Monday Essay: When the Shell Remains: The Vanishing Trial Record and the Struggle to Reconcile Fair Trial Rights and Judicial Integrity

Introduction

The record is the soul of the trial; when it vanishes, the soul is lost and only the shell remains.

            During moments when staff of the judicial service embark on strike action to demand their legal rights, other questions of legal nature arise as pertains to justice and its administration in the territory. One of such issue deals with the vanishing and loss of court processes, records and documents. In many cases, especially those being pursued on appeal, it sometimes may be discovered that substantial segments of trial records made up of the entire testimonial evidence of witnesses, as well as that of the appellant, may not be traced. How core trial records often disappear from the court registries, leaving only non-essential segments i.e. the shell, so to speak, remains a mystery. These scenario, in my view, may not be isolated but do happen often in the judicial system. Instances like these have compelled the Superior Courts of Judicature to explore the frontiers of our jurisprudence on lost or destroyed judicial proceedings, and by so doing, establish the legal principles governing this area of the law. This essay considers the nature of lost records, the legal principles developed, and how judges balance competing constitutional interests when the record vanishes.

 Lost or Destroyed Judicial Records

In my understanding, lost or destroyed judicial records refer to situations where the official record of proceedings in a court, either in whole or in material part, cannot be produced especially when required for purposes of appeal. Without any doubt, judicial records are clearly vital to the proper functioning of our courts. Judicial records are the lifeblood of justice as they preserve testimony, safeguard fair trial rights under Article 19(1), enable appellate processes, ensure accountability, and prevent manipulation. Notwithstanding the importance of these judicial records and proceedings, these may be lost or destroyed either through plain burglary, or fire or some other unfortunate natural calamity. In this technological age, it may also be lost through the inability to recover electronic data i.e. recorded court proceedings, or scanned exhibits, from a crashed computer. Generally, the responsibility for keeping court records  in safe and proper custody and producing them on demand rests on the Registrar of the relevant courts. All courts have the overriding duty to keep the streams of justice pure and to protect it from manipulation and abuse, and from being overran by corrupt and unprincipled persons, sometimes acting in collusion with some court officials to pervert justice. A court faced with a situation of a lost, damaged or missing court record has a duty to ensure that the competing interests, namely, a party’s unquestionable right to a fair hearing (including a just and a fair appeal) – viz-a-viz – the overriding constitutional duty of courts to keep the streams of justice pure, are simultaneously realized. Admittedly, though it may be impracticable to prescribe a one-size-fits-all uniform conduct in matters of lost or destroyed judicial records, the Supreme Court in the case of John Bonuah v The Republic Criminal Appeal No. J3/1/2015, has outlined several principles that must legitimately influence judicial decisions on such matters.

Legal Principles Governing Lost Records: How it is measured

There are several ways by which courts have formulated principles to deal with lost records. The unavailability of judicial precedent in this unchartered area of our law made it imperative for our courts to have recourse to foreign case-law to guide the formulation of the relevant legal principles. The Supreme Court of Ghana, by way of principle, emphasized, especially in relation to criminal matters, that an appellant is not automatically entitled to an acquittal upon the mere proof pf lost or destroyed trial proceedings. The Supreme Court stated that the quantum or magnitude of the missing record, be it lost or destroyed, and its centrality to the resolution of an appeal pending before the court is the first criterion that merits attention. Thus, it is not every missing part of a trial record of proceedings that would be deemed as prejudicial to the merit-based determination of an appeal. It is only the part which is vital to the fair, just and conclusive determination of the suit that would be deemed capable of prejudicing the determination of the suit. It was further emphasized by Ghana’s Supreme Court that the jurisprudence does not demand a hundred percent perfect record of proceedings but rather requires such adequate record that is capable of answering the issues raised on appeal. Accordingly, the adequacy of the record test becomes a question determinable on the facts by reference to the grounds of appeal; weighed against the available record or alternatively the lost or destroyed record.

How Judges makes decisions when records vanish

According to Ghana’s Supreme Court, where it is proven that a missing record is material to the determination of an appeal, the next important task is for the court to determine the viability of a reconstruction of the lost record. In practice, this could be done on application of either party to the suit or by the court acting on its own motion. The reconstruction is aimed at reproducing the lost or destroyed proceedings. In doing that, it must firstly be evident that the applicant, for that matter, is not at fault or responsible or blamable for the loss or destruction of the trial record. Where an appellant who causes the loss or destruction of the official court proceedings is allowed to benefit from same, that would amount to permitting that appellant to profit from his crime and by so doing weigh against the reconstruction of the record. Secondly, the courts consider whether or not the appellant’s request for the record was timely. The timely nature of the request makes the reconstruction the most feasible option. Where it is not a feasible option, the next possible option would be to order for a re-trial. Thirdly, the availability of the best contemporaneous and most reliable material from credible sources is a key factor in determining cases where the record of proceedings are lost. In that regard, the courts may in rare cases allow notes taken at an uncomplicated hearing to be deemed authentic for use in ascertaining the best contemporaneous and reliable material for use in reconstructing the record. Fourth, in the process of reconstructing the record, the parties are entitled as of right to scrutinize the reconstituted record and agree on its accuracy or correctness. Overall, the responsibility rests on the court to ensure with reasonable certainty or beyond reasonable doubt that the reconstructed segment is authentic. Where reconstruction is neither feasible nor possible, the best possible step for the court is to consider ordering for a re-trial where sound prudential and legal reasons abound such as the availability of witnesses, the nature and seriousness of the matter, amongst others. In the event that there would be challenges in securing witnesses for a re-trial, in the case of a criminal appeal, that must inure to the benefit of an innocent appellant.

Conclusion:

In conclusion, the influence of lost records on justice delivery surely affects people going through the court system. This phenomenon of vanishing trial records present a profound constitutional dilemma especially in criminal matters where it is a constitutional requirement that every person deserves a fair trial within a reasonable time, which necessarily includes a right to appeal on a complete record. Where records disappear due to institutional failure, in my view, the innocent parties must not be kept in prison indefinitely when his or her appeal could have been concluded according to law. That notwithstanding, on the other hand lies the judiciary’s sacred duty to keep the streams of justice pure from manipulation. It is believed that the judiciary must acknowledge its duty to preserve records, ensuring fairness and equal protection. It is only through a clear legislative framework and adoption of safe and secure recording and archival systems that we can preserve the integrity of the criminal justice system and save it from total collapse. The rules and procedures as outlined by Ghana’s Supreme Court are very helpful in dealing with instances where records vanish. An attempted reconstruction of the record; the inquiry into fault; the test of materiality against the grounds of appeal; and the potential for a retrial, amongst others, all serve a very useful purpose in balancing the scales of justice.

God bless!