A man accused of murder has lost his latest legal bid to have a British silk lawyer defend him at trial.

Devon Hewey, who is charged with killing 22-year-old Randy Robinson on March 31, 2011, took his civil case to the Court of Appeal, which yesterday rejected his argument that he had a right to the lawyer of his choice.

Justice of Appeal Ian Kawaley, in a ruling 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.

The former Chief Justice upheld an earlier Supreme Court judgment which found that the Legal Aid Committee had no statutory power to appoint external overseas counsel and Mr Hewey would need to be represented by an attorney practising in Bermuda.

Mr Justice Kawaley acknowledged, though, 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.”

The appeal arose from Mr Hewey’s request to the Legal Aid Committee to appoint Richard Thomas, a King’s Counsel in Britain, to defend him at his Supreme Court trial.

The committee said no, insisting he either instruct an in-house government lawyer it had chosen or propose another local senior lead counsel with appropriate experience.

Mr Hewey challenged the committee’s decision in the Supreme Court, but Acting Puisne Judge Alexandra Wheatley ruled against him in March.

She wrote in her judgment: “A legal-aid certificate is not a blank cheque to be handed out to whomever an assisted person desires.”

Mr Hewey asked the Court of Appeal to overturn the ruling, but the three-strong panel refused.

Mr Justice Kawaley said it “was clear beyond sensible argument” that the Legal Aid Act limited who could be appointed by the committee as an alternative to in-house legal aid counsel to “barristers and attorneys who are in active private practice in Bermuda”.

Those lawyers are listed on a roster established under section five of the Act.

“The purpose of the roster is to create a pool of lawyers which can be drawn on from time to time in connection with various cases,” wrote the judge.

He said Mr Hewey and his advisers “had creatively sought to get Mr Thomas KC through the section 5 gate by applying for his special admission to the Bar …” but it was fruitless.

“A foreign counsel who has been specially admitted to the Bermuda Bar for a particular case cannot possibly be considered to be ‘in active private practice in Bermuda’ in the requisite sense, as the acting judge rightly found,” he wrote.

Mr Hewey was assisted in his appeal by paralegal Eron Hill, who was allowed to address the court as his McKenzie Friend.

Mr Hill asked to give an alternative constitutional argument, but Court of Appeal president Sir Christopher Clarke drew attention to section 6 of the Constitution, which says every person charged with a crime “shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or, where so provided by any law, by a legal representative at the public expense …”

Mr Justice Kawaley said: “There is quite clearly no constitutional right to a publicly funded lawyer of your own choice.

“Parliament is free to choose what level of choice, if any, a criminal legal-aid applicant is entitled to enjoy in the counsel assignment process, subject to ensuring that counsel of the level of competence reasonably required to provide adequate representation is made available.”

He said if the committee assigned counsel who was “demonstrably unsuitable to conduct” a defence in Mr Hewey’s case then he might be able to make a complaint regarding his constitutional right to a fair hearing.

The judge added: “Such an eventuality seemed to us unlikely, based on a cursory review of the section five roster … It is appreciated, however, that there is often a difference between counsel theoretically available and counsel who are actually available, having regard to potential conflicts and other commitments.”

Mr Justice Kawaley then commented on the “disturbingly small” number of lawyers involved in criminal matters — a point also raised publicly by Mr Hill, who runs the Bermuda Equal Justice Initiative, last week.

Panel member Sir Anthony Smellie said Mr Hewey’s case had “brought to the fore the importance of having a strong and experienced Bar for the administration of criminal justice in Bermuda”.

Mr Hill said yesterday that Mr Hewey was still considering the judgment and whether to appeal to the Privy Council in London.

He said the Legal Aid Committee only adopted the position that there was no legal authority for it to appoint overseas counsel a few days before the Court of Appeal hearing on June 19.

“This was surprising because it’s something that they’ve routinely done for the better part of the last two decades,” he added.

Mr Hill listed 11 cases when legal aid defendants here have been represented by silks, in murder and attempted murder cases.

He said: “The small cadre of local counsel who are deemed suitable to conduct serious criminal cases in Bermuda have that status because they were trained by the likes of the late great John Perry KC, Courtenay Griffiths KC, and Jerome Lynch KC, all of whom acted as lead counsel for legally aided defendants in the last two decades and, in doing so, imparted their profound knowledge of the law, not just for the benefit of our jurisprudence but also for the counsel who worked under them.”

Mr Hill added: “Irrespective of what next steps this appellant takes, we all should be concerned that the administration of criminal justice in Bermuda is being severely affected by the limited number of local counsel sufficiently experienced to provide adequate representation to defendants.”

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