Editorial: Hiding in plain sight

Joseph Muscat has spent years arguing that leaks from the Vitals magisterial inquiry rendered it illegitimate.

The former prime minister never quite spelt out how those presumed leaks changed or damaged the facts being investigated. Last week, we got a clearer picture.

Muscat’s lawyers have practically admitted he deleted his phone data after hearing rumours that police were coming for him. 

There was “banter” about an imminent raid, lawyers said, glossing over the fact that the law does not quite justify the destruction of evidence based on “banter”.

On the contrary: it is a crime to “destroy or alter the traces of, or any circumstantial evidence relating to an offence”, according to Malta’s criminal code. That crime is liable to anything ranging from a €2.33 fine to a one-year prison sentence.

Of course, it is difficult to know if Muscat destroyed evidence of a crime, given the phone’s data itself was potential evidence. But the former PM has given prosecutors a leg up by publicly linking his phone and its data to a court investigating him for crimes.

Muscat’s argument in the run-up to the conclusion of the inquiry was (to paraphase): information from the inquiry was leaked to my enemies, so I cannot trust the magistrate leading the probe.

But now we know that the “banter” also reached him and as a result of those leaks, he potentially destroyed evidence.

That is not a good look for Muscat.

The former prime minister’s second major objection to the Vitals inquiry appears to be faring somewhat better for him. Muscat – and other defendants in the Vitals case – have taken aim at the court-appointed experts whose work led to criminal charges against them.

Their first broadside was launched at a British expert who acknowledged that while he was working on the case, he was also negotiating a consultancy deal with the Malta Police. The expert, Sam Sittlington, insisted the two were unrelated.

Then came complaints about a Serbian forensic accountant’s qualifications. But perhaps the biggest blow to the Vitals case is expert (and lead investigator) Jeremy Harbinson who is refusing to fly to Malta to testify, insisting he was not paid to do so and that his work was not meant to be used for prosecutions.

His refusal to testify in the case must be a major blow to prosecutors.

To add insult to injury, the law courts do not have a formal contract outlining his responsibilities. Harbinson – whose firm received more than €18 million from Maltese taxpayers for work in various inquiries over the past decade – says his report did not mention criminal charges and that he is refusing to testify in Malta because he fears for his safety.

This is not a good look for the prosecution.

All this ineptness should weigh heavily on the country’s forces of law and order.

Sadly, our police officers have a well-documented history of reticence when it comes to seizing data from political figures.

We remember Keith Schembri mysteriously losing his mobile phone just before officers came knocking in December 2019. Perhaps fewer will recall it took police officers around 10 days to search Schembri’s office at Castille after they arrested him. When they finally got there, “someone” had sealed the office. We will never know if anything went missing in the interim.

Going back a few years, we recall an infamous 2016 memo by then-attorney general Peter Grech in which he told police it would be “counterproductive” to seize Nexia BT’s servers. Nexia BT had just been inadvertently exposed for having opened secret offshore structures for Konrad Mizzi and Schembri. 

Nine years later, we are again facing a situation where justice seems to be working against the public interest.