Legal apples and turnips

In his article Bailing Out Human Rights, Judge Giovanni Bonello (April 27) compared a recent local judgement, which ruled that a law granting the Attorney General the right to appeal (or, rather, review) bail decisions but denying the same right of appeal to the accused, constituted a breach of human rights, to another judgement, of the European Court (Stephens vs Malta). This, however, did not deal with appeals from bail decisions but with the different issue of appeals from illegal arrest claims.

Considering the high esteem in which Judge Bonello, who was one of the presiding judges in the Stephens case, is rightly held in legal circles, including by myself, this erroneous consideration and other factually incorrect statements based on inexistent quotes and wrong references from his own judgement, risk prejudicing the local case to which he made reference and which is still subject to appeal.

Furthermore, it is even more worrying not only that the same errors surfaced previously in a particular blog but also that the author did not take the opportunity to rectify the errors in a subsequent and related contribution entitled Bad Law? Worse Remedy (May 2).

Contrary to what Judge Bonello stated, the Stephens case, in fact, had nothing to do with bail and nowhere is bail (Criminal Code, article 574 et seq) mentioned in the judgement. The judgement concerned illegal arrest under article 409A of the Criminal Code, a fact that is very clear from the judgement itself, particularly paras 95 and 96.

Thus, Judge Bonello was incorrect when he stated that “the European Court of Human Rights had already ruled (Stephens v. Malta, no. 1) that the Maltese system, by virtue of which an accused denied bail cannot appeal (while the prosecution can when the court grants bail), does not violate the accused person’s fundamental human rights”.

Since illegal arrest and bail are two separate and distinct issues and since Stephens ruled about illegal arrest (article 409A) while the local judgement dealt with bail (article 574 et seq), it is also incorrect to state that there was any overruling by a Maltese court of a Strasbourg judgement because the merits of the two cases concerned two different and unrelated articles of the law. Based on wrong premises, his conclusions consequently collapse.

Moreover, it is an accepted fact that, in any event, case law evolves and courts are not precluded from different interpretations in the future.

As to the principle of equality of arms, it is clear that this has to be examined in regard to each of the various and different aspects of criminal procedure. The requirements of equality of arms in matters of illegal arrest are not necessarily satisfied in a manner similar to those in matters of bail because the two issues are not identical. They might be but not necessarily.

There is especially one fundamental difference between bail and illegal arrest. Arrest is either legal or ille

gal. On the other hand, regarding bail, the court not only decides whether to accede or deny the request but also imposes various conditions and the Attorney General has a right of appeal (or, rather, review) not only from the granting of bail but also from the conditions imposed.

Thus, I agree with Judge Bonello that, as he said, one should never compare apples and turnips.

Moreover, I agree with Judge Bonello in another respect, that this right of appeal from a denial of bail should be granted to the accused independently of whether it consitutes a breach of human rights or not because it is already granted to the prosecution. Laws are not amended and rights granted only where the dangerous territory of breach of human rights is invaded.

Recourse to the Constitutional Court should also be understood in the whole context of our legal system, which, unfortunately, does not allow other third tiers of review. In fact, in the recent President’s Forum, the issue of setting up a Supreme Court surfaced in the debate.

But, then, some of the fundamental structures of our juridical set-up need revisiting!

(The author is a criminal lawyer and was first counsel in the case mentioned.)