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Group calls for legal aid change ahead of major court case

The Bermuda Equal Justice Initiative says it is dedicated to fostering positive change within the legal system (Photograph supplied)

A justice advocacy group has urged the Government to amend legislation that will enable funding for overseas King’s Counsel to argue complex cases on the island when higher-level expertise is needed.

The Bermuda Equal Justice Initiative, a non-profit that champions defendants of less economic means, highlighted a breach in Bermuda’s legal system that meant “legally aided defendants are deprived of the high level of expertise that could potentially affect the outcome of their trials”.

Its argument revolves around a murder case with potentially profound consequences for the island’s courts.

Legal aid enables people with limited funds to get legal help and representation, paid for by taxpayers.

There were 225 applications to the Legal Aid Office in 2021-22, with more than half of them for criminal matters.

In a petition, the BEJI explained: “This legislative gap means that even in the most serious, novel, or complex cases, legally aided defendants are deprived of the high level of expertise that could potentially affect the outcome of their trials.”

The body wants the government to amend the Legal Aid Act 1980 to “empower the Legal Aid Committee to fund overseas King’s Counsel when the Bermuda Bar Association and the Supreme Court of Bermuda determine that a case warrants such expertise”.

The BEJI said that for more than 20 years, the Legal Aid Committee “routinely appointed overseas King’s Counsel to represent legally aided defendants charged with serious offences like murder and premeditated murder”.

It said the island’s legal fraternity gained “invaluable expertise” from overseas King’s Counsel, citing examples including the late John Perry, KC, Courtenay Griffiths, KC, and Jerome Lynch, KC.

The BEJI said such lawyers imparted “profound knowledge of the law” and deployed their “natural talent to teach young lawyers and to make compelling, complicated legal submissions to the courts”.

However, the non-profit said the LAC’s position had since changed.

The organisation said the LAC “now holds the view that it must, as a matter of law, refuse to fund overseas KC even in circumstances where the Bermuda Bar and the Supreme Court have determined that the case warrants the special admission of overseas counsel to conduct the case”.

According to the BEJI, the “change of position is having and will continue to have a profoundly negative impact on the fairness of trials in Bermuda”.

It said that the switch in views had been documented during the LAC’s submissions to the Court of Appeal two weeks ago in a hearing in which a man facing trial for murder sought to have a British-based KC represent him at his trial.

The Royal Gazette reported in March 2023 that the LAC told the defendant, Devon Hewey, that he must instruct a specific lawyer it had chosen, or propose another local senior lead counsel with appropriate experience.

While Mr Hewey had requested to be represented in court by a British-based KC, the committee determined that the matter would be suitable for experienced local counsel.

Mr Hewey launched a judicial review of the decision, arguing that the LAC had acted “arbitrarily” and outside of its powers.

He said that the body failed to provide sufficient reasons for refusing to fund overseas counsel.

Acting Puisne Judge Alexandra Wheatley wrote: “Any applicant seeking legal aid assistance must always have at the forefront of his or her mind that the granting of a legal aid certificate does not amount to funding of whomever he or she wishes to represent him or her before the court.”

She added: “A legal aid certificate is not a blank cheque to be handed out to whomever an assisted person desires.

“There must be checks and balance in place to ensure that justice is not only done but seen to be done.”

Acting Justice Wheatley said that it was “unmistakable” that the LAC intended to ensure that the defendant was provided appropriate representation.

Last week, the Court of Appeal upheld the ruling by the Supreme Court.

Justice of Appeal Ian Kawaley, in a decision backed by his two fellow panel judges, found that because Mr Hewey relied on legal aid to fund his defence, he did not have a right to choose his own lawyer.

However, Mr Justice Kawaley acknowledged that the defendant’s choice might be limited, noting: “After all, it is a notorious fact that the number of senior lawyers involved in active criminal private practice is disturbingly small.”

Court of Appeal Justice Anthony Smellie wrote: “While the outcome of the applicant’s appeal is compelled by the present state of the statutory scheme, the circumstances of his case have brought to the fore the importance of having a strong and experienced Bar for the administration of criminal justice in Bermuda.”

Court of Appeal President Sir Christopher Clarke, the third member of the panel, expressed hope that Mr Hewey and the LAC “will co-operate so as to secure a suitable pair of Bermuda counsel to represent the appellant at the retrial, which needs to be heard as soon as is reasonably possible”.

He added: “Lead counsel will need to be someone who can realistically be expected competently to cross-examine the experts in relation to the various issues as to the significance (or lack of it) in relation to the presence of one, two or three components of gunshot residue.”

The BEJI said that, at present, only one KC ran a private practice listed on the Roster of Counsel where defendants would be able to select representation.

The group added: “The unfortunate result is that legally aided defendants must wait until their cases are appealed to Bermuda’s final appellate court, the Judicial Committee of the Privy Council, to benefit from the expertise of overseas King’s Counsel.”

The BEJI said that over the past two years, two Bermudian men convicted of premeditated murder and firearm use had their convictions quashed by the council.

It said: “These appeals involved important legal questions regarding the admissibility of gunshot residue and DNA evidence, as well as the duties that expert witnesses owe to the courts.”

If the Legal Aid Act were to be amended to allow funding for KCs, the organisation said it would “enhance the skill and experience of local counsel by enabling them to work under the guidance of highly specialised experts”.

It said the reform would “ensure fair and constitutionally compliant trials, thereby reducing the likelihood of costly appeals”.

In its petition, the BEJI urged the Government to acknowledge “the increasing difficulty of maintaining a robust and skilled criminal Bar in a small jurisdiction like Bermuda, where only circa six counsel are deemed capable of conducting serious criminal cases”.

The organisation added: “With most of those six counsel either approaching or already past the retirement age of 65, the question must be asked what will be the state of the Bermuda Criminal Bar in the next decade if less experienced counsel are deprived of the experience of working with overseas experts.”

The Gazette reached out to the Government as well as a member of the LAC for a comment on the BEJI’s petition.

However, no response was received by press time last night.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers