Going to court is mostly brutal and traumatic. I am witness to this every single day, both as a lawyer and as an ordinary citizen who, incidentally, was once the victim of a traumatic crime. I see the effect on clients, friends and family, who, 10 years down the line and several tens of thousands later, are still in limbo, fighting for justice, trying to recover what is rightfully theirs, along with some form of closure. 

Court is soul-crushing and, potentially, career- and life-destroying. I know good people who have been financially ruined and have lost everything in the process. So, forgive me if I sound callous when I say that the justice system was never really equipped or designed to treat trauma or to repair those who are broken. Quite the opposite.

Once you go to court, the only certainty is uncertainty and delay, in addition to being made to relive the ordeal, which is sometimes even more distressing than what brought you there in the first place. Which also explains why many people simply don’t bother.

And speaking of trauma, it is neither case nor victim specific. It applies across the board – whether you’re in the throes of a bitter separation case, a libel suit, or are suing someone over a seemingly innocuous money claim. Naturally, when it comes to the criminal justice system involving murder, domestic violence, robberies and rape cases, trauma applies even more forcefully.

For the last month now, ever since the Criminal Court acquitted a former police officer of raping a female colleague, there has been an onslaught of criticism directed at both the verdict and the trial judge. Every victim group, foundation, association and movement has weighed in.

The constant criticism from people who, in all likelihood, were never present at the trial and may not even have bothered to read the lengthy judgment, is not just irresponsible but something beginning to resemble a disconcerting attack on the entire judiciary, or at any rate an unacceptable level of judicial intimidation.

While appreciating that everyone is entitled not only to an opinion but also to its free expression, I do feel like weighing in when that opinion undermines the rule of law. For the record, I wasn’t at the trial either and have only read certain salient parts of the judgment, so I will not be commenting on the nitty gritty of the case.

But I will state the obvious. The right to a fair trial is fundamental both to the rule of law and to democracy. It belongs to everyone – all offenders – even those we don’t like, who have allegedly committed the most egregious of crimes. We can’t cherry-pick and lemon drop. The minute we make an exception to a human right or to a fair hearing, they cease to be both.

Judges are not there to please the public or give satisfaction to traumatised victims at the expense of due process. Nor are they there to appease the media or those armchair fundamentalists who seem to think that certain people shouldn’t enjoy the privilege of judicial protection. Because that is exactly what appears to be going on here. 

The most dangerous mistake a judge can make is to anticipate public opinion and then tailor a judgment to fend off criticism- Michela Spiteri

I have said this before, and I’ll say it again. Police and prosecutorial errors are rife in every criminal justice system and probably account for some 50 per cent (or more) of acquittals. So, statements like “it is a perversion of justice to absolve an alleged rapist on the basis of a technicality” are actually more dangerous than any potentially erroneous acquittal.

I read most of what was reported after the verdict and got the impression that certain people seem to think that anyone on trial for rape should be subjected to different rules of evidence and different constitutional safeguards. Perhaps what such people are really seeking is doing away with criminal trials altogether, on the premise that rape victims should be believed, no questions asked, because they have been through enough trauma. 

Look, I get it. I know how awful it is to be a victim of crime: to be savagely cross-examined and made to feel like the guilty party. This is of course not unique to Malta. Rape victims everywhere feel systematically failed and cheated. 

But discrimination when it comes to legal principles is a slippery slope and a dangerous pastime. If a statement is constitutionally inadmissible, it has to be discarded. Which means that you are invariably left with are two conflicting versions.

The legitimacy of the criminal justice system is based on the fundamental legal premise that the accused is presumed innocent. This is in stark contrast to public expectation that those charged with criminal offences, particularly reprehensible crimes, should be automatically found guilty. Another point worth remembering is that the system does not deal only with those who are guilty.

In a non-jury trial, the presiding judge is tasked not only with applying the law but also with establishing the facts. A case will ultimately hinge on reliability, credibility and corroboration. Doubts must be addressed and pointed questions asked, even at the cost of making a victim uncomfortable.

If things don’t add up and there are persistent and lingering doubts in the judge’s mind, the court is bound to acquit, even if the public is baying for a conviction. Judges should always err on the side of caution, especially when the alternative is sending someone to prison for a decade. 

The job of judges is to uphold the law conscientiously and independently without favour or fear of any backlash. Are judges infallible? Of course not. The entire system of appeal is based on judges’ awareness of their own fallibility.

But the most dangerous mistake a judge can make is to anticipate public opinion and then tailor a judgment to fend off criticism, while ignoring the evidence or lack of it. That certainly was not the case with the Msida rape judgment.