The rights of the defence constitute an important pillar in any democratic society.

Four aspects of the rights of the defence have been depleted by changes in the law of criminal procedure:

1. The law states that testimony must be viva voce, that is to say in open court, on oath and in the presence of the accused. A judgment given by the Court of Criminal Appeal in Republic of Malta v Francis Casaletto, (1985) had established that no use can be made in a criminal trial of a statement taken by the police following the arrest of the person making the statement that was later confirmed on oath before an inquiring magistrate as that is not viva voce testimony.

The law was changed (Chapter 101) and it now allows a statement taken by the police in a place of detention to be later confirmed on oath before a magistrate and provides that such a statement will constitute evidence.

2. The law in Malta never allowed the assistance of legal counsel during interrogation. The law in this respect has not been changed, although the right to such assistance is available in Turkey. However, the case law of the European Court of Human Rights now makes it clear that any person, after being arrested, has the right to be assisted by a lawyer (Salduz vs Turkey, 2008).

3. The law allows a person who testifies during the compilation of evidence against an accused person to testify again at his trial and the defence has the right to cross-examine the witness. The law has been changed. In cases concerning a charge of defilement of minors, the witness is produced in court on only one occasion, that is during the compilation of evidence, and must be cross-examined there and then. At that point, the witness will have already been questioned by the police without any judicial controls and will have already made a statement to the police, whereas defence lawyers will be denied a copy of it (Police v Vincent Portelli, decree given in 2009, by the Magistrates' Court).

Moreover, the defence will not yet have access to all the evidence that the prosecution has in its possession. This creates a serious imbalance between prosecution and defence. The defence will be unable to cross-examine the complainant again later as the law does not allow it.

4. Since the start of British rule in Malta, the law provided that when the only evidence against the accused is that of an accomplice, there must be sufficient corroboration in order to convict the accused person. This vital safeguard has now been removed. It is now possible for an accused person to be convicted on the testimony of one or more accomplices or tainted witnesses (Police v Christopher Cassar, 2007).

I have always believed that our law of criminal procedure should neither favour the prosecution nor the defence but must favour justice.

I shall be submitting this matter to Franco Debono as chairman of the Parliamentary Committee on Changes in the Law for its consideration.