Updated 9.45am

State Advocate Chris Soler has made it clear that he did not sign an appeal seeking to deny Yorgen Fenech access to Keith Schembri’s phone data. 

Soler was found in contempt of court by Mr Justice Lawrence Mintoff last week, who said the State Advocate had lacked the “courtesy” of informing him about the appeal, filed on behalf of the police commissioner. 

At a previous hearing, the State Advocate had told the court that there would be no appeal and had further minuted that the police commissioner would abide by the court ruling, which ordered the police to hand Fenech data from Schembri’s phone. 

Soler did, however, minute that disclosure of said phone data could prejudice ongoing police investigations. That minute was dictated in the presence of deputy police commissioner Alexandra Mamo and superintendent Frank Anthony Tabone.

But on December 16, another lawyer from Soler’s office informed the judge that the police commissioner had had a change of heart and would be appealing the decision.

Upon hearing that, Mr Justice Mintoff suspended the sitting, ordered Soler to attend the hearing in person and then fined him €500 for contempt when he showed up, brushing aside his attempts to explain his position and threatening to double the fine if he interrupted further. 

Soler has now filed an appeal against that contempt decision, saying it is “very unfair” and was dished out in the heat of the moment, without allowing him the chance to explain his position.

In his appeal, Soler made it clear that he had neither drafted nor signed the appeal. He could therefore not informed the judge about it, he argued. 

Fenech's lawyers were also court officials and they too had not informed Judge Mintoff about the appeal, which they had known about some two weeks before.

Yet unlike Soler, none of them were fined for contempt. 

‘An unwarranted criminal penalty’

Soler argued that it was “unheard of” for a lawyer to be found guilty of contempt for having executed a client’s wishes when they changed their mind about an appeal. 

He argued that, as State Advocate, he was representing a client [the police commissioner] and that the first court had not allowed him the chance to clarify this point. 

The State Advocate argued that the €500 fine he received violated the constitutional tenet that there could be no punishment without a law (Nulla poena sine lege). 

If the judge felt that the State Advocate’s behaviour merited sanctioning, he ought to have referred the matter to the Court Registrar, he argued. The court could not just declare him guilty and slap him with a fine without allowing him to defend himself. 

Soler added that he was not present for Thursday’s session because he had other pressing matters to attend to, and the police commissioner was represented at the sitting by other lawyers from his office. 

He said he felt “very hurt” by the judge’s remark that he had wasted the court’s time, as he had never showed any lack of respect towards the court or judge and always turned up punctually, never requesting a postponement. 

Soler said that he had been so "ultra careful" to be ethically correct that to remain consistent with what he minuted on November 19, he did not sign the police commissioner's appeal.

It was indeed a pity that he was not given the chance to clarify this “cardinal point” by Judge Mintoff who consequently barged ahead on a wrong assumption, said Soler, apologizing for any disruption to the court’s diary and requesting the court of appeal to quash the first court’s decision and consequent fine.

The appeal application was signed by the State Advocate himself.