ICO decision on judicial dept
Non-existent’ court recordings revealed
A set of court recordings that judges claimed did not exist and which detectives failed to find during a “full and proper investigation” have been uncovered during an inquiry by the Information Commissioner’s Office.
A group of litigants who have been fighting to get the audio discs for more than seven years have now finally been given them by the Judicial Department.
The group had initially hoped to use them to help prepare for further court appearances, but described their eventual release after such a long wait as “anticlimactic”.
One member told The Royal Gazette it was “terribly disturbing” that it had taken so long and that the group was repeatedly told by public officials the recordings did not exist.
LeYoni Junos, of the Civil Justice Advocacy Group, said: “It has been so much hard work for us to get to this point. It shows contempt for persons attempting to get justice. It’s completely unacceptable for public servants to treat members of the public like that.”
Ms Junos added: “The rule of law in a democracy is predicated on the complete independence and impartiality of the judiciary. It’s supposed to be a constitutional guarantee. It’s a right that you have. They regarded us as a nuisance.”
The group of litigants joined forces after each member was involved in separate civil proceedings dating back to 2011 before the Court of Appeal, the highest court that sits on the island.
Several, although not all, were representing themselves as “litigants in person”, and when they applied for recordings of their hearings, to assist with appeals they planned to make to the Privy Council, they were told by court officials they could not have them.
Various reasons were given, including that Court of Appeal president Edward Zacca had ordered the Court Smart recording system to be turned off during session and that it was normal practice if recordings were made not to provide them to parties in a lawsuit.
The group, including Ms Junos, businessman Dilton Robinson, the Bermudians Against the Draft pressure group and landowner Robert Moulder, publicly questioned the refusals, insisting that recordings should have been made and should be shared with them.
Their criticisms prompted Mr Justice Zacca and Charlene Scott, then the Registrar of the Supreme Court, to issue a joint statement in July 2012 in which they said: “It is not correct to say that there are recordings in the Court of Appeal to be transcribed.
“As the final court of jurisdiction on this island, unlike the Supreme Court which hears oral evidence, the Court of Appeal hearings are not recorded.”
Less than six months later, Mr Justice Zacca, who has since retired, announced that Court of Appeal proceedings would now be recorded and recordings would be shared with litigants and lawyers.
But the members of the CJAG were still unable to get the recordings they believed existed of their hearings.
They made a criminal complaint to the police in January 2014 against the Court of Appeal president and Ms Scott, alleging that if the recordings existed “then we are repeatedly being told they don’t exist, constituting acts of deceit and perverting the course of justice”.
The Judicial Department hired the law firm Trott & Duncan to publicly respond to the allegations. The department stated: “No recordings were made during the period in question.”
Police came to the same conclusion in September that year, when Acting Superintendent Nicholas Pedro told the CJAG that the IT officer responsible for the court’s audio recordings was told to turn off the recording system by Mr Justice Zacca, apart from during one hearing in Mr Robinson’s case.
The detective wrote: “There is no evidence that any other recordings were ever made in respect of the other cases that form the complaint. It follows, therefore, that audio recordings were not ‘withheld or destroyed’ because they did not exist in the first place.”
The complainants provided police with pages from government budget books showing “performance measure outcomes” for the Ministry of Legal Affairs, including a claim that the Court Smart system had captured 100 per cent of court hearings during 2011, 2012 and 2013.
Mr Pedro wrote: “This was found to be incorrect.”
The detective said a “full and proper investigation was conducted to the highest of professional and ethical standards” and he was satisfied the findings were “appropriately supported”.
The CJAG made a public access to information request to the Judicial Department in February 2016 for data supporting the performance measure outcomes on court recordings.
The department did not release the data and the Permanent Secretary at the Ministry of Legal Affairs later denied the Pati request, on the basis that the records did not exist.
The group asked the Information Commissioner’s Office to conduct a review and the recordings were found by the Judicial Department after it did extra searches at the ICO’s request.
Ms Junos said finally having the recordings was anticlimactic because of the long struggle to get them and the conduct of public officials who blocked access.
“When a litigant in person goes through the courts, it’s so intimidating anyway,” she said. “When you are now up against a judiciary that’s not operating in keeping with the Constitution and the oath of office they took, then it’s like you don’t stand a chance.”
She said the CJAG pursued its fight in the knowledge that the court had a back-up recording system, which would work even if the judge ordered the Court Smart system to be turned off.
Neither the Judicial Department nor the police responded to a request for comment for this article.
