The other side of (de)fence

I am not sure what the most attractive part of the recent Police Commissioner ap­point­ment is – whether it’s his personable and affable personality or the fact that he is taking on the role after a sabbatical from the police force. Leaving a 25-year-long career and life-investment behind you and deciding to take a brief stab at the other side of (de)fence, when you’re pushing 50, can’t be easy. Creating a certain amount of distance bet­ween yourself and the only career you knew and allowing yourself a refreshing breather does wonders for renewing one’s perspective.

It is very easy for police officers who are put in positions of power to lose their human touch and go on extended power trips

Or perhaps the most attractive part of the equation is quite simply the fact that I know the new Police Commissioner, well enough to know that I like him and always did.

I worked at the Attorney General’s office for a number of years, and he was one of a handful of police officers I felt comfortable with. There were many more officers that made me uneasy, even though we were all supposedly batting for the same side. There was always a fundamental honesty and gentlemanliness about Zammit which shone through.

When I left the AG and switched sides, he remained the sort of officer you could talk to freely and unthinkingly about a case, without walking away feeling you’d just let the cat out of the bag. Or that he was doing a recce the whole time he was talking to your client, masquerading as a do-gooder when really he was on a mission to extract as much vital information as he possibly could, to later use against him.

Unfortunately, over the years, success in the police force has come to be measured in terms of scoring goals and racking up convictions. And this trigger-happy forma mentis has corroded the fundamental principles of the presumption of innocence and reasonable doubt, relegating them to one-sided principles and beliefs which only seem to exist for the defence, while remaining an anathema to the prosecution.

Cutting losses, conceding defeat and securing an acquittal should be as much a part of a prosecutor’s profile and brief as any conviction, if justice really is about the pursuit of the truth, and if the accused really is presumed innocent.

I’ve written about this before, but it bears repetition. Over the years, the police force, hand in hand with the Attorney General’s Office, have abdicated their prosecutorial privilege and discretion, by which I mean that in a large number of cases, prosecutors have repeatedly and successively failed to exercise their discretion not to prosecute cases which clearly didn’t warrant so doing.

You see, when the evidence resulting from a criminal investigation does not support the charges, or when evidence is sufficient to indict but unlikely to result in a reasonable doubt conviction – such instances definitely constitute legitimate reasons to abstain from prosecuting a case. For the most part, however, reasonable doubt is thrown out the window, criminal cases are treated like civil cases, where probability is more than enough to warrant prosecution and sometimes even conviction.

Our Courts of Criminal Appeal have indirectly aided and abetted this unhappy state of affairs over the years by championing and confirming far too many of the Attorney General’s already extended and excessive appeal applications, while dismissing with gay abandon those appeals filed by convicted people.

It would seem like the only safe haven in this pro-prosecutorial system are the jurors, who ultimately can ignore even the most heavily-loaded closing arguments and trust their innate discretion.

That said, there have also been times when jurors who returned not-guilty verdicts were put under the microscope and treated with suspicion. The recent probe and inquiry into the jurors who returned a six-three verdict, acquitting the accused of drug-related crimes, seems to suggest that in drug-cases, jurors aren’t allowed to disagree with the prosecution.

That no one was immune to the microscopic scrutiny of the prosecutorial regime would seem to be as much a part of the outgoing Police Commissioner’s legacy, as was his record for solving a large number of crimes. No one can dispute that John Rizzo was a workhorse who strove tirelessly and possessed investigative prowess.

That said, under his watch, the police force had acquired a reputation for hasty, disproportionate, unnecessary and sometimes even dubious arraignments. Whether the label was deserving or not is largely unimportant. Justice is more about perception than anything else.

It is very easy for police officers who are put in positions of power to lose their human touch and go on extended power trips. Zammit could definitely be that person who keeps the system in check and reminds his subordinates that they are people before they are policemen.

I do believe his brief romance with the defence has given him an edge, an insight into the plight of the human condition, which will ultimately translate into greater empathy all round.

I am quite confident that Zammit has the versatility and strength of character to dare to be different and not lose touch with his inner voice and discretion. I sincerely hope he will not perpetuate the culture of paranoia and suspicion which has defined the police corps for far too long, and will instead restore the hierarchical discretionary safeguards which have gotten lost along the way. Even the Constitutional Court has fallen victim to this culture, often sounding more prosecutorial than judicial.

You need look no further than paragraph 37 of the Police vs Patrick Spiteri Constitutional Court judgment delivered on January 25 this year. The tone and sentiments expressed therein fall short of being detached and unimpartial. Had they been written by a prosecutor, it would have been perfectly kosher. As it is, spouting from the most supreme court of the land, the tone is off-kilter and sounds like the court has been hijacked or gone AWOL and taken the presumption of innocence with it.

michelaspiteri@gmail.com