A criminal complaint has been filed against Court of Appeal president Justice Edward Zacca and court registrar Charlene Scott over the availability of recordings of court proceedings.

The Civil Justice Advocacy Group (CJAG) claims that court officials may have committed a number of criminal offences — including destroying evidence, conspiring to defeat justice, attempting to pervert the course of justice and destroying or damaging public records — by not making recordings available.

The row first erupted in 2012 when a number of appellants complained that they were unable to obtain transcripts of their cases heard in court. Justice Zacca replied by insisting that the Court of Appeal was not obliged to record proceedings. However, in November of that year, after a petition was launched questioning that view, the judge agreed that all future cases would be taped and made available.

But in a letter sent to police, the CJAG now claims that the Court of Appeal was always legally bound to record proceedings — and that an investigation should be launched to establish if officials knowingly breached regulations prior to November 2012.

The letter refers to a number of laws which “requires both Supreme and Appeal Courts (as ‘superior courts of record’) to make and retain a record of proceedings held before them” and “requires the Registrar of both Courts (Charlene A. Scott) to oversee the retention of these records and to make such records available to interested parties, on request”.

“In cases where recordings may not in fact have been made it is our position that such recordings ought to have been made,” the letter states.

“As such, an investigation ought to be carried out as to the reason why such important recordings were wilfully not made.”

The group also insists that some recordings were made prior to November 2012, but officials later denied that proceedings had been recorded. The group compiled a chronology of cases in which litigants were given contradicting information from officials about the availability of recordings.

“For the period in question (February 2011 to November 2012), we have been told that recordings do not exist (when we know that they were made),” the letter states.

“There is an abundance of evidence to show that in the majority of cases proceedings were in fact recorded. So what has happened to them? Why would the court refuse to release these recordings? Have official recordings been deleted or otherwise disposed of in breach of the Criminal Code 1907?

“We believe these recordings may have been unlawfully and wilfully destroyed, preventing us from furthering our cases to the next level. If they do exist, then we are repeatedly being told they don’t exist, constituting acts of deceit and perverting the course of justice.

“If recordings no longer exist we submit that this should be considered prima facie evidence that they must have been destroyed — which we consider to be among other things, not only an injustice but an offence or a number of offences. We therefore petition for appropriate and thorough investigations to be carried out into the issues raised.

“Litigants had a legitimate expectation of receiving, and relied on being able to obtain copies of the recordings in order to progress with their claims. It is our position that, by withholding these recordings among other things constitutional and other rights have been infringed and trampled, and litigants’ cases prejudiced.”

In March 2010 The Royal Gazette reported that a digital voice recording system known as CourtSmart was being used in the Court of Appeal.

However, in a July 2012 joint statement by Justice Zacca and Ms Scott, they declared: “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.”

Ms Scott also told this newspaper at the time: “The judge’s note is the official record, unless otherwise indicated. It is the president’s discretion as to whether there will a recording or not.”

Yet according to the 2012 Bermuda Judiciary Annual Report, the CourtSmart system is used by “all” courts in Bermuda “and is the official record of the courts”.

The CJAG letter, dated December 23 and signed by Robert Moulder and Judith Chambers on behalf of the group, concludes: “We have reason to believe that criminal offences have been committed. Further, that the rules of natural justice have been broken. We say that this matter needs to be fully investigated as a matter of urgency and appropriate action taken.”