A charge against a woman brought before the law courts for breaching the COVID-19 protocols was amended on Wednesday, prompting the prominent criminal attorney who is defending her to urge the Government’s watchdog to be “more careful” when drafting information and charges against alleged offenders.
“This pandemic is a serious thing, but we must get it right before we seek to bring people before the courts in relation to breaches of the directives,” Queen’s Counsel Michael Lashley suggested to the COVID-19 Monitoring Unit.
The comment came as a charge against his client, Davia Graham, was amended by the District ‘C’ Magistrates’ Court, following an application by the Crown prosecution team of Principal Crown Counsel Krystal Delaney and Senior Crown Counsel Neville Watson in association with police prosecutors Inspector Janice Ifill and Station Sergeant Crishna Graham.
Back in February, Graham, of Brewster Road, Worthing, Christ Church, appeared before Magistrate Elwood Watts charged that on February 7, she contravened the COVID Emergency Management Directive by attending a lime. The protocol required every person to observe physical distancing and associated protocols in the interest of public health during the February 3 – 17 lockdown.
But Lashley and his team of co-counsel – Dr Lenda Blackman, Karen Thornhill, Seantelle Parris, Simon Clarke and Sade Harris – argued that the directive under which Graham is charged does not define what constitutes a ‘lime’ and ‘physical distancing protocols’.
Lashley, a former Democratic Labour Party cabinet minister in the Freundel Stuart administration, further argued that the Minister of Health and Wellness cannot lay the charge as informant – as the directive only empowers the Prime Minister and the Chief Medical Officer (CMO).
Magistrate Watts agreed, saying that under Section 28 of the Emergency Management Act, the Chief Medical Officer is charged with the responsibility for emergency management during a public health emergency.
The magistrate noted that there must be a “separation of powers”.
“The minister is not the proper party, but the Chief Medical Officer is the proper person to bring the information,” Watts added, as he allowed an amendment put forward by Crown prosecutor Delaney for the informant to be amended to read the CMO.
The magistrate also allowed the Crown’s application for a subparagraph in the Directive to be removed from the charge, in which Graham was being essentially accused of committing two offences in one charge.
But Magistrate Watts stated that a ‘lime’ was clearly defined in the protocol as it was prefaced by the words ‘social event’.
He said: “The directive is clear. It is a social event known as a lime. The term ‘lime’ is not thrown out there nakedly; it falls under a social event… just like a bus crawl… It is behaviour that is prohibited.
“The mention of social distancing has nothing to do with what Graham is charged with. Physical distancing goes back to the protocol… not the offence itself. As it relates to the offence for which Graham is before the court, it is irrelevant. The accused is not charged for failing to physical distance.”
Watts allowed for Graham to be prosecuted for attending the lime, even as he agreed with the defence and the Crown that the COVID-19 Monitoring Unit had “no powers to prosecute”.
The magistrate then allowed the necessary amendments and re-read the charge to the accused who pleaded not guilty. She is now expected to go on trial on June 2.
Lashley later said: “Today was basically a technical victory for us. Our argument was that the Ministry of Health cannot be an informant in a matter before the court. The court is saying it is really breaching the separation of powers doctrine that a member of the executive is separated from laying information in the court against a private citizen.
“I am all in support of putting things in place to regulate conduct, any reckless conduct, in relation to breaches of the directives because this pandemic is a serious thing. But we must get it right before we seek to bring people before the courts in relation to breaches of the directives. The concept of the COVID Unit is a good concept, but I believe that they need specialized legal services in there that they can be guided properly in terms of the law.
“I think based on what came out today, I think the monitoring unit should be more careful in terms of drafting information and putting them before the court.”