Publicity in a criminal case is the fundamental right of the accused but he still has the prerogative to waive it, according to human rights expert Giovanni Bonello.
Dr Bonello, a former judge of the European Court of Human Rights, said that when an accused person exercised such a prerogative the onus fell on the court to decide whether acceding to such a request would run counter to the public interest.
“The court has a very delicate balancing exercise to perform, weighing the reasons for allowing secrecy and the reasons for refusing it.
“As the law starts with a presumption that publicity is more the right of the accused than it is the right of society, the waiver by the accused of his right should weigh very heavily in favour of the decision of the court to ban publication,” he said.
Dr Bonello said that according to human rights laws, publicity in a criminal trial was the fundamental right of the accused as it ensured that public scrutiny fortified the proper administration of justice.
Publicity has a secondary function too, that of ensuring public confidence in the administration of justice. Being the right of the accused, s/he has the prerogative to waive it.
“The waiver by the accused does not automatically bring about a trial in camera and a ban on publication. The trial judge has then to balance the non-publicity requested by the accused with the public interests militating in favour of publicity,” he said.
“In exercising his or her judicial discretion, the trial judge must also factor in other relevant considerations; some explicitly listed in the [European Human Rights] Convention, such as the protection of morals, the rights of juveniles, the privacy of individuals, the presumption of innocence and the negative effects of virulent press campaigns,” he added.
He was contacted after Magistrate Paul Coppini on Tuesday banned publication of the particulars of a Gozitan priest accused of defiling three minors. The ban was lifted yesterday by Magistrate Neville Camilleri following a request by the prosecution.
Magistrate Coppini also ordered that the sitting be heard behind closed doors.
Discussing the matter from a constitutional and human rights law point of view, Dr Bonello noted that the publicity of a criminal trial was one of the major guarantees for the fairness of the trial. Such guarantee was principally in favour of the accused, to ensure that he received a fair trial.
On this issue, the European Court of Human Rights had observed that the right to renounce the publicity of the trail was not absolute.
It ruled that the renunciation “must not run counter to any important public interest”.
The European Convention of Human Rights expressly empowers the court to allow a criminal trial to be held behind closed doors.
“The press and the public may be excluded from all or part of the trial, in the interest of morals, public order or national security and where the interests of juveniles or the protection of the private lives of the parties so require,” he said.
This, he added, gave the trial court “a very wide discretion” and threw a tremendous burden on how to exercise that discretion fairly.
“When deciding on publicity or non-publicity, the court must weigh very carefully the competing interests of the accused and those of the community. One factor that the court must also take into consideration is how far publicity can work against the presumption of innocence of the accused.
“In cases where the accused, or the prosecution, or both, request a ban on publicity, the dice is massively loaded in favour of non-publicity. To exercise his or her discretion in favour of publicity, the trial judge has to be convinced that there are massive public-interest considerations that override the rights of the accused,” Dr Bonello said.
He said he would like to believe that when a court decided on a ban on publicity it did so responsibly, having weighed all the considerations. “Surely that goes well beyond the mere social status of the accused,” he said.
Apart from being there to protect the interests of someone accused of a crime, publicity also served to ensure that the confidence in the courts would remain. “Transparency and public verifiability are essential to retain confidence in the courts,” he pointed out.