The Court of Appeal has refused to grant a man accused of murder leave to argue before the Privy Council that he should have a King’s Counsel represent him at trial.

Devon Hewey, who is charged with killing 22-year-old Randy Robinson on March 31, 2011, had argued that the Legal Aid Committee should appoint a King’s Counsel based in Britain to defend him.

However, the Supreme Court found that the LAC had no statutory power to appoint external overseas counsel and the decision was later upheld by the Court of Appeal.

Mr Hewey sought to bring the matter to the Privy Council in London, arguing that the case posed a question of “great general or public importance”.

The Court of Appeal denied leave stating that the appeal was based on the court’s application of “settled law” and, as a result, was only really of importance to the applicant.

Justice of Appeal Ian Kawaley, in a ruling backed by two fellow panel judges, said: “The appellant in reply purportedly ‘accepted’ these legal principles, but doggedly insisted the proposed grounds of appeal raised questions of public importance.

“These arguments appear to assume this court’s decision is arguably wrong, without grasping an undoubtedly unappealing nettle and seeking to demonstrate why it is arguably wrong.”

The appeal arose from Mr Hewey’s request to the LAC to appoint Richard Thomas, a King’s Counsel in Britain, to represent him at trial.

The committee turned him down, 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 upheld the decision in June.

Mr Justice Kawaley said in that judgment 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”.

“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.

In his application for leave to take the matter to the Privy Council, Mr Hewey argued that the Court of Appeal was wrong to hold that the LAC had no power to assign or authorise the instruction of overseas counsel.

The judgment stated that paralegal Eron Hill, who was allowed to address the court for Mr Hewey as a McKenzie Friend, also filed supplementary submissions that relied on policy guidelines issued by the LAC after the initial Court of Appeal decision.

Mr Justice Kawaley, however, wrote: “I can see no conceivable way in which any such policy guidelines can undermine or impact upon, in any legal way, the soundness of our findings as to the interpretation of the Legal Aid Act 1980.

“In my judgment, there is no genuine dispute as to the proper construction of the relevant provisions of the 1980 Act. It is clear that foreign leading counsel may not be assigned as the law currently stands.”

The Bermuda Equal Justice Initiative, a non-profit that champions defendants of limited economic means, launched a campaign this summer for amendments to allow funding for overseas King’s Counsel to argue complex cases on the island.

The group 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”.

In a petition, the BEJI said: “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.”

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