Updated 7 p.m.
A Magistrate declared this evening that there was no reasonable suspicion that former broadcaster Norman Vella had committed a crime and ordered that his iPad and iphone be returned immediately by the police.
The ruling was given after Magistrate Marseanne Farrugia heard evidence in an application filed by Mr Vella for the return of the items.
The items were seized on Sunday when Mr Vella was arrested at his place of work and questioned over claims that he had photographed Kurt Farrugia, head of government communications, and Ramona Attard, communications coordinator at the Home Affairs Ministry at a restricted area of the airport before they left for London. Mr Vella is an immigration officer at the airport.
The equipment will be handed to Mr Vella tomorrow as they are locked in the court safe.
During the hearing earlier today, Lawyer Karol Aquilina told a court that he had been told by a police inspector that it was Kurt Farrugia and Ramona Attard who told the police that former broadcaster Norman Vella had photographed them as they left for London on Sunday.
During the same hearing in court, Police Commissioner Peter Paul Zammit said that he had not seen the alleged photo.
In his submissions, