A suspect drug trafficker has successfully challenged the admissibility of a statement taken down by police while interrogating him 11 years ago when his lawyer was not present.
The often-contested issue once again came to the fore in a pronouncement by the Constitutional Court, stating that “different governments over the years” should not have delayed updating the system in line with the direction taken by the European courts.
Morgan Onuorah had been arrested in February 2010, over his alleged involvement in a drug deal. He pleaded not guilty upon his arraignment over drug trafficking conspiracy, supply and possession of cocaine as well as money laundering.
At the time of his arrest, Onuorah could only consult his lawyer before being interrogated.
Maltese law was amended in 2016 to bring it in line with a European directive, extending the right to legal assistance to the suspect during his arrest and interrogation.
The Constitutional Court observed denying legal assistance during interrogation was viewed by the European Court as a “procedural defect” which could manifestly “contaminate the entire criminal proceedings”.
Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul said it was the duty of governments, throughout the years, to update the local system in line with European judgments, rather than wait until 2016 to introduce the relative legislation.
Allowing such a police statement at the trial could give rise to a “clear danger” of having the jurors rely on it as evidence when reaching their verdict, said the court, noting further that such verdict did not require any explanation of the reasoning behind the jurors’ decision.
In this case, Onuorah had filed constitutional proceedings in 2019, challenging the statement he had released under interrogation and claiming that his right to a fair hearing was breached since there had been no lawyer to assist him.
The First Hall, Civil Court in its constitutional jurisdiction, threw out the claim last year, upholding the Attorney General’s argument that there could be no breach of rights since the criminal trial had not even commenced yet.
However, that court did acknowledge recent pronouncements by the European Court urging “great caution” when admitting such unassisted statement in evidence and outlining relevant factors to consider so as to ensure the overall fairness of the proceedings.
Onuorah filed an appeal.
His lawyers argued that since the right to legal assistance during interrogation was non-existent under Maltese law at the time of his arrest, there had been no one to point out the consequences of his statement and the possible risk of self-incrimination.
When delivering judgment at appeal stage, the Constitutional Court observed that although the absence of a lawyer during interrogation did not, on its own, amount to a breach of rights, the right to a fair hearing could be breached if the suspect’s statement were to be used later in the criminal proceedings.
Consulting a lawyer before interrogation, having legal assistance in subsequent proceedings and allowing parties to put forward evidence, did not suffice to remedy the lack of having a lawyer assisting the suspect during police interrogation.
Whilst ordering a copy of its judgment to be inserted in the criminal records, the court declared that the accused’s statement was not to be admitted as evidence by the Criminal Court presiding over the trial.
Lawyers Franco Debono, Marion Camilleri and Amadeus Cachia assisted the appellant.