Criminal proceedings against Vincent Muscat over his alleged involvement in the attempted 2010 HSBC armed robbery, have been ‘stayed’, pending a constitutional decision about his request for a judge's recusal.
The decree was delivered by Madam Justice Edwina Grima who granted Muscat, known as il-Koħħu, the “extraordinary” remedy in light of the “exceptional and unique circumstances” of the case.
The court declared that it would be wise to “stop and wait for the constitutional pronouncement” to ensure there would not be “any shadow of doubt that the accused would not get a fair hearing at the trial”.
Muscat is challenging the constitutional validity of the laws on recusal, arguing that the fact that the current legal scenario does not allow for any right of appeal against a refusal by a sitting judge or magistrate to abstain from hearing a case, in itself also breached his fundamental rights.
Muscat was set to face trial over the failed 2010 heist alongside then co-accused Darren Debono, known as it-Topo.
However, a last-minute admission of guilt by Debono on the eve of the trial by jury, triggered a whole chain of events.
Debono's admission, following a plea deal with the Attorney General, resulted in a 10-and-a-half-year term of imprisonment and a fine of €18,000.
Moreover, Debono’s role changed overnight from co-accused to prime witness for the prosecution who immediately requested his name to be added to the list of witnesses in the trial against Muscat.
That move sparked strong objections by Muscat’s lawyers and sparked a series of legal repercussions.
Muscat's defence filed separate proceedings before the First Hall, Civil Court, claiming the decision to allow Debono to testify against the accused breached his rights.
They claimed the judge presiding over the criminal case had “misinterpreted and misquoted” their arguments concerning Debono's reluctance to tell the whole truth and why he could not be considered as a competent witness.
Meanwhile, they also filed a request for recusal before the judge presiding over the criminal proceedings.
While that request was still pending, Muscat’s lawyers requested the constitutional court to allow them to add a further claim which had not featured in their original application.
That claim concerned specifically the current laws on recusal.
The relative provisions of the Code of Organization and Civil Procedure do not provide for a right of appeal against a recusal decision and that, in itself, also breached the applicant’s fundamental rights.
Under Maltese law, a request for recusal is decided by the judge or magistrate against whom it is directed and that decision cannot be appealed.
Now Muscat’s lawyers are arguing the state of affairs intrinsically runs counter to the basic legal principle that no one should be a judge in his own case.
Madam Justice Doreen Clarke, who is presiding over Muscat’s breach of rights case, is to decide whether that claim is to be added.
Upholding the request would place current legal provisions on recusal under scrutiny.
In her decree, Madam Justice Edwina Grima observed that the staying of proceedings is an “extraordinary” remedy which must be applied in a restricted manner since it intrinsically stultifies the judicial process and the delivery of justice within a reasonable time.
In this case, Muscat claimed he would not get a fair hearing if the trial were presided by the sitting judge and was therefore seeking the judge’s recusal.
His lawyers were also arguing that that recusal request should not be decided by the sitting judge and were challenging the constitutional validity of the law in that respect.
Given these “exceptional and unique circumstances” it would be wise for the court to “stop and wait for the constitutional pronouncement” to eliminate “any shadow of doubt that the accused would not get a fair hearing at the trial.”
Lawyers Franco Debono and Roberto Montalto are assisting Muscat.