The judicial review of the Rebecca Middleton case today is a precedent-setting event in Bermuda, according to one of the lawyers involved.

It will see top human rights lawyer Cherie Booth QC argue that the decision last year of Director of Public Prosecutions not to reopen the 11-year-old case and press fresh charges against the suspects was wrong.

According to Kelvin Hastings-Smith, also working on the case for the Middleton family, judicial reviews are common in Bermuda but he has never heard of one before attacking a decision not to prosecute.

“If the court agrees it doesn’t then mean there will be fresh charges. If the court is with us then the court can order that the decision be quashed and it goes back to the DPP, who will have to consider her position,” he explained.

Becky Middleton was tortured, raped and murdered at a remote spot at Ferry Reach, St. George’s in July 1996 while on vacation from her home in Belleville, Ontario.

Kirk Mundy and Justis Smith were arrested, with Mundy claiming to have had consensual sex with Becky. He said he found Smith killing her when he returned from washing himself in the sea.

Before Police completed forensic tests, prosecutors accepted Mundy’s guilty plea of accessory after the fact - meaning he knew a crime had been committed and assisted or sheltered the offender — while Smith was charged with premeditated murder.

In October 1996, Mundy was sentenced to five years behind bars for the accessory charge.

Although new forensic evidence later came in that led to him being charged with murder along with Smith, the Privy Council ruled in 1998 that this prosecution could not go ahead.

Later that year, Smith went on trial for premeditated murder, but Judge Vincent Meerabux ordered jurors to acquit him part way through the trial, ruling there was no case to answer.

The judge’s decision was described as “surprising” by the Privy Council, but it said it was not possible to overturn the decision.

Becky’s family has campaigned ever since to have fresh charges laid against Smith — now 28 — and Mundy — now 31. The former is a free man while Mundy is serving time for an armed robbery he was on bail for at the time of Becky’s death. He will be deported to his native Jamaica upon his release.

Dave Middleton, Becky’s’s father, requested in 2004 that Director of Public Prosecutions Vinette Graham-Allen review the case and consider fresh charges against the pair. It is not possible for them to be re-charged with murder under Bermuda’s ‘double jeopardy’ legal principle — still in place despite being abolished in England and Wales in 2005 — that prevents the same person being tried twice for the same crime. Mr. Middleton therefore asked Mrs Graham-Allen to consider alternative charges of serious sexual assault, kidnap or torture.

Deciding against this in March last year, she said it was not possible because the constitution also prevents someone being tried for a second time on a charge arising out of the same facts as the first.

“The family was obviously devastated by the decision,” said Mr. Hastings-Smith. His firm’s suggestion that Mrs Graham-Allen’s decision could be appealed to the Supreme Court prompted the two-day hearing kicking off today.

Ms Booth, a human rights specialist, was approached by the Middleton family and agreed to take on the case. She will be lead counsel along with a team from Appleby, Bermuda. Another British QC, James Guthrie, has been enlisted by the DPP.

Should Mr. Justice Ground decide that the DPP was correct not to re-open the case, there are still avenues open to the Middleton family. They could launch an appeal or pursue a private prosecution against the suspects in Bermuda or even the European courts.

However, Mr. Hastings-Smith said: “Our focus at this time is in seeing the judicial review process through to its conclusion.”