Defence lawyers yesterday welcomed a move to seek a ruling on whether constitutional issues can be raised at the start of a trial if they believe their clients might not have a fair hearing.

The Royal Gazette reported yesterday that lawyers Delroy Duncan and Victoria Pearman have issued a summons requesting a hearing with Chief Justice Austin Ward to see if these issues can be raised. They argue that the Misuse of Drugs Act reverses the assumption in the Constitution that a defendant is innocent until proven guilty.

They say the Act forces a defendant in possession of drugs -- perhaps in luggage or received in the post -- to prove he had no knowledge the contents were illegal.

This, they argue, switches the burden from the Crown proving guilt to a defendant proving innocence, which, they claim, violates the right to a fair trial.

Judge Charles-Etta Simmons on Monday freed Tyrone Calvin Simmons, 27, and Shaddonna Kelly Trott, 20, of Hamilton Parish, who were accused of importing $500,000 of heroin, after ruling there was no case to answer.

She did not permit argument on the Constitution, but did allow submissions on whether the Misuse of Drugs Act violated the European Convention of Human Rights, which is incorporated into Bermudian law.

Mr. Duncan and Ms Pearman want the Chief Justice to rule if constitutional issues can be discussed at trial.

Lawyer Elizabeth Christopher said yesterday: "I welcome it every time the Constitution is raised. There has always been an aversion to deploying the Constitution in legal proceedings but the courts are going to have to come to terms with how to deal with the issue when a constitutional challenge is raised.'' Agreeing that the Misuse of Drugs Act reverses the burden of proof, she added: "The Act is a very harsh provision for any defendant to deal with and I would welcome any steps taken to temper that provision.'' Richard Horseman said: "The Constitution is there for a purpose and it may not be appropriate to raise it during a trial, but prior to a trial I would think it would be appropriate to hear an application regarding the constitutionality of the law.

"If the issues can be ironed out in advance and decided in favour of the defendant it saves the time and cost of a trial if there are constitutional issues.

"The Misuse of Drugs Act definitely reverses the onus of proof to the defendant and I definitely think the burden should be on the prosecution.

"It is very easy for someone to have a package in their possession and not know what's in it for whatever reason and there is the risk the individual can be sent to jail.'' Mark Pettingill said: "On the face of it, there might be a conflict between the Misuse of Drugs Act and the constitutional right to a fair trial, but that will be the hurdle they will have to overcome on a constitutional issue.

"It's an extremely interesting point. The Constitution is the umbrella over all laws and when there's a conflict, the Constitution should take precedence.

Bermuda Bar Association president Trevor Moniz said: "If someone has a concern, they can bring it to the Bar Council, and if we think it has merit, we'll appoint a sub-committee to look at it, which would probably include the persons who raised it.''