Legislators should seriously consider updating rules regarding the secrecy and confidentiality of court proceedings, a magistrate declared when throwing out a contempt of court claim against Malta Today.

Magistrate Victor George Axiak made that observation in two separate but parallel judgments concerning articles published by the news outlet based on snippets of voice recordings exhibited in evidence during the compilation of evidence against Yorgen Fenech, who stands accused of complicity in the murder of Daphne Caruana Galizia.

A number of those recordings, made by self-confessed murder middleman Melvin Theuma, were played behind closed doors in court. The court had also banned copies of documents forming part of the records of the case from being published or shared with third parties that are not involved in the case. 

Yet, between August and October 2020, Malta Today published a series of four stories which included snippets from those recordings hit by the court ban.

Shortly afterwards, the court registrar filed proceedings against Saviour Balzan and Matthew Vella as Malta Today executive director and executive editor respectively, for breaching that court order which amounted to contempt of court.

Both Balzan and Vella denied that they had based their stories on transcripts forming part of court records, insisting that their source consisted of recorded police interrogations where those voice recordings had been played out.

The defendants also pleaded that they were not parties to the murder compilation and were never served notice of the bans issued by the presiding magistrate on three dates in January, February and July 2020.

Consequently, they were not bound by those orders and could never be deemed to have breached them, much less so to have acted in contempt.

Three provisions on secrecy, confidentiality

But the court, presided over by magistrate Axiak, said that the defendants were wrong in arguing that there was no legal provision banning third parties from publishing documents forming part of court proceedings, even though in this case they were right in saying that they were not bound by the ban.

When delivering judgment, the court focused on three provisions of the Criminal Code which dealt with the notion of secrecy and confidentiality of court proceedings, one of which had not been updated “for over 50 years”.

That provision, namely article 517, allows a court to ban the publication of reports about any particular offence or person accused.

Such an order must be signed by the court registrar and be affixed to the door of the courtroom where the proceedings are taking place. 

This sort of ban applies to everyone, not just court officials involved in proceedings, and can be issued by any criminal court, the court noted, unlike the ban envisaged under article 409.  

In terms of article 409, the court could order proceedings to take place behind closed doors where this was deemed to serve the interests of justice.

Likewise, in terms of article 531, proceedings may be held behind closed doors when minors are involved and the court deems it best to avoid offending public morals or decency.

In this case, the magistrate presiding over the Fenech compilation of evidence had ordered parts of the proceedings to take place behind closed doors in the interests of justice, not because any minors were involved. 

However, when issuing the ban, the court made reference to article 409 which only applied to court officials, including lawyers, who were party to the proceedings. 

Moreover, no reference was made to article 517 whereby such ban was to be published through a notice affixed in court. 

'Time ripe for amendments'

Taking a leaf out of civil procedure rules applicable in England and Wales, Magistrate Axiak observed that the time was ripe for amendments or possibly a complete overhaul of the current provisions under Maltese law.

Certain civil courts in England and Wales could, under particular circumstances, order hearings to be held in private and could issue an “anonymity order” or “interim injunction” banning part or total publication of particular case details.

Such a ban could be requested by any of the parties and was to be flagged to media houses which, once being duly informed, would then be bound in terms of the so-called “spycatcher principle”.

In Malta's case, article 517 has not been amended for “over 50 years,”  Magistrate Axiak said.

In 2022 it hardly made sense to limit publication of such bans to a notice affixed to the courtroom door.

The legislator should seriously consider amending this legal provision and possibly even set up a new legal framework with clear rules on secrecy and confidentiality of court proceedings.

Such a ban ought to at least be notified to all newsrooms while granting them the faculty of possibly contesting it and requesting its revocation in court. 

And any such notice should be “visible” to the public by being uploaded on the courts’ website or published in the main local newspapers, suggested Magistrate Axiak.

'Has public interest really been served?'

Turning to the merits of the case at hand, the court turned down the registrar’s claims of contempt of court but declared that “it was not convinced of the defendants’ argument that the source of their stories were not the transcripts of the voice recordings”.

Such behaviour, though not contrary to law, could easily have prejudiced the interests of justice and that was something the court presiding over the murder compilation, in all good sense, had sought to avoid.

“Therefore, the defendant should well ask himself whether by publishing [those stories] he truly served the public interest or not,” went Magistrate Axiak’s final comment.

Lawyers Veronique Dalli and Andrew Saliba assisted the defendants.