Critics have called on the Attorney General to rework legislation that will abolish the "double jeopardy" principle preventing someone being tried twice for the same crime.

Campaigners for justice in the Becky Middleton murder case want the new law to be retroactive, so cases from the past could be open to retrial if fresh and compelling new evidence comes to light. Meanwhile defence lawyer Elizabeth Christopher has complained the bill is "flawed" and there has not been any consultation with local barristers.

As The Royal Gazette previously reported, Attorney General Kim Wilson's amendment to the Court of Appeal Act was tabled in the House of Assembly on Friday June 25, and is expected to be debated there this Friday. If passed, it will allow prosecutors to take cases to the Court of Appeal in future when strong new evidence — such as DNA — emerges after a not guilty verdict has been returned in murder cases.

It will also give them the right to appeal if a judge makes a ruling in a murder case that there is no case to answer by the accused.

Prosecutors have long complained that, under the current law, they are unable to reopen trials such as the botched Becky Middleton murder case, where fresh evidence comes to light after the court case has concluded.

They have also complained about an inability to appeal when a judge makes a controversial "no case to answer" decision, as also occurred in that notorious case.

When double jeopardy was abolished in the UK five years ago, the law change was made retroactive, meaning a number of unsolved cases predating the law reform have resulted in retrials.

However, Attorney General Kim Wilson said Bermuda's new law will not be retroactive — meaning it will only apply to cases going forward, and will not help in the Middleton case and other unsolved cases where someone has already been tried and acquitted.

Sen. Wilson has previously explained that the lack of retroactivity was a policy decision made by the Government based on Bermuda's Constitution, which aims to prevent a person being punished twice for an offence arising out of the same set of facts or tried repeatedly for offences arising out of the same circumstances.

She pointed out that the UK does not have a written Constitution like Bermuda does.

However, campaigners for justice in the Middleton case are not happy about that.

Rebecca's father, Dave Middleton said: "This proposal by the Attorney General Kim Wilson to modify the double jeopardy rule is, in my opinion, a move in the right direction.

"We have talked of this in the past and I have not changed my mind on the matter."

However, he said: "I would like to see this legislation open to allow past cases also. There is no time limit on taking some crimes, such as murder, to trial and it seems a continuity in law would allow for past cases also."

He said he hoped the legislation would be supported by all MPs and added: "When enacted, the very nature of this legislation would require the Attorney General's office, the Police and the defence attorneys to work more closely together on any case, thus reducing the number of cases that would require revisiting under the double jeopardy rules."

Middleton family friend Rick Meens said: "Personally I'm happy the Bermuda Government has finally decided to announce plans to change the laws regarding double jeopardy. However, I am saddened by their unwillingness to make the law retroactive.

"I can only hope that they reconsider their position and make the law retroactive, and allow all the families that have faced the same walls as Becky did to finally receive justice for their loved ones."

Mr. Meens has written to Sen. Wilson to share his views.

Colin Coxall, who was Police Commissioner at the time of the Middleton murder and previously worked as a senior officer in the UK said: "When we did this in the UK we opened all old cases, and some outstanding successes have been achieved going back for many years mainly old rapes and murders that lacked DNA evidence.

"I think it is quite disgraceful that they have decided to limit the legislation and that old cases such as Rebecca Middleton will not be included."

Meanwhile, defence lawyer Elizabeth Christopher complained that Sen. Wilson did not consult with local barristers over the draft act.

"I'm not just concerned about this particular bill but the plethora of bills in respect of criminal matters such as the 28-day detention (under the Firearms Act) and the wiretapping (under the Telecommunications Act). They are not being consulted upon with the Bar Association," she said.

Ms Christopher is also concerned over the abolition of double jeopardy because "there's the threat somebody could falsely allege a jail house confession and 20 years later you're facing the same thing that you went through before, the same horrors and expense of going through a trial".

Ms Christopher added that a move to allow cases to be reopened on the basis of fresh new evidence is a potential problem since Bermuda's courts — unlike UK courts — do not have strict written rules stating what evidence prosecutors are obligated to disclose to defence lawyers and there is some confusion about how the law applies.

She said without that "safeguard" of disclosure in place, the issue of what constitutes fresh evidence could be a "minefield" for Bermuda courts.

And she added: "You don't want to have retroactive legislation. It's only in the most exceptional circumstances that you deploy it. Even in the UK, when they decided to do that, at least they had a long history of having the safeguards I'm talking about in effect and in force. They have a long history of clear disclosure rules being deployed and respected.

"All of this should have had adequate consultation. There always has been in the past with our Attorney General's office. Furthermore, in the UK this legislation was only contemplated as affecting a very limited amount of cases and it would perhaps only be one in 20 or 50 years in Bermuda. Why rush to pass it without consultation?

"People might say the current law favours the defendant, but it exists to give the person on the street some rights against the Goliath of the state. The law as a whole seeks to balance the individual against the state, with the state far mightier."

Ms Christopher also expressed a concern that the proposed amendment allows for appeal on a question of fact alone. Although she could not say whether this exists in the UK legislation, she is concerned it could lead to the appeal court being invited to reconsider a jury's finding of fact.

"That would be a very sad day indeed," she said.

United Bermuda Party MP John Barritt has campaigned for several years for the double jeopardy rule to be changed. He has pushed for amendments to the Court of Appeal Act on two occasions in the past, but had them rejected by the PLP Government. He has another bill waiting on the order paper, more wide-ranging than the one from Sen. Wilson, as it covers all crimes rather than just murder. It is also open on the issue of retroactivity, leaving it up to the Court of Appeal to decide which cases should be reopened.

However, Mr. Barritt put it on the back burner on Friday after failing to gain Government backing.