Defendant makes bid to be represented by KC
A man facing trial for murder who has been told he must use a local defence lawyer in order to receive legal aid has claimed that the decision is “unreasonable and without legal foundation”.
The defendant, whom The Royal Gazette has chosen not to identify, wants a London-based King’s Counsel to represent him at his trial.
He received an opinion from a lawyer on island, seen by the Gazette, who said the complexity and public interest nature of matters arising in the case warranted the use of overseas counsel with relevant expertise.
The Crown did not oppose the request and Bermuda Bar Council issued a certificate giving permission for the KC to provide the defence.
But the Legal Aid Committee refused to allow it, telling the defendant he must instruct a specific government lawyer it had chosen or propose another local senior lead counsel with appropriate experience.
The decision follows a change to the law in 2019 which meant clients of the Legal Aid Office – which gets $1.8 million annually from the public purse to provide legal representation to those who can’t afford it – could no longer choose their own counsel but had to use in-house lawyers.
Three exceptions allow Bermuda-based, non-government lawyers chosen by defendants to be instructed in cases where the use of legal aid counsel is: not practical, not appropriate to the nature of the proceedings, or might lead to a conflict of interest.
The defendant, in a statement shared with the RG by his representatives at a local law firm, wrote that legal arguments on “very important case management issues” were due to take place but he found himself “without … counsel of my choice”.
He alleged the committee was “trying to safe keep their treasure trove where the same lawyers are assigned cases despite their clients’ express wishes and despite obvious instances of conflicts of interest”.
The lawyer who gave a legal opinion about his representation wrote: “The defendant is charged with the most serious of offences and faces a substantial term of imprisonment.
“He is aware his case involves difficult and novel points and seeks the best possible representation to ensure those points are handled effectively.”
They added: “In my view, there are no local leading counsel available that would be able to adequately present the case on his behalf.”
The man told a pre-trial hearing that he had worked with the lawyer approved by the Legal Aid Committee before and did not want that lawyer representing him.
The defendant added that he might consider submitting a judicial review application to challenge the committee’s decision.
The Gazette understands that the Legal Aid Committee declined to authorise funding for overseas counsel at a November 22 meeting and granted a certificate appointing a lawyer who works for the Legal Aid Office as lead counsel.
It maintained its position at a February 8 meeting, when it also agreed that legal aid would not be provided for local junior counsel without guidance from an experienced senior lawyer.
Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, told Parliament in July that an amendment to section 12 of the Legal Aid Act which came into force in March 2019 had led to “measurable savings thus far”.
“The justification for implementing an in-house staff counsel model was in recognition that operational efficiencies and savings; institutional knowledge-building; and providing opportunities for a cadre of specialised Bermudian defence lawyers would offer better delivery of services within public spending limitations,” the minister said, as she tabled the Legal Aid Office’s annual report.
“The new model ensures that as many legal services as can now be delivered by in-house staff counsel, in lieu of overly-utilising outside counsel.”
The report showed that in the financial year ending 2018, before the change to the law, more than $1.9 million was spent on external counsel for legal aid clients.
By the end of financial year 2021-22, the cost was reduced by more than 65 per cent to $663,360.
Archibald Warner, a former magistrate and senior legal consultant at Resolution Chambers, criticised the amendment in an op-ed in The Royal Gazette in August 2020 as a "callous, unlawful way to avoid financing a constitutional right“.
The March 2019 law change requiring legal aid clients to use in-house lawyers was brought in as a cost-cutting measure.
The amendment faced a potential challenge in the Supreme Court in 2020 after an application for a judicial review was filed on behalf of a defendant in a criminal case who was refused a legal aid certificate for his lawyer of choice.
The litigant argued the money-saving policy breached their constitutional right to a lawyer of their choice – but it is understood the civil action was dropped after the Legal Aid Committee backed down on its refusal.
Cheryl-Ann Mapp, chairwoman of the Legal Aid Committee, told the RG this week that the committee could not comment on the latest case because legal aid applications were private and confidential.
She added: “However, in general, there is a statutory framework that applies for consistency, fairness and accountability for the public purse and, as such, the Legal Aid Committee will take into consideration the type of matter, its complexity etc.”
She said section 12 of the Legal Aid Act gave the committee power to make the “sole determination as to counsel to be assigned to a matter” and that the “external counsel” allowed for certain cases had to be Bermuda-based private practice lawyers whose names appeared on an official roster.
“Assignment to counsel from the roster is also predicated on counsel’s availability and willingness to take on the case and to be bound by the Legal Aid (Scale of Fees) Regulations 1980,” added Ms Mapp.
