A person's right to a lawyer before being questioned is about protection from incriminating oneself and preparing a defence. Hence, it is of extreme importance that every suspect, before being questioned by the police, is duly cautioned in terms of sections 355AU and 355AUA of the Criminal Code, Chapter 9 of the Laws of Malta. If the police fail to adequately administer the caution, any statement the suspect may give to the police would be considered inadmissible by the courts.

In a case decided by the Court of Appeal on October 30, 2023 in the names Police v Hilary Clare Pinfold, the court overturned a judgement delivered by the Court of Magistrates (Gozo) as a Court of Criminal Judicature and acquitted the accused from the charge of drink driving.

The appellant had been found guilty by the First Court which fined her €2,500 and disqualified her driving licence for six months.

The accused had been stopped by the police on suspicion that she was driving under the influence of alcohol. The police established the identity of the suspect and then informed her that she was going to be administered the breathalyser test. She was also informed about her rights to speak to a lawyer prior to doing so.

But from the acts of the case, it resulted to the Court of Appeal that the police failed to administer to the appellant the rights emanating from the Criminal Code, namely those listed in section 355AU which provides the following:

“(1) The suspect or the accused person shall have the right of access to a lawyer in such time and in such a manner so as to allow him to exercise his rights of defence practically and effectively.

(2) The suspect or the accused person shall have access to a lawyer without undue delay. In any event, the suspect or the accused person shall have access to a lawyer from whichever of the following points in time is the earliest:

(a) before they are questioned by the Executive Police or by another law enforcement or judicial authority in respect of the commission of a criminal offence;

(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with sub-article(8)(e);

(c) without undue delay after deprivation of liberty…

(3) A request for legal assistance shall be recorded in the custody record together with the time when it was made unless the request is made at a time when the person who makes it is at court after being charged with an offence in which case the request need not be so recorded.”

The Court of Appeal in this case concluded that it was evident that the police never explained to the accused her right to be duly assisted prior to her questioning and also throughout the investigation. She was only told about her right to speak to a lawyer.

The court further emphasised that the law explains that the right of legal assistance should be in a way as explained in section 355AUA, subsection (8)(a) of the Criminal Code, Chapter 9 of the Laws of Malta namely:

“(8) The right of access to a lawyer shall entail inter alia the following: (a) the suspect or the accused person (therefore this right has to be given to suspects in pretrial proceedings too), if he has elected to exercise his right to legal assistance, and his lawyer, shall be informed of the alleged offence about which the suspect or the accused person is to be questioned. Such information shall be provided to the suspect or the accused person prior to the commencement of questioning, which time shall not be less than one hour before questioning starts;”

From the acts of the case in question, it appeared to the Court of Appeal that the police never explained to the accused which offence she was being questioned for. The fact that the appellant was asked to take a breathalyser test did not mean that it was obvious that she was being questioned solely for the offence related to drink driving.

The Court of Appeal further stated that Section 355AUA, subsection (8)(b) and (c) of the Criminal Code, Chapter 9 of the Laws of Malta also provide that:

“(b) the suspect or the accused person shall have the right to meet in private and communicate with the lawyer representing him, including prior to questioning by the police or by another law enforcement or judicial authority;”

“(c) the suspect or the accused person shall have the right or his lawyer to be present and participate effectively when questioned. Such participation may be regulated in accordance with procedures which the Minister responsible for Justice may by regulations establish, provided that such procedures shall not prejudice the effective exercise and essence of the right concerned.”

From the evidence produced, it did not result that the police informed the accused that she had the right to speak to the lawyer in private or that she had the right to be assisted by a lawyer throughout the investigation including when the breathalyser test was administered.

The Court of Appeal further added that when the accused allegedly refused to be assisted by a lawyer, they should have abided with the provisions of subsection 6 of Section 355AUA and should have recorded the refusal in writing in the presence of two witnesses to be considered as legally valid.

Therefore, the court after having carefully examined the manner how the legal rights were administered to the accused, concluded that such rights were wrongly exercised and hence any statements or tests carried out could not be considered as admissible, leaving it with no other options but to acquit the accused.

Dr Frank Anthony Tabone is an associate at Azzopardi Borg and Associates.