Sat | Apr 4, 2020

Jacqueline Samuels-Brown |COVID-19, persons in custody, and the rule of law

Published:Thursday | March 26, 2020 | 12:16 AMJacqueline Samuels-Brown/Guest Columnist
The Tower Street Adult Correctional Centre in downtown Kingston. File
The Tower Street Adult Correctional Centre in downtown Kingston. File

I AM impressed by the measures that have been put in place by the executive arm of government and the judiciary, led by our proactive chief justice, to address the COVID-19 pandemic. However, your article in the Gleaner of March 23, 2020, in relation to the suspected suicide committed in one of our penal institutions had a sobering effect on me, and underscored concerns I have harboured in relation to the negative impact that these measures potentially have on persons in custody.

It is accepted that one marker of how advanced and civilised a society is, is how it treats the dispossessed, the vulnerable, and those who have no voice of their own. Although it may not be popular, with crime being at such a high level in our society, this group includes prisoners and other persons held in custody on suspicion, or awaiting trial.

From the advisory that went out from the Department of Correctional Services, I see that family visits to prisons have been suspended, and understandably so. However, I have made some checks and see where in other jurisdictions, such as Florida in the United States, even prior to the COVID-19 pandemic, there were arrangements in place for communication with relatives by monitored phone calls, which are paid for in advance by a deposit to the relevant office. Conferences with attorneys are also facilitated behind a glass in these jurisdictions.

In the United Kingdom, for some years now, there have been court hearings by way of video conferencing between courts, prisoners and police stations. There are booths established at some court houses which allow for lawyers to have private communication with their clients as a part of that process. A recent study as to how that system operates raised concerns about the negative impact of these remote/electronic communication on persons in those institution who suffer mental disorders and disabilities, as compared with when such persons appear personally in court and can be assessed by the court and their lawyers on a face-to-face basis.

This is a good reason for not implementing such hearings on a permanent basis. But there can be no doubt that in the throes of the COVID-19 pandemic, such an interim measure, as well as telephone visits by relatives, could be very useful.

Our chief justice has made it clear that with the suspension of court hearings, emergency cases will be facilitated. But what if an emergency arises in the prison, say, for example, in the form of physical abuse when the avenue for communicating this is severely restricted, or cut off? How is this brought to the attention of relatives or attorneys so as to activate emergency access to the court?

There is, by law, a prison ‘visit committee’, but frankly, I have never seen a report from them, so I really do not know what impact those visitors make. I have had experiences relating to mental illness of inmates, and physical abuse by inmates against inmates, and warders against inmates, which cause me to give serious consideration to this issue. I will not particularise them here as I am not seeking to cast blame, but rather, to raise for consideration the fundamental issues of the right to humane treatment and access to the court, which our Constitution guarantees.

Not all persons in custody are guilty, and for even those who are, the law and Constitution stipulate how they are to be treated. It is not just in the interest of the prisoners, but in the society’s, as it impacts recidivism and adherence to the rule of law generally.

Jacqueline Samuels-Brown, QC, is an attorney-at-law. Email feedback to firmlaw@cwjamaica.com or columns@gleanerjm.com.