A judge has warned a UK-based forensic accountant who is refusing to testify in Malta that he was appointed as a court expert under Maltese law and could be summoned to testify under the same law.

Madam Justice Edwina Grima ordered the expert, Jeremy Harbinson, from Northern Ireland, to submit an original copy of an affidavit which he has, so far, sent to the courts via email. 

Once the original copy is submitted, the authenticated affidavit could become part of the court documents under a legal provision that allows for the inclusion of affidavits filed by people residing overseas. 

If the defence lawyers – who reserved the right not to accept the admissibility of the affidavit as evidence – have any questions under cross-examination, this can be done via letters of request.

Harbinson is one of the experts behind a 1,200-page report into corruption in former prime minister Joseph Muscat's government deal to privatise three hospitals. 

On Tuesday Times of Malta reported that in the affidavit, Harbinson said the experiences and insights he gained over the past seven years “means that I fear for my safety, and I have decided that I will never return to Malta".

Harbinson, who has since retired, claimed the report iwas never meant to be used directly as a basis for prosecutions.

“Our report made no mention of criminal charges or freezing orders, and I had no input into these,” Harbinson said.

Harbinson said a disclaimer on the report made it clear that it was only meant to be used by the inquiring magistrate and not shared with third parties without prior permission.

He added: “the report to the inquiry was of the highest quality and I stand over the findings and opinions set out in it”.

The inquiry, which Justice Minister Jonathan Attard claimed cost over €10 million, was used by the Attorney General and police as the sole basis for prosecuting ex-prime minister Joseph Muscat, his former minister Konrad Mizzi and former chief of staff Keith Schembri for their alleged involvement in the fraudulent hospitals' concession. 

Joseph Muscat arrives at a sitting of the criminal case against him. Photo: Matthew Mirabelli

They are facing criminal charges together with 11 other individuals and eight companies that stand accused of money laundering and other major crimes.

Following their arraignment, the prosecution issued millions worth of freezing orders as part of the proceedings.

The accused have been contesting the law that regulates the amounts to be frozen and are arguing that the amounts were too draconian.

As part of their arguments in the case, presided by Madam Justice Grima in the Criminal Court, the defence has been requesting Harbinson to testify but he is refusing to come to Malta.

On Wednesday the judge said the court took note of the correspondence it received through the deputy registrar from UK lawyers who declared that they represented Harbinson, as well as the affidavit sent to the deputy registrar and lawyers representing this expert.

The affidavit is not the original but a copy of the original. The court ordered Harbinson to submit the original affidavit in the acts of the proceedings.

“The local proceedings are regulated by Maltese law and not UK law and, therefore, as an expert appointed by the Maltese courts, or by the inquiring magistrate in Malta, he must abide by what is laid down in the Maltese law,” the judge said.

She drew his attention to the fact that the report compiled by him and other experts formed part of the evidence and therefore, according to Maltese law, he can be called to testify to confirm his report and to submit himself to cross-examination by the defence.

By law – not only Maltese but also the EU and international law – it is the right of the accused to control the witnesses put forward by the prosecution. 

The judge also drew his attention to the fact that, as already made clear to him in correspondence that took place between the deputy registrar and his lawyers, all official court notifications delivered could not be sent to his lawyers but had to be delivered directly to him according to Maltese law.