A person’s right to a lawyer during interrogation is about protecting them from self-incrimination and preparing their defence strategy and has nothing to do with whether they are vulnerable or not, a court has ruled.

The important pronouncement, made by Madam Justice Consuelo Scerri Herrera in a court of appeal judgement, adds legal weight to the importance of ensuring a criminal suspect has access to a lawyer before they are arraigned.

While the right to have a lawyer present was introduced into law some years back following a series of landmark judgments, that right is sometimes applied differently.

A series of judgements have ruled that statements given without a lawyer present are inadmissible. Others, on the other hand, have concluded that such statements are not automatically excluded and that it is the court’s job to assess the overall fairness of proceedings.

In her judgment, Judge Consuelo Herrera carried out a detailed study of existing caselaw and concluded there was still no “legal certainty” on the issue, with conflicting judgments issued to this day.

But the judge said she the court did not agree with decisions opting for an ‘overall fairness’ test.

The case concerned an appeal filed by the Attorney General after Trevor Borg was acquitted of being part of a cannabis, cocaine and heroin trafficking ring, breaching bail conditions as well as relapsing.

It all began in September 2014, when Borg met Brian Godfrey Bartolo outside a St Paul’s Bay supermarket.

Just as Borg handed over €650 in cash to Bartolo and turned to leave, a voice called out, “Brian don’t move!”

It was the police. Soon, officers zeroed in on the two suspects who were both taken into custody.

Police found 106 grams of cannabis grass, 4.89 grams of cocaine and 0.47 grams of heroin in Bartolo’s car.

Bartolo reacted angrily to the arrest, hurling insults at Borg for having “framed him” by playing a role in a police-controlled delivery. Borg denied anything to do with the police operation.

Eventually, the police pressed criminal charges against both men separately.

In April 2023, Borg was acquitted by the Magistrates’ Court, prompting the AG’s appeal.

The prosecutor argued that the first court had made a mistake in ruling that statements given by Borg (without legal assistance) and Bartolo (while he was facing his own criminal charges) were inadmissible.

But a court of appeal disagreed.

The right of legal assistance does not depend on whether the suspect is vulnerable or not, nor whether the police interrogating him exerted undue pressure, it said.

Police are always expected to follow the law, but having a lawyer present at the pre-arraignment stage is “instrumental in effectively safeguarding the [suspect’s] right to silence and protecting against self-incrimination.”

The court noted that a suspect’s right to silence is not “interchangeable” with their right to legal assistance, which is also essential in defining the strategy to be adopted by the defence.

At the time when Borg was interrogated, the law allowed a suspect to consult a lawyer for up to one hour prior to releasing his statement.

Borg had refused that right of consultation.

But the court of appeal concluded that did not automatically mean that he would have refused a lawyer during interrogation.

The court also threw out the AG’s argument about the admissibility of Bartolo’s statement and testimony, which appeared to incriminate Borg.

Bartolo had chosen to testify against Borg when his own case was still not decided, and hence that testimony was not admissible.

As for the assessment of evidence concerning the alleged conspiracy, the judge also agreed with the conclusion of the first court.

Borg had insisted that on the day of the police sting, he was actually meeting Bartolo to settle a longstanding debt.

He claimed that he had broken into Bartolo's garage five years prior to retrieve tools he claimed were his, and had subsequently agreed to pay Bartolo back the money he owed him in exchange for Bartolo dropping a criminal complaint against him.

The judge, like the first court, did not believe that explanation, but given certain discrepancies in the testimonies given by police officers involved in the arrests, concluded that the prosecution had failed to prove its case beyond reasonable doubt.

The court also noted the testimony of a probation officer who was monitoring Borg.

Random tests carried out on him showed that there was no drug problem.

Since that incident nine years ago, Borg had found a good job, was a father of two and was totally focused on his family, the probation officer informed the court.

When all was considered the court rejected the AG’s appeal and confirmed the acquittal.

Lawyer David Gatt was defence counsel.