VIRTUAL HEARING IN CRIMINAL CASES
It seems to me that the constitutional stipulation that criminal trials shall be held “in public” (section 36(4)) is not necessarily a bar to virtual hearings, as “in public” does not require a market square or even a physical location but simply a place “accessible to the public.” A virtual hearing with access to the public should therefore be sufficient. It is significant that section 36(4) does not stipulate that criminal trials must be held inside a courtroom. Indeed, on the contrary, it seems that even a trial in a courtroom with the public denied access (unless to protect the parties or witnesses) is not a “hearing in public” according to the terms of section 36(4).
- Section 36(6) sets out the basic rights of everyone charged with a criminal offence. Any of Paragraphs (b), (c) or (d) may easily pose a challenge to virtual hearing of criminal cases. The accused must “be given adequate time and facilities for the preparation of his defence.” The constitutional right to be assisted by counsel means that if the accused is in custody, his or her counsel should be present in the same location as the accused for unimpeded and confidential communication. Examination/cross examination of prosecution of witnesses without the physical presence of the accused and counsel may also give rise to denial of fair hearing.
- What can be safely assured from a fair hearing perspective, is that applications as well as legal submissions can be done remotely, but arraignment, examination of witnesses, judgment, and sentencing should be done in the courtroom with the accused present.
- Different considerations apply to civil cases. There is no reason why the entire proceedings cannot be done remotely. Section 36(3) requires that the proceedings of a court (or tribunal) “shall be held in public.”
- Appellate hearings can be conducted remotely, including criminal appeals. Case of Marcello Viola v. Italy (Eur. Ct. H.R.) https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-77246&filename=001-77246.pdf&TID=thkbhnilzk
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