“Whenever I read local stories about home-less migrants charged with petty theft or fraud, I make sure I read the online judgements. More often than not, they receive immediate effective prison sentences. Which saddens me.

“I’m not for one moment condoning criminality here; but, being a lawyer, I can read the signs pretty clearly – that pleading guilty, as a rule, is when you don’t have, or cannot afford, proper legal representation.

“Conversely, we have murderers, money launderers, drunken drivers and criminally negligent construction companies all pleading not guilty, landing bail and taking their cases all the way to the appeals court...” (Murder in Minneapolis’, Times of Malta)

That’s the tail end of an article I wrote in June. I wasn’t to know that two months later Malta would be rocked by the sort of double-murder that shakes a country’s identity and mobilises its police force. Nor was I to know that 10 days after that shocking murder, a homeless Libyan national would be remanded in custody after pleading not guilty to stealing a can of tuna.  

The police response and investigation into the murder has been brilliant. But the case has also shone an equally brilliant light on a criminal justice system that many believe is deeply flawed and beyond repair. For weeks now, many have been trying to wrap their heads around the fact that one of the suspects was a dangerous, trigger-happy felon who was being prosecuted for a 2017 armed robbery and attempted murder, and yet, was out on bail and not in pretrial custody.

Bail, which is a form of provisional release for defendants, is common practice the world over. Its primary purpose is to allow persons who have been arrested and accused to remain free until they are formally indicted or convicted, while ensuring they don’t abscond. Given that a case will often take several years before it reaches trial and then years to reach conclusion, a defendant who is not released on bail is effectively in jail and as good as serving time for a crime of which he hasn’t been found guilty.

Hard as it may be for the public to swallow, it is actually not that surprising that bail has long been considered a fundamental (and commendable) human right, especially as some defendants are eventually acquitted.  Pretrial detention therefore runs the risk of becoming an advance punishment of persons who are, until sentenced, presumed innocent. It would be interesting to find out how many people in jail are serving actual convictions and how many are awaiting trial, and thus ‘innocent’.

The vexata quaestio of bail has always courted (literally) controversy. As both a lawyer and the victim of an ugly burglary, I am perfectly capable of seeing both sides. When the suspects in my burglary made bail 20 months after they were arrested (the maximum period of pretrial detention allowed by law), I compared it to the film Jaws – the great white shark was back in the ocean and would look for its next victim or swim away.  

In fact, they weren’t seen in court again and have since absconded. But another part of me felt that the prosecution blew it. They had 20 months to get their act together and file the indictment. Failure to do so allowed the suspects to exploit the loopholes in the system. Good luck to them.

Justice doesn’t prevent ghastly things from happening. It can’t. At best, it can only deter- Michela Spiteri

In fact, although I stand to be corrected, the only case I can think of in (my) living memory where a bill of indictment was actually filed before the expiration of the 20-month period was in respect of brothers Alfred and George Degiorgio and Vince Muscat, who stand accused of the murder of Daphne Caruana Galiza. This is the only way a person, not yet convicted or sentenced, can be detained legally. It would therefore be useful to know exactly how many other people are awaiting trial for murder and for how long. Off the top of my head, I am able to recall the 2008 murder of a mother of three. Twelve years later the accused is still awaiting trial. This is when you begin to understand why the argument against bail and in favour of pretrial detention has no legal traction.

My ‘beef’ with bail and the criminal justice system has always been its ‘two-tier’ nature, whereby the poor, who can’t afford bail or proper legal representation, languish behind bars or are frequently coerced into pleading guilty without appreciating the long-term repercussions. Migrants and other indigent members of society will usually end up there, not realising that, even if they’ve done something innocuous like steal a gas cylinder or a can of tuna, guilty pleas and ensuing convictions will land them a criminal record where they are now ‘repeat offenders’.

And that’s the rub: a homeless man, desperate to survive, could serve a disproportionate sentence while someone charged with, say, money laundering will afford proper counsel and not plead guilty.  OK, he might spend a week or two in pretrial custody, but he will eventually be released. Years later he will stand trial, by which time a cold case, the law’s delay and possible prosecutorial errors will have served him pretty well. And if not, there’s always the Court of Appeal. 

Of course, when it comes to murder, bail and jail there is no hard and fast rule. The soldiers accused of murdering Lassana Cisse were granted bail after eight months. (It would be nice if that inquiry received the same assiduous, minute by minute media coverage that we have become accustomed to seeing in other inquiries.)  

Still, something tells me that Yorgen Fenech won’t be making bail anytime soon. And neither will Daniel Muka – on this occasion.

I also hope that the prosecution, this time round, will step up and file the indictment at record-breaking speed so that there will be no loophole for Muka. No chance to abscond or commit another offence and risk a sterling police investigation having been in vain.

That might provide some consolation and comfort to the friends and family of Christian Pandolfino and Ivor Maciejowski.  Justice doesn’t prevent ghastly things from happening. It can’t. At best, it can only deter. Its real function comes after the event. We await that now.


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