No case: Roger Bowen leaves Supreme Court.

Chief Justice Richard Ground has spoken of the tough decisions judges have to make in the wake of a controversial ruling in a death by drunk driving case.

Supreme Court judge Charles-Etta Simmons ordered on October 26 that Roger Bowen, 26, of Sandys, be cleared – on a legal technicality – of killing bartender Larry Thomas, 34, while driving drunk.

She had been asked by the defence to determine what documentation was required in law to be held by a police officer conducting a breath test on a motorist and whether the sergeant who breathalysed Mr. Bowen on April 26, 2008, met the legal criteria.

The judge ruled that breath test operators must be designated by the Police Commissioner to use the machine and that the sergeant involved was only certified, so could not give evidence that Mr. Bowen was 1.5 times over the legal drink drive limit.

Prosecutors in Bermuda cannot appeal a judge's ruling on a finding of fact and Mr. Justice Ground told The Royal Gazette that in this case the point about whether the officer was designated was "a question of mixed law and fact".

"In the circumstances of this case, where the judge went on to direct the jury to acquit, an appeal is probably not permissible from such a point," he said.

The Chief Justice added: "Whether there should be the possibility of an appeal in such circumstances is a political question for Parliament to decide and it is not for me to comment on it.

"But without the possibility of an appeal the judges are left in the position of being required to take hard decisions, and exposed to criticism for doing so, without the possibility of vindication or approval by a higher court."

The Opposition has called in the past for the prosecution's right of appeal to be extended. Shadow Attorney General Trevor Moniz said yesterday: "It continues to be a priority for the prosecution to be granted the right of appeal equal to the defence's right of appeal."

Mr. Moniz also commented on the fact that Mr. Bowen was previously cleared of another drink driving charge after a police officer failed to attend his Magistrates' Court trial, as reported by this newspaper yesterday.

"Your article today yet again shows that we have deep and systemic problems in the justice system which there is not the political will to address," said the UBP MP.

Michael Fahy, from the Island's as-yet-unnamed third party, said: "The issue is indeed a serious one and must be immediately examined by the Legislature.

"Drunk driving is a serious issue in Bermuda as we well know. Larry's untimely death should be a reminder that our roads are not safe from the menace of the acceptance that driving drunk is okay in Bermuda."

Asked if the prosecution would appeal the case, Michael McColm, acting Director of Public Prosecutions (DPP), said he would need to consider a report on the decision. "The prosecution has extremely limited rights of appeal," he said.

Mr. Justice Ground said the ruling in the Roger Bowen case meant "it would obviously be wise for the Police and prosecutors to review their procedures as to the designation of officers for the purposes of breath tests".

A spokeswoman for Attorney General Kim Wilson said she was still reviewing both the judgement and the Road Traffic Act to see if there needed to be any legislative amendments.

A Bermuda Police Service spokesman said: "The Bermuda Police Service has requested a copy of the ruling and a report from the DPP and we expect it very shortly.

"We have received feedback from officers involved in the case and we have made preliminary investigations to look at our systems. A full media statement will be made once we have been able to review the court ruling."

A defence lawyer, who asked not to be named, told this newspaper that the ruling could open the floodgates for anyone convicted of driving while impaired.

He said: "People convicted for driving with excess alcohol ought to appeal. And this is a criminal matter, so it's retrospective. So going forward, anyone can test, if they want to, the Supreme Court ruling.

"There's no statute of limitations on convictions in criminal matters. And if they are charged, the preliminary appeal should be to have it struck out on the grounds that the officer may well be certified but not designated."

Bermuda Air Conditioning mechanic Mr. Bowen was driving his work van when it was involved in the collision with Mr. Thomas' motorcycle in Somerset. BAC managing director John Plested said: "Roger Bowen is still employed by BAC but was banned from driving any BAC vehicle."

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