The two main suspects in the Rebecca Middleton murder case should have been re-tried on other charges, Cherie Booth told Bermuda's Supreme Court on Monday.
The decision not to charge Kirk Mundy and Justis Smith with sexual assault and other crimes was a "counsel of hopelessness, damaging in law [that] allowed a culture of impunity regarding sex offences against women in Bermuda," Ms Booth said.
Ms Booth, QC for the family of Miss Middleton, was arguing that Director of Public Prosecutions Vinette Graham-Allen's decision on March 30 last year not to go ahead with charges other than murder against the two men was wrong in law and unreasonable.
James Guthrie QC for the DPP replied that, as great as the injustice caused by flawed decisions in 1996 was, the decision to recharge was the DPP's alone and not for anyone to interfere with - not even the court.
Ms Booth added in the course of her arguments before Chief Justice Richard Ground that the fact that the men had previously been convicted or acquitted of crimes stemming from the facts wasn't enough to stop the DPP from charging different crimes based on the evidence even now.
So, the DPP should have put the case before the court and let it decide whether or not the prosecution should continue.
That, though, would be the wrong approach, countered Mr. Guthrie, saying that her decision was within her discretion and not unreasonable.
The DPP was correct in her interpretation of double jeopardy in this case because, had it gone to trial, the court would have had to stop it.
The prosecution should not drop charges simply because of a vague regret that the defendant would otherwise have to face new charges, Ms Booth said, and it's not an abuse to bring further charges that are proper where there are exceptional circumstances.
And there were exceptional circumstances, she argued: Kirk Mundy lied about Rebecca's consent to sex, there was new forensic evidence showing participation by two people in the crime and the judge's direction of acquittal in Justis Smith's trial was plainly wrong.
Mr. Guthrie later disputed that point, saying that they are not special circumstances that would make a second trial an exception to the abuse of process rule.
If that were so, he suggested, further trials could be conducted in many cases and would provide prosecutors with a free hand to retry cases when they didn't like the results.
Ms Booth said that the Attorney General made his decision on the basis of Mundy's lies and, so, it would not have been an abuse to lay new and different charges.
She also took issue with the DPP's decision on human rights grounds, saying that the European Convention on Human Rights applies to Bermuda to protect victims of crime as much as the people accused of them.
That, she said, included proper investigation and prosecution - something she argued hadn't been done in the Middleton case.
Mr. Guthrie replied that the Convention isn't part of Bermuda law and criticism is misplaced if it says that the DPP should have considered it in her decision.
"The DPP accepts that Rebecca Middleton suffered great injustice and that's a matter of grave regret," he said at the outset of his arguments.
The police investigation early on showed a substantial case against Mundy and Smith, the wrong decisions were taken, and other charges should have been laid.
But, he concluded, the DPP's decision included matters of policy, law and also the wider public interest and she cannot be criticised for a decision that wasn't unreasonable.
