A judge presiding over a double jeopardy case filed by the directors of Zenith Finance, has turned down objections by the Attorney General and police to testify, ordering them to appear at the next sitting to answer questions. 

The decision was delivered on Friday by Madam Justice Miriam Hayman in constitutional proceedings where Lorraine Falzon and Matthew Pace are claiming that their rights were breached when they were targeted by criminal action for alleged money laundering after their company had already settled a hefty administrative fine. 

The applicants’ lawyers are challenging that criminal action, especially after an inspector from the police financial crimes unit testified that Falzon and Pace had been charged in their personal capacity even though “from day one” the prosecution knew that they had made no personal illicit gains. 

Moreover, they are claiming that the company, formerly known as MFSP Financial Management Ltd, had settled a €38,750 fine slapped by the FIAU in 2018 in connection with administrative shortcomings “identical” to the facts triggering criminal charges in their regard. 

Since charges were issued in the name of the ‘Republic of Malta’ and since it was the AG’s prerogative to decide how charges were to be issued, the lawyers summoned the AG to explain whether she had been consulted about the charges.

They also wanted to know if she had been aware of the FIAU fine and whether she had issued instructions for the directors to be prosecuted in their personal capacity. 

The two inspectors involved in the money laundering investigations were also summoned to testify and to present their report recommending criminal action against Falzon and Pace. 

Those summonses had sparked a flurry of objections. 

Among those objections, the AG invoked professional privilege, whereas the police questioned the relevance of the requested evidence and argued that the documents were privileged. 

In its decree on Friday, the court delved into the history and functions of the AG, formerly known as the Crown Advocate.

Since 1936, the AG acted as a public prosecutor and state advocate. 

But after a somewhat “tumultuous” path, marked by political discussions and consequences triggered by events which left a “not negligible” impact on both a domestic and international level, those dual roles were again separated.

That change, designed to ensure a better application of the rule of law, came about in December 2019.

Nowadays, the AG acts as chief public prosecutor and that function is regulated strictly by law so as to safeguard the constitutional independence of this office. 

The court did not agree with the AG’s objection based on the notion of professional privilege.

Such privilege belonged to the client, not the lawyer, and was meant to safeguard the rights and defence of the client. 

Thus the unavoidable question: who was the AG’s client in this case? 

Prior to 2019, the answer would have been the ‘government'. But nowadays, the AG is answerable to no one in the exercise of her discretion, except within the limits laid down by law, and thus there was no privilege to invoke. 

As for objecting on the basis of professional secrecy, the court stated that the Professional Secrecy Act permitted disclosure where this was reasonably necessary “to prevent a miscarriage of justice.”

A balance had to be struck between the AG’s discretion and the applicants’ right to a fair hearing.

Ensuring that they did not suffer double jeopardy fell within the parameters of “preventing a miscarriage of justice,” observed the judge. 

The only question which could have a bearing on the case was whether the facts leading to the administrative penalty were the same as those resulting in the criminal charges. 

As for the two inspectors, in light of the principle of equality of arms, there was to be no obstacle to the production of evidence, as long as it was relevant.

In this case, the applicants were claiming a breach of rights through double punishment for the same offence and therefore they were not to be deprived of the best evidence.

In light of such considerations, both the police officers as well as the AG were to attend the next sitting to answer any relevant questions, the Court decreed. 

Lawyers Edward Gatt and Mark Vassallo are assisting the applicants.