While the country was giving its full attention to the divorce referendum issue, many missed the importance of appeal court decisions on citizens’ right to have access to a lawyer during police interrogations.
These cases involve three people accused of drug related offences with the case for the prosecution resting mostly on statements given to the police by the accused. Although these decisions were described as ‘landmark rulings’ by The Times (April 23) it seems the man-in-the-street has not appreciated their importance.
In short, the highest court of the land has declared that the fundamental human right to a fair hearing is breached when an arrested person is denied access to a lawyer.
Our law did not allow for such access but was then amended in 2002, only to be left waiting until 2010 for the ministerial nod to put it into force.
During this interval, practically no one said anything except for the lone voice of Nationalist MP Franco Debono, who not only repeatedly spoke on the issue, pointing out its importance from a human rights angle, but also asserted that an administration that took so long to put into force a provision enacted unanimously by Parliament seemed to have no regard for the dignity of Parliament.
Reporting on the constitutional judgments announced in April, The Times forecast that these could have “a ripple effect on several pending cases”. This has now been confirmed.
Last Wednesday, The Times reported that “a number of criminal cases have ground to a halt, with more major disruptions expected following the landmark judgments ruling that not having access to a lawyer during police investigations was a breach of human rights”.
Two trials by jury have, in fact, already been postponed.
A large part of pending criminal cases depends on statements given to police during interrogation in a way that has now been declared as breaching a basic human right of the accused.
The country now risks the annulment of a large number of criminal prosecutions that developed during those eight long years when the ministers responsible for Justice were being advised to delay putting the law into force.
This might well prove to be the most ill-advised recommendation in the history of Maltese criminal justice.
Many are of the opinion that the current law is not enough to safeguard the observance of the human rights of a citizen under interrogation. The law provides for the person concerned to have access to a lawyer but the lawyer does not have a right for access to police files, much less of being present during the interrogation itself. In Malta such procedures are the stuff of television drama and not of real life.
As a result of these shortcomings, the lawyers are put in the awkward position of having to advise clients without knowing the sort of evidence or indications on which police are basing their suspicions, and this advice has to be based solely on guesswork.
Many feel that the law needs to be amended again to provide for these shortcomings but the government seems reluctant to go this far. The suspicion that many criminal cases depend on statements made by the accused to police is not spurious.
Rather than depending on such methods, a serious Police Force should try to be more proficient in forensic methods. Investment in forensic tools and facilities is paramount.
However, one gets the impression that the police are content to go the easy ‘interrogation way’ despite its pitfalls, while the administration is happy not to have to fork out the funds necessary for the forensic facilities that the police obviously lack.
This state of affairs can only lead to more prosecution failures.
It is high time that the administration looks at the whole criminal investigative set-up in our country, rather than amending bits and pieces, to avoid the type of problems that have resulted from the eight-year unjustified delay in putting into force the amendment that gave arrested suspects a limited form of access to a lawyer.
One aspect of this set-up is the dual role of magistrates in our system: that of conducting inquiries and passing sentence in criminal cases. Sometimes these two roles overlap dangerously, such as when a magistrate inquiring a crime in which a particular person is the prime suspect is asked to judge the same person in a separate case.
Many are of the opinion that magistrates should not have this dual role and that inquiring magistrates should be exclusively responsible for inquiries.
This dual role of magistrates is also leading to delay in the finalisation of magisterial inquiries as magistrates find themselves hard pressed for time having to postpone the finalisation of their inquiry findings because of their daily duties in the courts.
Perhaps some kind of independent body should be set up to look at the whole investigative set-up holistically and advise the current administration on necessary changes that would benefit the state’s fight against criminality while genuinely respecting basic human rights.
micfal@maltanet.net