Legal history is written as suspect is cleared

Legal history was made yesterday when a man accused of drug trafficking became the first person to be acquitted in a criminal case because he had no access to a lawyer before police interrogation.

The judgment, handed down by recently-appointed Magistrate Marseann Farrugia, followed a decision by the Constitutional Court in April, which ruled that Alvin Privitera’s rights had been breached when the police questioned him and later took a statement from him without giving him access to a lawyer.

In that statement, Mr Privitera had admitted to the crime. Still 18 years old at the time of the arrest, the suspect had been subjected to a strip search at his home, in the presence of a number of police officers, a situation he said that had a bearing on him releasing the statement.

The provision in the law allowing suspects to speak to their lawyers before being questioned had formed part of a raft of legal changes enacted by Parliament in 2002 but it was not activated until February last year, following pressure from Nationalist backbencher and criminal defence lawyer Franco Debono.

After the Constitutional Court ruling, criminal defence lawyers started demanding similar rulings, which, in turn, led to trials by jury being postponed and a number of others grinding to a halt.

After declaring a breach of human rights in Mr Privitera’s case, the Constitutional Court threw the ball back into the Magistrates’ Court’s court to come up with a remedy.

In a decree given hours before the judgment of Mr Privitera, Magistrate Farrugia came up with the remedy, saying it was precisely the Constitutional Court that gave the solution when it said that the court should “evaluate the validity and admissibility of the evidence before it”.

The magistrate said that for her this meant that the magistrate should ruminate on the evidence and, if the police statement was found to be in breach of human rights, then it should be excluded from the considerations of the court.

In view of the decree, Mr Privitera was acquitted of trafficking in cannabis resin and possession of the drug in circumstances denoting it was not for his exclusive use in March 2007.

Magistrate Farrugia said that once the only evidence produced in court was Mr Privitera’s statement and that was found to be in breach of his human rights then he should be acquitted.

Speaking in the wake of the judgment, Dr Debono said it seemed the courts would examine each case on its own merits, depending on the bearing a statement obtained by the police prior to the legal changes in February 2010 would have on a given case.

Remedies would vary from case to case and could include retrials and pecuniary compensation, where a decision would have already been taken, he said.

Another criminal defence lawyer, Joseph Giglio, described the decree as “excellent”. However, he questioned its implications for trials by jury, arguing that jurors would not be able to make that mental distinction between a statement that was in breach of human rights and one that was not.

Shadow justice minister José Herrera predicted at a parliamentary committee for the re-codification of laws last month there would be a number of acquittals that will shock the country and its judicial system.

He said there were a large number of cases where the main evidence the police had against the accused consisted of a statement taken without the suspect having had access to a lawyer.