A request by the prosecution in the second Vitals case for a ‘gagging’ order on the defendants was met with a barrage of objections, in light of reports of Chris Fearne being targeted by a 'smear campaign'. 

A similar request was first put forward by the prosecution at the first sitting in parallel proceedings against former prime minister Joseph Muscat and other top public figures facing criminal charges over their alleged involvement in the fraudulent hospitals concession. 

That request was upheld at the very first hearing by the magistrate presiding over that case.

But in the second lot of arraignments involving the former deputy Prime Minister, Central Bank Governor Edward Scicluna, three former permanent secretaries and other players allegedly linked to the concession, the request by the prosecution for certain restrictive measures was voiced today. 

The prosecution’s request was twofold. 

They asked the court to apply some form of obligation upon the defendants to inform the court whenever they wished to travel abroad. 

“We’re not asking for curfew conditions,” explained AG lawyer Francesco Refalo.

Secondly, they also requested the court to prohibit the defendants from making any public statements or social media comments on evidence and testimonies in this case.

The reason behind such a request was for the prosecution “to safeguard the proper administration of justice.”

“Ultimately that’s our sole intention,” said Refalo, on behalf of the prosecution team. 

A distinction had to be drawn between “what is said in court and reporting about what is said in court. We believe that justice must be done here, in these halls.” 

That request triggered some animated submissions by various defence lawyers. 

Lawyer Franco Debono promptly described it as “one of the most dangerous requests” and one that made little sense, given that this case had been in the public domain for over four years before these proceedings actually started in court. 

“I firmly believe in freedom of expression,” said Debono, adding that journalists had every right to report the court case and generally did a good job. 

“But if the defendants had to rebut any incorrect allegations in their regard, they would be at a disadvantage…Such order would create a lack of a level playing field and equality of arms.” 

Questions were put to prosecuting inspector Wayne R Borg about whether the police had met with any difficulties when tracking or serving summons upon the defendants.

The inspector’s reply was clear and unequivocal. 

“I had no difficulty whatsoever concerning any of the persons charged here.” 

The prosecution’s request was “frivolous” since none of the fears envisaged by the Criminal Code, justifying restrictions on the defendants, existed in this case, argued lawyer Stefano Filletti. 

“To uphold this request, the court would be interfering in the private life of the defendants," he said. 

Although a different magistrate presiding over parallel proceedings upheld such a request, the court is “autonomous and independent” and each case must stand alone, intervened lawyer Michael Sciriha. 

Fearne’s lawyer, Stephen Tonna Lowell, further noted that whereas in Muscat’s case, such orders were imposed at the very first sitting, in this case, Tuesday’s was the sixth sitting and the defendants had always attended court hearings without any problems whatsoever. 

As for the requested ‘gagging order’ it was “very poignant for the AG to come here today trying to shut Chris Fearne’s mouth after what happened yesterday” the lawyer continued, referring to reports of a smear campaign targeting the former deputy prime minister.

“So any Tom, Dick or Harry can say what they want, any blogger or Facebook user can say what they will, but a defendant facing these proceedings, whose future, whose career is being endangered here, is blocked,” stepped in lawyer Giannella De Marco. 

None of the defendants had spoken out over the past five years or so while the magisterial inquiry was still pending.

These proceedings were now public so everyone on social media could say what they wanted, whereas the defendants who are facing the flak “cannot say anything.” 

The prosecution made no request in respect of those “who are prejudicing the course of justice but was instead trying to gag those in here who have never hit back, never uttered a word.” 

“This is incorrect, disloyal and highly unfair,” stressed DeMarco. 

As for the requested information about the defendants’ travel plans, lawyer Charles Mercieca referred to caselaw stating that the prosecution had to justify such request by proving that the defendants would otherwise tamper with the course of justice.

“In this case, the contrary was proved,” said Mercieca. 

One final argument was made about the ‘gagging order’ request. 

If upheld by the court, such a request could even spark abuse, argued lawyer Franco Debono. 

“Someone could exploit the situation, comment as he will, knowing that the defendants would not be able to react.” 

Magistrate Leonard Caruana is expected to deliver a decree on the prosecution’s request in chambers.