Magistrates and judges are loosely using their discretion to ban publication of an accused person’s name or order a case to be heard behind closed doors, according to the dean of the University’s faculty of laws.
“It is very subjective and is applied loosely specifically because of this element of discretion. There are times when such discretion is used well and others when it is not.
“The Criminal Code is clear on these restrictions but something needs to be done to update [the provisions] because we are not living in 1855 when the code was first enacted,” Kevin Aquilina said when contacted yesterday.
His view was echoed by a number of lawyers who complained about the way such decisions were made and on the “fluidity” of the justification for such a stand.
They were approached after Magistrate Paul Coppini on Tuesday ordered the media not to name a priest accused of defiling three girls.
The court also upheld a defence request for the case to be heard behind closed doors.
Many took to the social media to criticise the decision.
Prof. Aquilina generally defended the courts’ prerogative to order such bans, saying it is mostly used to protect the victims of crime.
“The Criminal Code is clear on this. There are certain restrictions to protect the victims of, say, sexual abuse or others in cases involving national security.
There may be the perception that bans are granted to those with a high social standing but this may not be entirely factual
“It all boils down to judicial discretion. There may be the perception that bans are granted to those with a high social standing but this may not be entirely factual because we’ve had high-profile people who did not benefit from such a ban in the past,” he said.
According to law, a court can ban the publication of details of an offence or of the party accused of a crime. However, according to article 517 of the Criminal Code, such an order must be signed by the registrar and posted at the door of the building in which the court sits.
No notices were affixed to the Gozo courtroom where the priest was arraigned.
However, according to Prof. Aquilina, if such a procedure is not followed it does not imply a breach of the law and does not nullify the ban.
Lawyer Joe Mifsud was among those who felt that many such bans were “not according to law” because notices were not being posted on the courtroom door. According to Dr Mifsud and other lawyers who spoke to Times of Malta on condition of anonymity, this makes them “technically invalid”.
“These orders are being dished out very loosely. People out there do not understand how a ban is issued and what they are based on, fuelling the perception that people of a certain standing in society can avoid having their names published by the media. I agree with bans protecting victims of crime, especially of a sexual nature,” Dr Mifsud said.
He recalled how, as a journalist in 1993, he had challenged a court order protecting the identity of a man accused of bigamy. He said he had faced proceedings for contempt of court but the court had eventually ruled in his favour, lifting the order issued by another magistrate.