Court confirms Briton's arrest was illegal

The Constitutional Court has confirmed a judgment delivered by the First Hall of the Civil Court whereby British national Mark Stephens was awarded Lm250 in compensation for his illegal arrest.

However the appellate court overturned the remainder of the judgment.

Stephens filed his constitutional application against the Attorney General claiming that he had been arrested in Spain on the basis of an arrest warrant issued by the Magistrates' Court in Malta in the course of compilation proceedings against two other Britons who were in Malta.

Stephens had requested the revocation of the warrant of arrest but this request was denied by the Magistrates' Court.

In his application Stephens declared that he had been arrested in Spain on the basis of the arrest warrant issued by the authorities at the request of the Attorney General who had based it on the European Convention regulating extradition.

The arrest was not lawful, applicant claimed, for the Maltese courts did not have jurisdiction over the alleged offences which had occurred outside of Malta.

Furthermore, Stephens submitted that there was no court established in terms of the convention to examine the legality of his arrest.

He therefore asked the court to declare that the arrest warrant had violated his fundamental human rights and to provide him with compensation.

The First Hall of the Civil Court had established that the arrest warrant was issued in order for Stephens to answer to charges of conspiracy in the importation of or trafficking in drugs in terms of law.

The law governing dangerous drugs established that the Maltese courts had jurisdiction over every person in connection with the crime of importation of drugs, even if the crime was committed overseas. The law therefore applied to every person, even if such person was not a Maltese citizen and did not reside in the country.

The courts therefore had jurisdiction over Stephens' case.

The court then proceeded to examine Stephens' submission that the jurisdiction of the Maltese courts was limited as the compilation proceedings had been concluded when the arrest warrant was issued.

According to Stephens the courts could not supersede the terms of the remittal of the case and could not therefore order the arrest of Stephens to face charges of association in the importation of drugs.

As a result, Stephens submitted that the arrest warrant was null and void as the court had acted ultra vires its powers. The first court noted that the law was very clear on this issue.

The Magistrates' Court could only hear the witnesses indicated in the terms of the remittal and it could not continue the compilation proceedings beyond the terms of the remittal.

The court was of the opinion that the function of the Magistrates' Court ended at the close of the compilation proceedings and in the remittal stage the only function of the court was that of hearing the evidence produced by the prosecution and of appointing experts to conserve the evidence.

At that stage the Magistrates' Court could not order the arrest of a person involved in the case to answer to charges against him. The case would be different were the arrest to be ordered in connection with a witness for the prosecution.

As a result, the arrest warrant, as issued, exceeded the jurisdiction of the Magistrates' Court at the remittal stage and was therefore in violation of Stephens' fundamental human rights.

The first court added that Stephens had submitted that his arrest was illegal as there was no court to examine the validity of his arrest.

The Criminal Code provided that when a person was arrested on grounds other than those on which he was charged before the courts, such person could apply to the Magistrates' Court for freedom from arrest.

Such an application had to be appointed for hearing and treated with urgency.

The court found in favour of Stephens and ruled that he did not have the same remedy at law as was available to the prosecution.

In conclusion the court ruled that while the Magistrates' Court had jurisdiction over Stephens in respect of the crimes of association in the importation of drugs, the arrest warrant had not been issued in accordance with the law. Stephens was awarded compensation of Lm250.

Both Stephens and the Attorney General appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph A. Filletti and Mr Justice Anton Depasquale. Stephens contended that no criminal proceedings could be filed against him on the basis of the alleged facts and that therefore no arrest warrant could be issued.

The Attorney General submitted that the first court was not correct in its conclusion that the Magistrates' Court, in the remittal stage, could not issue the arrest warrant.

The Constitutional Court confirmed the ruling of the first court to the effect that the local courts had jurisdiction over Stephens even though he was out of the country.

When examining the Attorney General's appeal, the Constitutional Court pointed out that there existed the possibility of review of the validity of an arrest in terms of law.

The European Convention stipulated that there had to be a mechanism for the review of deprivation of liberty which provided for a speedy decision by a court. All that was required, therefore, was for there to be a court which could deliver a decision quickly on this point. Such mechanism existed in Maltese law and the Attorney General's appeal was therefore upheld.

The appellate court also upheld the Attorney General's appeal concerning the powers of the Magistrates' Court to issue an arrest warrant after the compilation proceedings were over.

It resulted that the arrest warrant had been issued by the Magistrates' Court in terms of section 397 of the Criminal Code.

The warrant had not been issued by the magistrate (as opposed to the Magistrates' Court) who was empowered by the Criminal Code to issue an arrest warrant where there were legal reasons for an arrest.

At the remittal stage, after the conclusion of the compilation of evidence, the Magistrates' Court was bound by the terms of the remittal and on the lines indicated by the Attorney General.

It did not result that the warrant of arrest issued in Stephens' regard was the necessary consequence of a request made by the Attorney General for a particular witness to be heard.

As a result, the arrest warrant was not issued according to law and was null and void.

Any arrest effected in terms of the warrant was also an illegal arrest.

However, the Constitutional Court ruled that the first court could not have ordered Stephen's release from arrest as Stephens was being detained by the Spanish authorities both in terms of the arrest warrant and also in accordance with Spanish law.

The Constitutional Court had no jurisdiction over the Spanish authorities.

Once the illegality of Stephens' arrest was the result of a procedural defect and not of an abuse of power, the court ruled that there were no grounds to vary the amount of compensation awarded to him.