Threat of Covid-19 to criminal justice system
Quarantine and lockdowns are sweeping across the world as countries seek to contain Covid-19 and save lives. Bermuda is now one of those, with the Bermuda Government recently announcing the confirmation of two cases of Covid-19. Inbound flights have been restricted, schools have closed, public transportation has been suspended and workers across the board have been encouraged to work from home where possible.
It is difficult to imagine higher stakes from a human rights perspective — mass interferences with whole populations' liberties on one side versus the weighty public interest in protecting lives on the other, and all of this against the clock and under the shadow of uncertainty and disorder.
Where do our legal rights fit into all of this and what implications do these sudden and drastic measures have on the citizens of Bermuda?
The Government is working around the clock to help control the outbreak, enacting emergency laws where necessary. With effect from Tuesday gone, all persons arriving into Bermuda will be required to self-quarantine for 14 days and should expect to do so subject to public health monitoring.
There has been much discussion worldwide about bringing in new powers to allow the police to detain those breaking quarantine measures. Britain has just announced it is now allowing the police to use “reasonable force” to detain those at risk of spreading the virus to others.
Where the police may take those in defiance is not known, and what an unenviable task for them and health officials detaining those in proximity who are suspected of carrying the highly infectious airborne disease.
At present, a police officer's powers of arrest are premised on the concept of committing a criminal offence.
It may be possible to define “breaking quarantine” an offence, although this would require the individual concerned to know they were subject to quarantine measures in the first place in order for them to regulate that behaviour accordingly.
Whether or not such a status would be imposed on them either by a doctor telling the patient they were to be legally quarantined, or by the patient self-identifying as being required to quarantine, would be fundamental to how the legislation functions.
The former would be likely to exert a heavy burden on medical staff, reducing the number of people subject to quarantine and limiting effectiveness as a public health tool.
The latter approach would require the individual to conduct their own assessment of whether or not their behaviour is criminal against a set of medical criteria, which most individuals are likely to be unfamiliar with.
Unlike most criminal offences, the unacceptability of which are usually reflected to a degree of consensus across society, such an exercise would require the individual to make an assessment on a matter that previously would have been within the field of personal judgment rather than criminality.
The scope for innocent infringements in asking people to assess whether their cough is “new and persistent” would seem high and unreasonable, not to mention unenforceable.
An alternative would be to introduce legislation akin to section 13 of the Mental Health Act 1968 giving novel powers to the police to remove those they consider unwell. Such an approach would come with its own serious problems.
How are the police qualified to make that assessment?
If the purpose is to dissuade the mentally competent from breaking quarantine, it would seem sensible to attach a punishment or deterrence to non-compliance. But the Mental Health Act 1968 quite rightly does not function in this way.
Broadly speaking, it acts as an instrument to remove people from free society for a limited period of time and commit them for treatment because the very nature of their condition makes their consent difficult to assess.
The British Government has created similar powers under the Health Protection (Coronavirus) Regulations 2020. Again, enforceability is still very much open to question.
The impact of Covid-19 on the criminal justice system is likely to be significant. Israel has already suspended criminal trials, which is presumably convenient given the Prime Minister was due to attend one this week on charges of fraud, breach of trust and bribery!
Similarly, the Australian state of Victoria has suspended all jury trials because of the risk of transmission during the process of empanelling jurors.
In Bermuda, the civil courts will no longer accept new matters, and lawyers across the board have been encouraged more than usual to resolve matters out of the courts. Should an individual on bail be punished for not answering bail because they are in quarantine?
Perhaps the courts and police stations should be waiving the legal obligation to attend for such purposes to prevent the spread of the virus.
If the virus begins to spread at our correctional facilities, there is a strong argument to be made for the release of prisoners. Perhaps we should be thinking about doing this now as a precautionary measure. Westgate has already closed its doors indefinitely to visitors.
Is this fair on our prisoners?
Countries such as Spain and Iran have ordered the release of many prisoners owing to the risk of virus transmission among detainees and jail staff. Protecting public health and saving lives is arguably more important than protecting the community from the offender and the need for deterrence, at least in relation to all but the offenders who present highest risk to the public.
A public health expert in Britain has warned that prisons provide ideal incubation conditions for the rapid spread of Covid-19, and the first case of the virus in an inmate there was confirmed this week.
A further report has confirmed the substantial risk of the virus spreading at a particularly faster rate in locked establishments, such as prisons, in a process being referred to as “cluster amplification”.
On the flipside, the British Government has issued guidance stating that if there was a significant outbreak of Covid-19, “cohorting” should be used to put all those infected together behind locked doors in secure units. This has obvious drastic implications on the right to liberty and free movement.
How our already suffering and under-resourced criminal justice system will accommodate this in the context of widespread anticipated absences because of illness among court staff, judges and lawyers remains to be seen.
If trials are delayed, this will have serious implications on prisoners' fundamental right to have their matters heard within a reasonable time, the length of time prisoners are held in custody, as well as prolonged periods of detention without charge.
How will an individual's right to justice be delivered, in accordance with the Bermuda Constitution, and maintained at a time when the rest of society is taking measures to prevent the movement and mixing of individuals?
Of course, a lot of this is conjecture. The outbreak may worsen, or it may settle down.
What seems almost certain, however, is the next few months will bring numerous challenges, and responses will require a radical departure from previous norms.
• Victoria Greening is Legal Counsel at Chancery Legal Ltd