The Attorney General’s Office is to abide by law and that means giving a motivated decision when refusing access to criminal records, a judge has declared.
“Be you never so high, the law is above you,” stated Mr Justice Christian Falzon Scerri, choosing to quote an English judgment and applying it to the Attorney General in proceedings where the state prosecutor was sued by a woman left permanently debilitated in a traffic accident.
The case stemmed from a crash that took place on Tal-Barrani Road, Tarxien on February 10, 2020 when Samira Borg was riding pillion on a Yamaha bike driven by Karl Grech.
It was dark and the driver had to swerve suddenly to avoid some concrete barriers blocking the road, crashing into the central strip.
Both driver and passenger were grievously injured and Borg ended up suffering a 5% permanent debility.
A magisterial inquiry into the accident was wrapped up in April 2022 and the woman, through her lawyers, sought a copy of the proces verbal from the AG’s office.
But to no avail.
The office replied that it was a matter left to the AG’s discretion.
A judicial letter sent by the woman’s lawyers was met with a reply stating that at that stage, it was “not in the best interests of justice” for access to be granted.
However, the AG did not exclude that access could possibly be granted in future.
Borg took her grievance to court by filing an action for the judicial review of the AG’s decision.
Meanwhile, police pressed criminal charges against the motorcyclist for dangerous and reckless driving.
However, in April 2022, the man was cleared since the charges were time-barred.
Borg’s lawyer managed to obtain a full copy of the proces verbal from the records of the case against the driver.
The AG thus argued that Borg no longer had a juridical interest to pursue further with her action.
But the First Hall, Civil Court, presided over by Mr Justice Falzon Scerri, observed that the parties had not agreed on who was to shoulder the costs of the suit and neither had Borg dropped the case. Indeed, Borg insisted that her action had not been capricious.
The court had to delve into the merits of the claim so as to decide upon the costs and thus had to assess whether the AG’s decision was legal and reasonable.
Borg had requested the proces verbal to be in a position to decide whether to file a civil case over the accident and if so, against whom.
The AG could not expect to be let off the hook simply by saying that she had not given the documents to anyone else or that she would do so in future, remarked the court.
And simply denying Borg’s request saying that it was “not in the best interests of justice” was not sufficient motivation as required by law.
The AG could not proffer such a refusal, lacking motivation, to escape judicial scrutiny, went on the judge.
Whether they liked it or not, the AG’s office, like every other public authority, was to abide by the law and since the law dictated that the AG was to give reasons for such decisions, then she had to do so.
During the proceedings, a lawyer from the AG’s office had declared under oath that the proces verbal was not given to Borg for fear that the motorbike driver might find out and possibly abscond.
But the court was not at all convinced, pointing out that, ironically, the man had not been arrested and, moreover, when prosecuted he was eventually cleared because the charges were time-barred.
Pronouncing itself “highly concerned and sorry” at the way the case was dealt with, the judge upheld Borg’s request and declared that the AG’s decision was null and void.
All legal costs were to be shouldered by the AG since this case was instituted because that office had not supplied a proper reply.
The court also remarked that it failed to understand why the AG, while aware that the dispute was left pending because of the costs issue, opted to inflate further those costs by filing a second reply, adding on new issues and pleas for the court to decide upon.
Lawyers Vincent Galea, Alan Zerafa and Andre Portelli assisted the applicant.