A police investigation into alleged misconduct by a Court of Appeal judge has been criticised by the complainants.

Last week police confirmed that prosecutors had dropped a criminal complaint against Court of Appeal president Justice Edward Zacca and court registrar Charlene Scott following an eight-month investigation into allegations that they either withheld or destroyed audio recordings of court proceedings.

But last night the Civil Justice Advocacy Group (CJAG), which filed the complaint with police in January, said the case raised more questions than answers.

The group compiled a list of cases in which it claimed litigants were given contradicting information from officials about the availability of recordings of hearings 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.

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.

CJAG members met with police last week “to try and resolve several unanswered questions”.

Last night a spokesman for the group said: “Having been told in a letter that the police had ‘conducted a full and comprehensive investigation’ and that ‘during the course of this investigation, additional evidence was collected and statements were recorded from numerous persons, including those that were the subjects of your complaint’, the group were shocked to learn the following.

“President of the Court of Appeal, Edward Zacca, the primary subject named in the complaint, was never interviewed or questioned by the police.

“The court recording system or server was never forensically examined and no assistance was sought from contracted CourtSmart technicians for an independent assessment as to whether recordings had been deleted or the system otherwise tampered with.

“Court clerks who were observed working the system in the courtroom during the sessions in question were never interviewed or questioned.

“Police investigators could not give the dates on which unwritten instructions were given to the IT Manager to ‘turn off’ the system — an act which they conceded was deliberate and premeditated.

“It is a fact that in official documents coming out of the House of Assembly — the official Hansard Report — and the judiciary, including annual reports endorsed by the Chief Justice, that the CourtSmart recording system is ‘the formal record of proceedings’ and ‘the official record of the courts’.

“Yet, we are now being told that the longhand judge’s notes are still the ‘official record’. CourtSmart has been in use in the Supreme Court for at least ten years.

Official reports from the Ministry of Legal Affairs (2011-2012) have also stated that, during the sessions in question, 100 percent of cases heard in the courts, including the Court of Appeal, were ‘captured in the CourtSmart system’.

“You cannot officially report 100 percent and then, when challenged, tell us that dozens of cases were deliberately not recorded.”

Police did not respond to requests for comment made by this newspaper last night. But explaining why no charges would be brought, a spokesman earlier said: “There is no legislation in Bermuda that requires the court to make an audio recording of its proceedings. The fact that the court has such a system does not mean it is required by law to do so.”

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