Judge will not be charged in tape row

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Prosecutors will not press charges against a Court of Appeal judge accused of withholding or destroying audio recordings of court proceedings.

Pressure group Civil Justice Advocacy Group had filed a criminal complaint against Court of Appeal president Justice Edward Zacca and court registrar Charlene Scott in January, claiming that Appeal Court recordings were deliberately withheld from appellants and possibly destroyed.

The group compiled a chronology of cases in which litigants were given contradicting information from officials about the availability of recordings of hearings that took place between February 2011 to November 2012 — when, after a public protest, Justice Zacca finally agreed that all future hearings would be recorded and made available.

Lawyers representing the judiciary had insisted that no recordings were made during that period and therefore could not have been retained or destroyed. But CJAG argued that legislation made it mandatory for hearings to be recorded — and it had in its possession a recording of at least one Court of Appeal hearing held in that period.

“By the legislative operation of at least four Acts of Parliament, the Registrar has a legal duty to keep and retain a record of the proceedings held in the courts,” a CJAG spokesman claimed.

“And since at least 2004, confirmed by their own report, the official record of the proceedings has been an electronic record. The Bermuda taxpayer has paid for the installation of the Court Smart System so that proceedings can be accurately and transparently recorded in the interests of justice.

“The Ministry of Legal Affairs has confirmed, in an official report, that during the period of 2011-2012, ‘100 percent of all cases’ were ‘captured in the Court Smart System.”

However, last night a police spokesman said that, after an eight-month investigation, no further action would be taken.

The Bermuda Police Service has conducted a full and comprehensive investigation into the complaint made against the President of the Court of Appeal and the Registrar of the Supreme Court by a number of complainants under the collective name of the Civil Justice Advocacy Group,” the spokesman said.

“A file was reviewed by the Director of Public Prosecutions and a decision has been taken that no prosecution will be commenced in this matter.

“The investigation determined that the President of the Court of Appeal had instructed the audio recording system to be switched off for a period of time in 2011/12. This was done, with the exception of an anomalous date where the system captured a particular court matter. The complainant in that case was subsequently provided with an audio tape of the recording. There is no evidence that any other recordings were made in respect of other cases that form the CJAG complaint. It follows that audio recordings were not ‘withheld or destroyed,’ because they did not exist in the first place.

“There is no legislative requirement to audio record the proceedings of the courts, and the President of the Court of Appeal was within his legal rights to turn off the recording system. The investigation found no criminal conduct in the making of this decision, either on the part of the President or the Registrar. As such, any offences that are alleged under the Criminal Code in relation to this matter are unfounded.

The investigation also found that, whilst audio recordings of the cases did not exist, hand written records and other documents of the Judges of the Court of Appeal are on record with the Supreme Court Registrar and remain available to the parties upon request.”

Editor’s note: On occasion The Royal Gazette may decide to not allow comments on what we consider to be a controversial or contentious story. As we are legally liable for any defamatory comments made on our website, this move is for our protection as well as that of our readers.

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