A judge has condemned a “new practice” by certain lawyers who, on the pretext of protecting an accused person’s rights, drag out proceedings for “years or decades,” doing a disservice to justice and the rule of law.

Mr Justice Francesco Depasquale reserved strong comments for lawyers who were adopting the “new practice” of dreaming up every kind of mechanism to do their best to hamper the course of justice.

By resorting to such tactics seemingly to benefit the interests of the accused, these lawyers actually cast their client into a legal limbo of criminal and constitutional proceedings for years on end, the judge said.

Once criminal proceedings were concluded, these same lawyers embarked on further legal action, claiming that the accused’s fundamental rights were breached through the delay when the legal counsels themselves were primarily to blame for such delay, observed Mr Justice Depasquale.

The observations were made during judgment in constitutional proceedings filed by Charles Seychell who was criminally charged fourteen years ago over a drug parcel discovered inside a container shipped by a freight forwarding company.

Police had found the parcel, containing some 900 grams of heroin, wrapped in black tape and tucked away inside an air conditioning unit in the container.

Upon arrest, Seychell was offered the chance of consulting a lawyer.

At the time, Maltese law did not grant a suspect the right to be assisted by a lawyer during interrogation.

After being duly cautioned by the interrogating officer, Seychell turned down the right to seek legal advice and proceeded to release a detailed statement which he signed and confirmed on oath.

Two days later Seychell was arraigned and charged with alleged involvement in a drug trafficking conspiracy to smuggle the drug into Malta. He pleaded not guilty.

That was June 2010.

The compilation of evidence was wrapped up in December 2013 when the Attorney General issued the bill of indictment.

In pre-trial pleadings, the accused’s request for his statement to be declared inadmissible because it was released without legal assistance, was turned down. That decision was confirmed on appeal.

The accused twice requested a constitutional reference. The first attempt was turned down in 2014. The second was withdrawn by the accused.

Seychell’s trial was set for November 2022, but days before its start Seychell filed constitutional proceedings which were concluded this week.

His claims were threefold.

Seychell’s lawyers claimed that his fundamental right to a fair hearing was breached because he lacked legal assistance when releasing his statement 14 years ago, there was a lack of legal certainty on this matter and also because he was not given full disclosure by the prosecution.

The court observed that for the past eleven years, the applicant’s lawyers had filed “an infinite succession” of actions to delay his trial.

In fact, that criminal process was currently put off ‘sine die’ (indefinitely) pending the outcome of these constitutional proceedings.

Citing extensive jurisprudence on the subject, Mr Justice Depasquale threw out the applicant’s claims.

The court reproduced extracts of a judgment delivered in Romario Barbara vs AG last July, which dealt with very similar claims “in the hope that the message would be grasped by those it was meant for.”

Simply because the suspect waived his right to legal assistance, he could not subsequently assume that he would not get a fair trial, the judge said.

The accused was still presumed innocent, the prosecution still had to prove its case and the accused had a right to defend himself.

Moreover, the court observed that at the time of arrest, Seychell was 31 years old, and thus surely able and willing to make a free decision when refusing legal assistance and going ahead with the statement.

He released that statement under no kind of threat or fear whatsoever, observed the court.

Contrary to what his lawyers claimed, case law on the subject was nowadays “clear” and there was no room for legal uncertainty “dreamt up” by the lawyers in the hope of “buying time” for their client.

In fact, since they appeared to be well aware of this, the lawyers had come up with a further ground on which to base their breach of rights claims, namely that the applicant was not given full disclosure, went on the judge.

However, as rightly pointed out by the State Advocate, the applicant’s lawyers did not specify which documents or information the prosecution had not disclosed.

Their attitude was “clearly nothing but a fishing expedition intended to enable [the applicant] to cling on to a case that was unfounded,” said the judge.

The prosecution had actually disclosed all evidence throughout the compilation of evidence and the trial was repeatedly put off because of the accused’s breach of rights allegations.

Such an argument stemmed from “his fertile imagination and that of his lawyers,” remarked the court, pronouncing itself “convinced” that these constitutional proceedings were intended solely to unduly prolong criminal justice.

And to make sure that Seychell and his lawyers would not devise some ulterior excuse to appeal this decision, Mr Justice Depasquale declared that their claims were “simply frivolous.”

This pronouncement was made in terms of article 46(5) of the Constitution which states that “no appeal shall lie from any determination under this article that any application or the raising of any question is merely frivolous or vexatious.”

Further delays would hinder the rule of law which does not only call for due legal protection of the accused, but also that the accused respected the judicial process rather than do his best to stultify the proceedings with such frivolous claims, as in Seychell’s case.

The lawyers were not named in the judgement.