Editorial: Anonymity for the powerful

Our phones started ringing within hours of us reporting a bizarre court decision.

A man who exposed himself to a hotel cleaner and then sexually harassed her was given anonymity by a magistrate because he was a “politically exposed person” in his home country Switzerland.

Swiss journalists immediately caught wind of the story and started calling our newsroom.

They were primarily interested in the criminal’s identity – was it a minister, judge or top prosecutor? But their questions also focused on the court decision itself.

Is it normal in Malta for a court to protect a criminal because he is involved in politics, the Swiss journalists asked. We did not know how to respond.

Malta’s criminal code gives the court unfettered power to decide whose names should be shielded from publication and whose should not. It can decide to hear an entire case behind closed doors, or just particular parts of one.

There are, in theory, good reasons for the court to have this discretionary power. In some cases, anonymity can help protect victims of crimes from being revictimised. In others, it ensures children are shielded from public view. Anonymity can help ensure a jury is unbiased against a defendant and it can also be a useful tool to protect the identity of informants and undercover police officers.

Anonymity, however, is only just if it is applied fairly and consistently. If it is used to shield people in power, then it becomes a weapon.

In the Swiss man’s case, we cannot see a valid reason for protecting the criminal’s identity.

The magistrate said naming him could have a serious impact on his career. And so it should. Voters have a right to know if a person on the ballot sheet has been convicted of sexual harassment.

One retired judge, who spoke to us anonymously, said he had never heard of Article 517 of the Criminal Code being used in such a way. The irony is that the Swiss press quickly identified the man anyway, despite the ban – and it turns out he was just a small business owner who unsuccessfully ran for a council seat in a local election. His political party kicked him out.

Beyond this particular case, there are worrying signs that other magistrates are also inclined to use their power of anonymising court cases to shield politicians from public scrutiny.

Days after the Swiss man’s case, another politician – this time a local one – appeared in court to plead not guilty to having embezzled €2.3 million from MCAST.

When the defence asked the court to ban the accused’s name from publication, the magistrate did not shoot the request down on public interest grounds, as we believe she should have.

Instead, she blamed the media for having pre-emptively reported that the woman in question was to be charged and said there was no point in issuing a ban, given the accused’s name was already public.

“Unfortunately, we know the situation with the media,” the magistrate said, adding that she has “yet to see an accurate article” published.

The implication is that, had the media not revealed the councillor’s identity, she could have banned publication of the woman’s identity.

That sort of attitude is likely to have the opposite effect of the courts would like.

The courts may feel that they, and they alone, have the right to decide what is in the public interest and what is not.

How intriguing, though, that magistrates who are quick to blame the media for identifying criminal suspects have nothing to say about the government’s ability to delete court judgments from an online database, without having to provide any justification.