In a landmark pronouncement, a constitutional court extended the right of an arrested person to having his lawyer present when testifying at a magisterial inquiry.
Legal Notice 35 of 2010 had established the right to a lawyer during police interrogations, but not to magisterial inquiries.
The declaration was made by the First Hall, Civil Court following a constitutional reference by the magistrate presiding over criminal proceedings against Josianne Azzopardi.
Back in February 2004, Ms Azzopardi was one of several individuals arrested in connection with her suspected involvement in a drug-trafficking activity. At the time, the suspect was merely 18 years old and had no previous experience in relation to a police arrest.
On February 13, 2004, the day following her arrest, Ms Azzopardi had released a statement under police interrogation without having spoken to her lawyer. Later that same day, the woman confirmed her statement under oath before the duty magistrate. However, once again, no legal consultation was sought. Moreover, when testifying in the inquiry, Ms Azzopardi supplied further details regarding her involvement in the drug trafficking operation.
Following her arraignment, proceedings continued before the magistrates' court as a court of criminal judicature, which are still ongoing. An objection was raised by the defence counsel about the fact that Ms Azzopardi had not been granted the right to consult her lawyer at any time during the pre-trial stage.
This shortcoming could amount to a breach of the accused's right to a fair hearing, as safeguarded under article 39 of the Constitution and article 6 of the European Convention, the defence argued.
Following a reference in February 2016 by the presiding magistrate to the First Hall, Civil Court, presided over by Madame Justice Anna Felice, it was observed that in 2004 the right to consult a lawyer in the pre-trial stage had not yet been brought into effect under Maltese law. (In 2010, the right to consult a lawyer during police interrogation was brought into effect.)
The court observed that the prosecuting officer had pointed out that Ms Azzopardi had been in an "agitated" state when making her statement before the inquiring magistrate.
The court declared that should the interrogation statement be used as evidence against her, even though no legal consultation had been made, there would be a breach of Ms Azzopardi's right to a fair hearing.
The constitutional court referred the case back to the magistrate's court for proceedings to continue.
Lawyer Jason Azzopardi was defence counsel, assisted by Kris Busietta and Julian Farrugia.