Tuesday’s marathon court session into the Vitals case ended with a twist in the tale when the magistrate ordered defendants to steer clear of publicly discussing the case.

“The case is tried in court and court alone, not through the media. So the parties and their lawyers are banned from handing any of the data to third parties or making any public comments about any testimonies or evidence in the proceedings,” Magistrate Rachel Montebello decreed.

The gagging order has been the source of some confusion, with some interpreting it to mean that all talk of the issue is off-limits while others say that defendants are still free to express themselves as long as they exercise caution.

To speak or not to speak?

Emerging from court, former prime minister Joseph Muscat briefly paused to tell journalists gathered that he couldn’t hold a press conference he had been planning after he had been hit by a gagging order, which meant that he can’t speak publicly about the case.

“If I were to answer your questions, I would be directly violating the court’s orders,” he said.

Justice Minister Jonathan Attard was unimpressed by the court’s decision, describing the prosecution’s request for a gagging order on defendants as “disproportionate” in a case “characterised by strategic leaks”.

Unsurprisingly, former Repubblika president Robert Aquilina sees things differently. “It’s not true that there is a general prohibition,” he told Times of Malta yesterday. “The court order is for things that should take place in court to take place in court, not outside”.

Times of Malta spoke to several criminal lawyers not involved in the case to understand their interpretation of the magistrate’s instructions. All lawyers said that they were basing their interpretation on media reports of the decree, not having read a transcript of the magistrate’s words.

Is this really a gagging order?

“It’s not a gagging order in the sense that there is no clear legal provision in Malta for gagging orders – this is a term adopted from other jurisdictions,” one lawyer said.

Gagging orders are usually directed at the media, prohibiting the publication of details about a case, whenever the court feels that this could hinder the proper administration of justice, with article 517 of Malta’s criminal code explaining this procedure.

But, they said, it is, ultimately, up to the magistrate presiding over the case to ensure that the case is heard in tranquillity, so she has a free hand to impose whatever measures are needed for this to happen, including instructing defendants to keep mum about the subject.

“The order appears to be limited to what happens in court,” another lawyer argued, suggesting that, while defendants can speak about the case in “generic terms”, they can’t actually refer to any activity that takes place in court.

What this means in practice, the lawyer said, is that, although defendants can continue to publicly proclaim their innocence, they can’t refer to any testimony, evidence or statements made in court when doing so.

“Defendants can say ‘I don’t understand how the freezing order was calculated’ but they can’t add ‘the prosecution’s testimony hasn’t justified the freezing order’,” the lawyer said, by way of explanation.

Other lawyers broadly agree that, while the order isn’t a blanket ban on talk of the case, it limits defendants’ ability to rebut claims publicly.

“I don’t think the magistrate has the power to stop someone from speaking about the case in political terms,” one lawyer said, “but it’s clear that they need to measure their words carefully.”

Ultimately, a lawyer said, the magistrate’s instructions need to be interpreted with a good dose of “common sense”.

Is this kind of decree common?

Not at all, the lawyers who spoke to Times of Malta agreed. But it’s also not completely unheard of.

One lawyer described it as “quite rare” for a court to take this step. “But it is also quite rare for a court to be faced with such a high-profile case,” they added.

The nature of the case, and the persons involved, certainly adds an almost unprecedented layer of complexity, lawyers agreed.

One lawyer pointed to another high-profile court case in Malta’s recent political history, that of former chief justice Noel Arrigo and Judge Patrick Vella, who stood accused of bribery. The case was tainted after the courts had found that the words of then-prime minister Eddie Fenech Adami had breached their right to a fair trial and presumption of innocence.

“The magistrate is trying to avoid a situation where proceedings are taken over by the public pronouncements that might prejudice the case.”

Equality of arms?

Several lawyers questioned what effect this might have on the broader debate surrounding the case.

“It’s clear that this brings about a situation where defendants cannot rebut allegations in public, even if those same allegations are also made publicly,” one lawyer said.

But defendants aren’t totally helpless. “If an outside party makes a false accusation or allegation, the accused can still file judicial proceedings and hold them responsible for damages,” another lawyer argued.

In short, defendants can take legal action to defend themselves but might have to bite their tongue when it comes to doing so publicly, or risk reprimand. Whether this has an impact on the public perception is anyone’s guess, lawyers say.

“Cases shouldn’t be judged on sympathy or perception,” one lawyer said. “But there’s no denying that public discourse can influence a jury and swing their perception one way or another, especially in a system where jurors are members of the public.”