Updated 2.45pm

Yorgen Fenech’s bid to have Keith Arnaud removed from the Daphne Caruana Galizia murder case has again been thrown out by a court, with a judge denouncing institutional failures in the murder investigation and Keith Schembri in particular. 

The court said Schembri had failed to flag his "fraternal friendship" with Fenech even as he attended confidential briefings about the ongoing murder case.

Legislators should make it a crime not to declare such serious conflicts of interest, it said. 

Arnaud, on the other hand, had no way of knowing that the two men were linked and could not even trust his superiors, who had leaked information to Schembri and met key players in the case behind his back. 

What is the case about?

Arnaud, who is now a police assistant commissioner but was an inspector at the time, had taken over the investigation after Deputy Commissioner Silvio Valletta was forced to move away after being challenged before the courts by the Caruana Galizia family.

Fenech subsequently filed legal proceedings to have Arnaud taken off the case, alleging that the investigator was providing Keith Schembri, then the prime minister's chief of staff, with confidential information about the case. 

Fenech, who stands accused of complicity in the 2017 murder of Caruana Galizia, has alleged that Schembri was the true instigator of that crime. 

Fenech and Schembri were close friends - something that Schembri never disclosed even after Fenech was identified as a prime suspect in the murder case. 

In a decision on Wednesday, a court ruled that Arnaud could never have imagined that Schembri might have directly or indirectly had some involvement in the case. Nor was Arnaud aware of Schembri’s close friendship with Fenech. 

Fenech claimed Arnaud was bound to Schembri because the OPM chief of staff had helped Arnaud’s wife get a job.

But the court noted that Fenech had only asked for Arnaud to be removed from the case after he was denied a presidential pardon. Before that, he was full of praise for the investigator, despite the facts he was citing now already known to him back then. 

Fenech had also conceded when testifying that Schembri might have obtained information about the case during briefings held at Castille, rather than privately from Arnaud. 

It was Keith Schembri who had a conflict of interest - Judge

Mr Justice Lawrence Mintoff said on Wednesday that if anyone had a conflict of interest, it was Schembri himself.

The former OPM chief of staff, as “factotum and alter ego” of then PM Joseph Muscat, continued to attend the murder briefings at Castille even when middleman Melvin Theuma’s pardon was being discussed. 

He never declared his “fraternal friendship” with Fenech, even after Fenech became a police suspect and had his phone tapped by security services.

The appointment of Keith Schembri as the prime minister's chief of staff was criticized by a judge.

The court said it had "great doubts" about whether "Schembri’s personal interests were prevailing and taking the upper hand against the public interest" in the case. 

Arnaud had ended up in this situation because of someone else's conflict of interest, the court said. 

Fenech had acknowledged receiving information about the case for years from both Schembri and Silvio Valletta - the man who for years was the lead investigator on the case, before Arnaud took over. 

The court said that the "cowardly and disloyal" leaks continued to the extent that the men eventually convicted of carrying out the assassination had themselves been tipped off about their December 2017 arrest at a Marsa potato shed.  

That tip-off placed the lives of Arnaud and his police colleagues “at great risk.”

Even if purely for argument’s sake, Schembri had helped Arnaud’s wife land a job, the front-line investigator would never have done anything to risk the integrity of the investigation nor his life and that of others, the judge observed. 

Arnaud could not even trust his superiors 

Arnaud’s situation was even trickier because he could not trust his superiors.

Former police commissioner Lawrence Cutajar went behind the investigating team’s back when he met Edwin Brincat (il-Ġojja) who was Theuma’s “paternal figure.”

Cutajar and Brincat listened to and discussed Theuma’s secretly recorded conversations - crucial evidence in the murder case against Fenech.

That years-long friendship between Cutajar and Brincat gave rise to another “glaring conflict of interest", the court said. 

Cutajar should never have been the one to make recommendations to cabinet about Theuma’s pardon, given his ties to Brincat, the judge said.

Fenech also spoke differently about former Deputy Commissioner Silvio Valletta, who also leaked sensitive information about the murder.

He excused Valletta's behaviour by saying the former top police officer had passed on information "as stress relief, not because he wanted to reveal some secret." 

It was curious why Fenech only targeted Arnaud and not this other conflict of interest, the judge remarked, noting that Arnaud was also helped by Inspector Kurt Zahra, other police and Europol officers. 

The court said it was convinced that this was because Arnaud and Zahra had concluded that the information Fenech provided purely hearsay and did not justify providing him with a presidential pardon. 

Institutional deficiencies

After concluding that Arnaud had acted in an “upright and correct” manner and that Fenech’s rights were in no way breached, the judge said he wanted to point out various “institutional deficiencies” in the murder investigation.

Primary among those were “the constant leaks of confidential and reserved information” and the possible tampering of evidence as a result. 

That could have had “a devastating effect on the public trust in the police corps, its image and credibility.”

From the very start, at the time of the potato shed raid, the leaks existed. 

Before those responsible for such leaks were tracked down and duly punished, the public would not easily regain trust in the corps’ integrity. 

“The court feels that there are clear indications as to who was responsible and enough evidence to charge these [persons] over such crimes.” 

When the police asked Schembri to hand over passwords for data he stored online in the cloud, he refused to do so, saying that he had sensitive business-related information stored there.

“And the matter stopped there,” remarked the judge.

Not declaring serious conflict of interest should be a crime

Another issue was situations giving rise to conflicts of interest, made even worse when those involved were top officials like the prime minister's chief of staff and the police commissioner. 

The legislator should consider classifying such situations as “most serious criminal offences subject to harsh punishment.” 

It also noted that there appeared to be no formal police protocols in place for the seizure of electronic devices or the use of mobile messaging apps like Signal or WhatsApp.

In spite of such serious shortcomings in the murder investigation, the court was convinced that Arnaud acted in a correct and upright manner even considering the “compromised figure” of ex-Commissioner Cutajar. 

Intervention by politicians should be kept at a minimum

As for the briefings at Castille, the court remarked that in case of such serious crimes, no matter how high profile, “intervention by politicians should be kept to a minimum.” 

And if need be, only technical persons should attend those briefings. 

This applied also to meetings where the granting of a presidential pardon is discussed. 

That exercise should be “a purely technical evaluation and having no political intervention whatsoever would be better.”

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri assisted Fenech.

State Advocate Chris Soler together with lawyers Maurizio Cordina and Miguel Degabriele assisted the Police Commissioner as respondent.