The lack of legal assistance during interrogations will lead to a number of acquittals that will shock the Maltese judicial system, according to criminal lawyer and MP Josè Herrera.
Dr Herrera said there was a large number of cases where the main evidence the police had against the accused was a statement taken without the suspect having had access to a lawyer.
“What will happen to these cases? We are going to have a number of acquittals which will shock the country and its judicial system,” he told the Parliamentary Committee for the re-codification of laws which met on Wednesday evening to discuss a person’s right to legal assistance during police interrogations.
The government has adopted a cautious approach to a European Commission’s proposal granting suspects across the 27 member states the right to have a lawyer present during the actual police interrogation. However, the judicial system is still grappling with a Constitutional Court judgment which ruled that a suspect’s rights had been breached when he was not allowed to at least consult a lawyer before he released a statement to the police during interrogation.
The implications of that ruling are now being tested in court but many criminal lawyers expect that this will lead to acquittals in those cases where the only evidence against an accused is a statement obtained in these circumstances.
The parliamentary committee, chaired by Nationalist MP Franco Debono, will compile a report with recommendations on the matter and submit it to the Justice Ministry for consideration.
Lawyers who addressed the committee agreed that the right to consult a lawyer for one hour before interrogation, which was only introduced in Malta last year despite the provision having been part of the law since 2002, was a step in the right direction. However, they criticised the rule of inference which kicks in as soon as a suspect chooses to consult his or her lawyer. This means that if the suspect chooses to remain silent, as is his Constitutional right, the prosecution can use this against him in court.
The lawyer argued that this rule could not be used unless accompanied by another legal notion of disclosure – meaning that lawyers, before speaking to their clients, would be made aware of all the facts of the case and the evidence that the investigating officer would have accumulated.
Lawyer Giannella Caruana Curran insisted that lawyers could not be expected to give proper professional advice if they were not aware of the full picture. “You cannot have one without the other,” she said.
She said lawyers should also be present during the interrogation to ensure that questions are being put fairly and that the replies are being transcribed in the statement. There should also be audio and, preferably, video recording, adding that the police had audio recording of interrogations in the past.
She also spoke about the importance of privacy during the hour contact of a suspect with their lawyer. She said she had a case where her client had to speak to her in the presence of the police inspector who refused to leave because she did not want to leave her office unattended. Another lawyer, Joe Giglio, said the police investigations should not stop at the statement, adding that the investigations should go deeper than that and not simply attempt to balloon statistics of solved cases. He explained how the lawyers’ presence during interrogations would lead to more thorough investigations in the best interest of the suspect but also that of the alleged victim of the crime.
Police Commissioner John Rizzo and several high-ranking police officers are expected to address the next Parliamentary Committee sitting and give the Police Force’s position on the matter.