From the Bench: The chain of custody in criminal proceedings
The prosecution should be able to describe how it gathered its evidence, how it was handled, and everything that might have happened to it
In a criminal case, the prosecution is burdened with the onus of proving, beyond reasonable doubt, that the defendant is guilty. And to do that it endeavours to unearth and produce evidence which corroborates its charges against the accused. Any and all evidence produced by the prosecution must be interlinked to fully document the precise trajectory of its accusatory claims.
This leads one to understanding the ‘chain of custody’ principle applied to circumstantial evidence in a criminal court of law.
The Magistrates' Court as a Court of Criminal Judicature in The Police vs Lela Ristic held that ‘circumstantial evidence is much akin to "a chain that connects one end to the other, with a series of links that align with each other and together lead in the same direction".
Foreign jurists are of the opinion that the prosecution should be able to clearly describe how it came by the evidence it produces in court, how it was handled, and everything that might have happened to it, all whilst answering any questions as to who had custody of the said evidence and where it had been stored. Ultimately, this principle is essential for maintaining the integrity and authenticity of evidence, thus preventing any risk of tampering, contamination, or loss.
The idea of a ‘chain of custody’ is enshrined in Articles 667 and 669(1) of the Criminal Code, under which the Court Registrar is burdened with the duty of handling any and all property related to criminal proceedings. Thus, the Registrar must ensure that all property delivered to him is properly catalogued, stored, and preserved in a secure location of his choosing.
Additionally, Article 669(2) bestows the Registrar with the discretion to appoint other individuals to hold specific property on his behalf, albeit subject to the approval of the Minister for Justice. And to uphold transparency, the names of those appointed must be duly published in the Government Gazette.
The whole process commences with the collection of evidence, which must be properly labelled and documented by authorised court personnel. As highlighted above, any subsequent transfer of the evidence must be recorded, including details such as the names of individuals handling it and the exact time and date of transfer. Once collected, the evidence must be securely stored in a controlled environment to prevent unauthorised access or alteration.
Finally, when the evidence is presented in court, the prosecution must demonstrate an unbroken chain of custody to establish the evidence’s reliability and admissibility. Failure to maintain this chain runs the risk of evidence being ruled inadmissible, potentially weakening a case, making this legal concept particularly crucial in the field of Criminal Law, where forensic evidence such as DNA, drugs, or weapons all play a significant role in ensuring a fair and sound trial.
This principle was amply highlighted in The Police vs Nathan Agius, decided by the Court of Criminal Appeal on the 20th of February 2025.
The defendant had been charged with illicit and unauthorised possession of drugs, stemming from an incident which occurred on March 2, 2014, when police officers stopped Agius in Paceville and discovered 24 blue pills suspected to be ecstasy on his person. The Magistrates' Court as a Court of Criminal Judicature ultimately found Agius guilty of possessing ecstasy, handing him a one-year prison sentence accompanied by a fine of €1,000. The court also ordered the destruction of the confiscated drugs once the judgment became final.
Agius appealed this decision, raising concerns about the chain of custody and arguing that the storage of the narcotics was not in compliance with the law. He referred to Article 669(2) of the Criminal Code, claiming that failure to adhere to the legal requirements enshrined therein resulted in a procedural deficiency. He explained that instead of being held by the Director of Health, the narcotics were kept in the custody of the Court Registrar.
This argument stemmed from the existence of Legal Notice 121 of 2002, which provided that by virtue of Article 669(2) of the Criminal Code, the Registrar of Courts, with the approval of the then Minister for Health and the government, formally appointed the Director of Health to hold, on his behalf, dangerous drugs.
When reviewing this argument, the Court of Criminal Appeal took cognisance of a prior judgment delivered on 6th January 2023, in the names of The Police vs Victor Buttigieg, where a similar argument pertinent to that Legal Notice was employed. In that case, the Court of Criminal Appeal confirmed that the Legal Notice, issued under the provisions of Article 669(2) of the Criminal Code, stipulates that the Court Registrar ‘may’ appoint the Director of Health to store dangerous medicines on his behalf. The appellant insisted that this was not done, resulting in a violation of the legal notice, and thus the exhibited drug should have been excluded from the case due to a breach in the chain of custody.
Ultimately however, the Court of Criminal Appeal identified that the precise wording of Article 669(2) of the Criminal Code, particularly the use of the word ‘may’, clearly indicated that the legislator intended to grant the Court Registrar discretion in appointing another person to store objects on his behalf. Conversely, if the legislator intended to impose a strict obligation on the Registrar to transfer certain objects to a third party – such as the Director of Health – the provision would have been mandatory rather than discretionary and so the word ‘shall’ would have been used instead of the word ‘may’.
Consequently, the Court of Appeal in The Police vs Nathan Agius followed this train of thought and rejected the appellant’s argument of appeal regarding a procedural defect in the chain of evidence which in his view resulted in a diminished integrity of his fundamental right to a fair hearing.
This judgment is final and may not be appealed further.
Dr Arthur Azzopardi is managing partner, and Alec Carter is paralegal at Azzopardi, Borg and Associates Advocates.