Motorists and their passengers are 'helpless' during roadblocks - lawyer

Drivers or passengers stopped at roadblocks have no choice but to obey orders or face prosecution due to the vast powers given to the police and military, a leading criminal lawyer has told The Sunday Times.

Emmanuel Mallia said it would be very difficult to challenge the actions of police officers or soldiers during roadblocks, and those who disobeyed an order could end up being arrested.

Dr Mallia said that motorists or passengers who were not careful about their behaviour towards officers often faced criminal charges - the "favourites" being vilification and threatening public officers or defamation.

"Once road blocks are authorised, then irrespective of the individual's civil liberties, the drivers and passengers end up in a state of helplessness...

"This has always been deemed as a question of public policy, as otherwise the police won't be able to order anyone to do anything. Yet it can give rise to very serious abuses," he added.

Last week, The Sunday Times reported the experiences of some people stopped in roadblocks, who complained that they were frisked on the basis of their age and appearance.

The Armed Forces last week warned the public to cooperate, adding that if soldiers were obstructed from performing their duties, "drivers or passengers may make themselves liable to prosecution".

The AFM said roadblocks started more than 30 years ago and remained in force to "support law enforcement efforts, not trample on civil liberties".

However, Dr Mallia countered: "A legal provision that has been present for a long time only denotes that it stood the test of time, but it does not necessarily and automatically mean that it stood the test of constitutionality".

Those who feel wronged can only take action after the incident, and after all orders have been obeyed without question. Individuals who feel aggrieved can either file a report to institute proceedings against a police officer or soldier, or challenge the law as unconstitutional. But "this is easier said than done", according to Dr Mallia.

He said: "The State should instead provide remedies for redress, which are appropriate and easily accessible by the individual and which ultimately provide for a fair, prompt and effective remedy."

Although the law states that officers must have 'reasonable suspicion' to stop and search a vehicle, Dr Mallia said in reality officers had wide discretionary powers to stop any vehicles in a sort of "pick and choose" exercise.

This power is only liable to be challenged if it is proved that it has been exercised in a discriminatory manner.

"One might easily say that the situation should be endured in the name of public policy and law enforcement. Yet once the very delicate balance between the civil liberties of the individual and the protection of society and the prosecution of offenders starts being tampered with through the abuse of similar legal provisions, authorities should re-evaluate the situation, both on a legislative basis and on the interpretation and implementation of such laws," Dr Mallia said.

Last January, the European Court of Human Rights ruled that stop and search powers given to the UK police under the Terrorism Act breached human rights because they did away with the reasonable suspicion requirement.

Some criminal lawyers in Malta believe that although reasonable suspicion forms part of Maltese law, a random approach is more often than not practised during roadblocks.