Kathy Lynn Simmons, the Attorney-General, declined to comment on the handling of the Pati request by the Ministry of Legal Affairs permanent secretary.
Lawyer Delroy Duncan, who wrote the January 2014 response on the instructions of the Judicial Department, said: “When I acted in the matter you refer to, I was told via the Supreme Court Registry that ‘no recording existed of the relevant hearing’.
“What is unclear from the decision ... is at what point the recordings were found and/or disclosed.”
Information commissioner Gitanjali Gutierrez told The Royal Gazette it would not be appropriate for her office to go into details about the case, beyond what was in a decision she issued last week.
She said: “As a general matter for any investigation and review by the information commissioner, the ICO does not conduct record searches for public authorities when considering whether or not a record exists or can be located ... instead we might identify gaps in a public authority’s search and invite it to remediate any of these gaps during the review.
“Public authorities regularly will accept that invitation and it may result, during the review, in a Pati requester receiving some or all of the public records they are seeking.”
June 2011 Litigant LeYoni Junos, representing herself in civil proceedings in the Court of Appeal, requests a recording of a hearing, only to be told by an administrative officer at the court: “Court of Appeal recordings are not available to anyone, as ordered by the President of Court of Appeal. It is just not provided.”
July 2011 The same officer says in an e-mail to Ms Junos: “It is not an irregular practice for Court of Appeal hearings not to be recorded, and if recorded, not to be provided to parties or the public. If you received any Court of Appeal recordings, it was provided in error. The president ordered the system to be turned off during session.”
November 2011 Supreme Court registrar Charlene Scott responds to a request for a transcript of a Court of Appeal hearing from Bermudians Against the Draft founder Larry Marshall: “There were no recordings of the hearing that took place on the 7th November and as a result no disc can be made for the same.”
July 2012 After criticism about the refusals to provide recordings, Court of Appeal President Edward Zacca and Ms Scott issue a joint statement: “It is not correct to say that there are recordings in the Court of Appeal to be transcribed. As the final court of jurisdiction on this island, unlike the Supreme Court which hears oral evidence, the Court of Appeal hearings are not recorded.”
September 2012 Litigant Robert Moulder launches an online petition for Court of Appeal recordings to be released.
November 2012 Mr Justice Zacca announces that proceedings in the Court of Appeal will now be recorded and made available to lawyers and litigants. Bar Council president Delroy Duncan says: “We are quite happy that proceedings will be recorded and we would like to offer our support for this new change.”
January 10, 2014 The Royal Gazette publishes a front-page response from the Judicial Department, which Mr Duncan, of Trott & Duncan law firm, was instructed to send. It reads: “It is most seriously alleged that the judicial officers named in the article have criminally either failed to make court recordings or destroyed recordings that were made. No recordings were made during the period in question and none were destroyed. The allegations are defamatory, frivolous, vexatious and entirely without foundation.”
February 2014 The CJAG says “there exists incontrovertible evidence that recordings were indeed made during the period in question”. It cites a claim by the Ministry of Legal Affairs, in the Government’s own budget book, that 100 per cent of all court cases were captured on the Court Smart system during 2011, 2012 and 2013.
September 2014 The police conclude their investigation and Acting Superintendent Nicholas Pedro writes to the CJAG to say: “... audio recordings were ‘not withheld or destroyed’ because they did not exist in the first place”. Police say in a press release that no prosecutions will be made. The CJAG claims police failed to forensically examine the court recording system or server and did not interview Mr Justice Zacca or any of the court clerks observed working the Court Smart system during the sessions in question.
February 2016 The CJAG makes a Pati request to the Judicial Department for documentary evidence supporting the claim that 100 per cent of all court cases were recorded.
April 2016 The department discloses only a procedural document about the Court Smart system and tells the CJAG that, in relation to recordings, “no cases were lost due to system failures”.
November 2016 The Permanent Secretary at the Ministry of Legal Affairs issues a decision on the department’s response, denying the request on the basis that the records don’t exist.
March 2019 The Information Commissioner’s Office finds, following a review, that the Judicial Department “incorrectly relied” on an exemption in the Pati Act because records responsive to the request did exist.
Information commissioner Gitanjali Gutierrez says: “The information commissioner is satisfied that during the course of this review, the Judicial Department identified the records and granted access to them, in accordance with the Pati Act.”
She says that during the ICO review the department conducted “additional searches of the Court Smart system which led to the identification of records” and that included “actual recordings of various proceedings”.
• To view the decision from the Information Commissioner’s Office in full, click on the PDF link under “Related Media”