Legal change will allow re-arrest to be contested

The Cabinet yesterday approved a memo by Home Affairs Minister Tonio Borg on changing a provision in the Criminal Code that empowers the Attorney General to privately consult a judge to seek a person's re-arrest if acquitted during the compilation stage.

Under the amendment, the procedure will have to take place in the open and the person involved will be able to contest his re-arrest.

The change comes after the Constitutional Court last February declared that this provision, and the possibility of the continuation of the compilation of evidence and consequential indictment, were likely to breach a person's right to a fair hearing.

The Constitutional Court, composed of Chief Justice Vincent De Gaetano, Mr Justice Joseph A. Filletti and Mr Justice Joseph D. Camilleri, had given its ruling following an appeal by Joseph Lebrun, 50, of Marsascala, who was charged with conspiring to deal in seven kilos of heroin and importing and trafficking in the drug on and before June 6, 2005.

Mr Lebrun was the fourth man to be charged in connection with the drug find. The others were Silvio Buttigieg, 32, of Cospicua, Angelus Vella, 52, of Cospicua and Jason Said, 32, of Fgura.

The police had used recordings of phone conversations to back up their case at the compilation stage, and following 11 court sittings, Magistrate Anthony Vella cleared Mr Lebrun on grounds that the prosecution had failed to prove his involvement to the level required by law.

The magistrate ruled that the prosecution had not drawn a link between Mr Lebrun and the mobile telephone line that had been investigated and the recorded conversations which led to the drug find.

He also decided that the prosecution had not sufficiently proven that the voice heard in the recordings was that of Mr Lebrun.

The Attorney General resorted to a clause in the Criminal Code and sought Mr Lebrun's re-arrest so that he could face compilation proceedings.

Following appeals and counter appeals, the matter ended up before the Constitutional Court. Last February, the Constitutional Court froze Mr Lebrun's case for three months and ruled that unless there was a procedure of revision, the court's decision of November 2005, which had found no case against the accused, should hold.

Questioned by The Times yesterday, Dr Borg said the Cabinet had approved a change he had proposed to the law and this should be published in today's edition of the Government Gazette.

"As the law stands, when a person is acquitted at the compilation stage, the Attorney General can consult a judge who does not normally preside over the Criminal Court, to persuade him to seek that person's re-arrest to continue to face the charges.

"The law has been like that for over 150 years. It is now being argued that the accused should be able to contest his re-arrest.

"So we will be changing the law so that in cases like this, procedures will have to be conducted in the open and the party involved has to be notified to be able to contest it.

"In existing cases, the Attorney General will have a month's time to regularise the arrest," Dr Borg said.

The amendment is expected to be discussed in Parliament next week and to be approved before the three months given by the courts in Mr Lebrun's case elapse, Dr Borg said.