Lawyers for Yorgen Fenech have expressed “serious doubts” as to what prompted the police commissioner’s 11th hour appeal last week to deny them access to data from a phone used by former chief of staff Keith Schembri.
News about the appeal first emerged during an animated hearing on Thursday afternoon when the constitutional case filed by Fenech to have lead investigator superintendent Keith Arnaud kicked out from the Daphne Caruana Galizia murder case continued.
Fenech’s lawyers and the police commissioner, assisted by the State Advocate, have been at loggerheads ever since it was revealed that police had access to data extracted from a mobile phone belonging to the former OPM chief of staff.
Although not the same device that went offline shortly before Schembri was arrested late in 2019 in relation to the journalist’s murder and which Schembri later claimed to have lost, Fenech is insisting that the data currently in police hands is “essential” to his case.
On the other hand, police have argued that the phone in question is not relevant to Fenech’s case and moreover is confidential since it forms part of an ongoing magisterial inquiry.
On November 19 Mr Justice Lawrence Mintoff ruled in favour of Fenech’s request, ordering the police commissioner to produce all extracted data at the next hearing.
State Advocate Soler, in the presence of deputy police commissioner Alessandra Mamo and superintendent Frank Anthony Tabone, had informed the court that there would be no appeal and that the commissioner would abide by court orders.
That day Soler also minuted that disclosure of the phone data could prejudice ongoing investigations.
Commissioner insists data could prejudice investigations
The police commissioner is standing firm by that position, insisting in his appeal that such data is “privileged” because it forms part of an ongoing magisterial inquiry and its disclosure to third parties could “seriously prejudice” police investigations.
Soler himself had pointed out as much at the previous hearing, but his request appeared to have gone unheeded, he told the court.
“The court issued no warning and that in itself could prejudice the police commissioner’s position,” the court was, explaining that the data had been extracted from two mobile phones seized from Schembri on the night of September 21, 2020.
The magistrate handling the inquiry ordered an IT expert to pass on that data to police in mid-May for analysis.
An “absolute ban” on access to criminal records by anyone extraneous to the case was partially lifted in 1980 and the Attorney General was granted discretion to authorise access to the records of a magisterial inquiry.
But the legislator’s intention was clearly to safeguard the confidentiality of such inquiries, especially when investigations are still underway.
In this case the magistrate conducting the inquiry had never authorised such phone data to be exhibited in Fenech’s constitutional case.
The court did have power to issue any directive, but this was to be done with respect to the laws of the country embracing the rule of law, the appellants said.
Allowing access to data from Schembri’s phone was not in the national and public interest at this stage and besides, no proof was produced that the data was “truly relevant” to Fenech’s case.
That appeal was filed alongside another one on behalf of the State Advocate, but neither of the two applications were signed by the man leading that office, namely Soler.
De Gabriele signed the commissioner’s appeal, whereas Maurizio Cordina signed the appeal on behalf of the State Advocate’s office.
Breach of procedural rules, lawyers say in reply to appeal
In their reply, Fenech’s lawyers insisted that independently of any question of “loyalty and good faith” the police commissioner’s appeal was in breach of procedural rules.
Moreover, the State Advocate had in the most “clear, unequivocal and explicit manner” minuted in open court that the police commissioner was to abide by the court decree and that lengthy minute dictated on November 19 was quasi-contractual.
The appeal impinged upon the integrity of the judicial proceedings as well as respect towards the presiding judge.
Such an appeal was baffling and “in blatant contempt of the obligations” both the police commissioner and the State Advocate assumed before the first court.
Contrary to what the appellants claimed Judge Mintoff did take necessary precautions to safeguard the confidential data by imposing a ban, ordering the data to be deposited inside his court chambers and warning the parties against disclosure.
'Serious consequences for the murder investigations'
The data was “crucial” to the dispute at hand which concerned precisely the “impartiality or otherwise” of Arnaud and could spell “serious consequences” for the murder investigations, insisted Fenech’s lawyers.
“That’s why the police commissioner has no interest in disclosing it to Fenech.”
But Fenech “knows exactly what this material is,” said his lawyers, pointing out that the “law as an instrument devised to search for the truth must never be used to suppress the truth.”
There were “serious doubts” as to what had prompted the police commissioner’s appeal and that was why such appeal ought to be rejected.
The case took quite an unexpected turn on Thursday when Mr Justice Mintoff was informed by De Gabriele about the appeals during the hearing which had been reserved for the presentation of the phone data.
That announcement triggered a strong reaction by Mr Justice Mintoff who promptly suspended the hearing and ordered Soler, who was not present in court, to attend the sitting.
When Soler did make it to court a while later, the judge delivered a strongly-worded decree stating that failure to inform the court about the change of stance was lack of courtesy and a waste of the court’s time.
Such behaviour was held to be in contempt of court and the State Advocate was fined €500.
Soler apologised for turning up late and not in normal court attire. He insisted that his previous court minute had been dictated in good faith without discarding his professional obligations towards the client, in this case the police commissioner.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri signed Fenech’s reply.