Only one in four opts for legal assistance

Only 23 per cent of police suspects opted to take advantage of a new legal provision giving them the right to speak to a lawyer before being questioned.

Figures given in Parliament by Justice Minister Carm Mifsud Bonnici in reply to a parliamentary question by Nationalist MP Franco Debono revealed only 709 of the 2,994 people arrested by the Criminal Investigations Department since February 2010 opted to consult their lawyer before interrogation.

Some criminal lawyers argue that suspects are better off not consulting their lawyers before being questioned as this effectively nullifies their right to silence – since the court is then entitled to draw inferences from a non response.

This amendment, along with one giving suspects the right to consult their lawyer before being questioned, came into force eight years after they were approved by Parliament.

Lawyer Leon Bencini believes the disadvantages of a lawyer’s intervention outweighs the advantages for suspects.

“The law should work in such a way that is not inhibitive. The rule of inference, in my opinion, interferes with the right of a suspect. This law puts lawyers at a psychological and legal disadvantage. While wanting to help their clients, they know that their clients could be at a disadvantage if they ask for their advice,” he said.

Criminal lawyer and Labour justice spokesman Jose Herrera said suspects were better off not consulting their lawyer because it would enable them not to reply to questions without the fear that this choice, granted to them by the Constitution, would be used against them in court.

The right to remain silent during interrogation may serve as corroborative evidence against the suspect who is eventually prosecuted for a crime if the suspects opt for legal advice, Dr Herrera explained, adding that this law must be complemented with another legal notion of disclosure.

This would mean that before speaking to their clients, lawyers are made aware of all the facts of the case and the evidence compiled by the investigating officer.

Criminal lawyers Veronique Dalli and Arthur Azzopardi are also of the opinion that the rule of disclosure is a must for this legal provision to have a better effect and for lawyers “not to give advice in a vacuum”.

Dr Debono, himself a criminal lawyer, believes the time has come to look at the provision and how it works – and fine-tune it.

He had campaigned for the provision to be brought into force and the government’s procrastination on its implementation eight years after it was passed by Parliament was one of the reasons why he had absented himself from Parliament late in 2009, jeopardising the government’s one-seat majority.

Contacted yesterday, Dr Debono said the figures were positive and showed that people wanted to consult their lawyers prior to being interrogated by police. However, he believes this provision should be improved by, among other things, including the rule of disclosure.

Other improvements could include mandatory recording of statements, both in audio and video format, and upgrading the right to legal assistance by introducing the presence of the lawyer during the interrogation.

Dr Debono said there were two Constitutional cases his clients had won –still subject to appeal – which ruled in favour of a suspect’s right to have a lawyer present during police questioning.