The stand taken by the defence lawyer of two former financial services company directors facing money laundering charges is a classic example of why justice must not only be done but also be seen to be done.
His clients, who, he says, have gone bankrupt as a result of the haphazard way their case has been handled, have been arraigned in their personal capacity. However, the legal counsel is arguing that the prosecution was aware “from day one” that they had made no personal illicit gains.
This has been confirmed in court by a police inspector from the anti-money laundering unit. The officer testified that the investigations showed no personal gains from any underlying criminal activity had been acquired by either of the two co-accused.
As if wanting to make sure she was understanding matters correctly, the presiding magistrate asked: “So let me make this clear. In their personal capacity there were no illicit gains or profits?”
“Nothing,” the office replied without hesitation. “There were no funds accrued to them in their personal capacity.”
Notwithstanding the fact that it seemed the investigators were not suspecting that any of the two benefitted from any criminal activity, on arraignment, the prosecution still demanded and obtained a court order to freeze their assets. That, their lawyer informed the magistrate, effectively destroyed “their business, their families and their lives”.
But that is not what justice is all about. Justice entails the correct application of existing laws to judge and, where deemed necessary, punish criminals. Arbitrariness and justice are likely to clash but rushing to be seen as treating everybody equally, irrespective of what preliminary investigations might indicate, could be just as lethal.
The previously mentioned police inspector told the magistrate the “direction” at the time was to charge both co-accused in their personal capacity. He was unable or unwilling to say from where that “direction” originated, noting that a “nucleus of persons” had been involved in the investigation.
Of course, the buck stops somewhere and, in this case, responsibility must squarely be shouldered by the attorney general and the commissioner of police.
The defence lawyer made it amply clear he intends to take the matter further. Whoever made the decision must bear the consequences. “I will make sure to seek out whoever gave that direction. I want to bring him to light and make him pay back,” he pledged.
Many would support that stand, also because the matter can, and does, arise in civil cases. In one such civil dispute over works valued at a few thousand euros, a contractor applied for a freezing order for more than four times that amount. A magistrate rejected the request but, when a second application was submitted, the order was issued.
This, therefore, is not only a question of lack of accountability but also consistency.
The lawyer in the money laundering case pointed a finger at the attorney general, accusing her of being bent on “breaking” people simply because they were “friends of Keith Schembri, Robert or Alfio”. He is not fully correct for, if he were, Joseph Muscat and Konrad Mizzi, to mention just two prominent figures, would also be in the dock and have their assets frozen. But one thing is clear: the rules governing freezing orders need urgent attention.
Lack of consistency and arbitrariness evidently prevail and, what is worse, nobody seems to be held accountable.
As things stand, the way freezing orders are issued risk substituting justice by revenge.