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Justice campaigner laments ‘limited’ pool of criminal lawyers

The Dame Lois Browne-Evans building in Hamilton, where Magistrates’ Court is located

The Ministry of Legal Affairs has admitted that there is a limited number of very experienced criminal lawyers in Bermuda — and a justice campaigner claims it is a worsening problem for those on legal aid.

Eron Hill, who runs the Bermuda Equal Justice Initiative, told The Royal Gazette that there were only six local lawyers who regularly represented defendants in receipt of legal aid, with one approaching retirement age and another beyond it.

The paralegal said that less experienced lawyers had been denied the opportunity to work on serious criminal cases by the Legal Aid Committee, adding: “It begs the question, how are we going to sustain the longevity of the criminal Bar?”

The ministry’s admission came during a review by the Information Commissioner’s Office of its response to a public access to information request from Mr Hill.

He had asked the ministry for various records that related to legal aid, including the guidelines used by the Legal Aid Committee to determine the suitability of counsel to handle a particular case, but he was refused as no such record existed.

Mr Hill appealed to the ICO, which was told by the ministry that there were no guidelines, but that a comprehensive policy on “counsel assignment” had been drafted and would be reviewed by the Attorney-General.

In a decision issued last month, Information Commissioner Gitanjali Gutierrez wrote: “The ministry headquarters emphasised that, even once the policy is issued, decisions about counsel assignments will still likely be subject to the [Legal Aid] Committee’s discretion, for practical reasons.

“For example, due to the limited number of very experienced criminal lawyers on island.”

Ms Gutierrez said she was satisfied that though there were policies and guidelines for the Legal Aid Committee published on the Bermuda Bar Association website, no written policy on counsel assignment existed.

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 those for criminal matters.

The official Legal Aid Roster lists 19 lawyers who deal with criminal legal aid work, but Mr Hill — who agreed to be identified as the Pati requester for this article — claimed that many did not routinely defend legal aid clients in criminal cases.

He cited, as examples, Auralee Cassidy, who now sits as a magistrate, and Mark Pettingill, an assistant justice.

Mr Hill named Charles Richardson, Victoria Greening, Archibald Warner, Marc Daniels, Elizabeth Christopher and in-house legal aid counsel Susan Mulligan as regularly representing clients.

He added that former senior magistrate Mr Warner, 75, was past retirement age and Ms Christopher, 62, was approaching it, with both being among the most experienced criminal defence lawyers on island.

Mr Hill has previously been vocal about a cost-cutting change to the law several years ago that meant that legal aid clients had to be represented by in-house counsel from the Legal Aid Office, except in certain exceptional circumstances.

He has criticised Legal Aid Committee decisions to refuse to appoint less experienced attorneys to represent several prisoners appealing their convictions for murder, claiming that the men were being denied their right to the lawyer of their choice.

He has assisted, in a personal capacity, some prisoners pursuing appeals, arguing that they should have access to King’s Counsel in Britain.

Mr Hill told the Gazette that he was concerned about the lack of available counsel on the island and how that could impact those accused of the most serious crimes, as well as those involved in trials with multiple defendants.

“At what stage are we progressing the skill level of the Bar?” he asked.

“It’s just the practicality of the system. It’s no longer just about right now but also about where we are going to be in ten years.”

The Legal Aid Office annual report for 2020 to 2022 stated: “The broadening of the scope of the work done by legal aid counsel, from largely civil matters to include more criminal matters such as murders and firearms matters, will provide ripe opportunities for rapid growth and the acquisition of valuable experience.”

There was no response to a request for comment from the Ministry of Legal Affairs.

The Gazette asked as many of the other lawyers on the roster as possible if they still took on criminal legal aid cases. Only one replied, stating that she no longer did such work.

Vaughan Caines, who sits on the Legal Aid Committee, recently represented Julian Washington in his successful appeal to have his conviction for murder overturned at the Privy Council.

To see the response to Eron Hill’s Pati request, the ICO decision, the Legal Aid Roster, and the policy and guidelines that exist for the Legal Aid Committee, see Related Media

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