Minister of Justice and the Health Authorities seeking to have these persons prioritised for vaccination. The Chamber is still awaiting that communication to be acknowledged.

“In view of this lack of reaction, the Chamber of Advocates had no alternative but to extend its directive of the 11th of March 2021, whereby it directed all lawyers not to attend court sittings, excluding those which were deemed to be urgent. Such a directive will remain in place until the Chamber’s request is acceded to or the situation changes.”