Jurors are not allowed to be told about the criminal record of the person who stands accused in front of them, but a judge is proposing to change this.
Mr Justice Michael Mallia yesterday asked if the time had come to study whether jurors should know the criminal past of the accused to help them in their deliberation.
He said such a move would balance out the recently-introduced right of disclosure – that is, the right of people accused of a crime to have access to all information the police have against them.
The judge’s proposal was met with mixed reactions from people in the legal field contacted by Times of Malta.
The proposal was included in the judgment Mr Justice Mallia handed down in the case of Gozitan Pasqualino Cefai. Mr Cefai was acquitted by jurors of attempted murder but found guilty of seriously injuring a man when he stabbed him in a Gozo courtroom.
It had been introduced by the justice system in the UK
The judge admitted the proposal was bound to be controversial but noted that it had been introduced by the justice system in the UK.
Former European Court of Human Rights judge Giovanni Bonello agreed that previous convictions “could and must” be relevant when jurors deliberated even though the fundamental principle was that a person must always be convicted or acquitted on proved facts.
He noted that the privilege enjoyed by accused persons not to have their criminal record disclosed to the jury was not a fundamental right but a procedural rule. When a procedural rule started consistently giving “ludicrous” results, it would be the right time for lawmakers to revisit it, he added.
“Mr Justice Mallia rightly observed that, even in the UK, where this foolish principle originated, the law has been changed and the judge has discretion to allow the prosecution to reveal the previous convictions of the accused in specified cases,” Dr Bonello said. On a similar vein, Police Commissioner Peter Paul Zammit qualified his agreement with the proposal.
If the defence of the accused referred to the person’s good character, it would make sense for jurors to know the criminal record, he said. “If, for instance, the defence claims that the accused is such a good person that he can barely harm a fly, it would be helpful for jurors to evaluate such a statement within the context of the person’s history of violence.”
But the proposal was shot down by former judge Philip Sciberras, who last year sat on the Justice Reform Commission headed by Dr Bonello.
He insisted that the accused must always be presumed innocent before found guilty and jurors should base their verdict solely on the facts of the case. “I don’t agree with the proposal... jurors can be influenced by the criminal record and ignore the facts of the case,” Judge Sciberras said, adding this would be unfair on the accused.
He also questioned the link between the proposal and the right of disclosure, which had been a commission proposal.
It was a sentiment shared by criminal lawyer Joe Giglio, who insisted that the right to disclosure was introduced so that lawyers could give their clients better advice.
He noted that jurors were not given a person’s criminal record because they had no adequate legal training and risked failing to distinguish between the facts of a case and the person’s past.
“However, if we are to discuss this matter I suggest we delve deeper. We can discuss the draconian powers of a judge to freeze a person’s assets by simply hearing the Attorney General in his private chambers.
“We can also discuss why the Attorney General has no time limit when producing evidence and the magistrate is powerless to stop this situation, which can result in the compilation of evidence taking years.
“We can also ask why a magistrate is precluded from turning down the Attorney General’s request to hear the testimony of a witness even if this is completely irrelevant and superfluous to the case.”
ksansone@timesofmalta.com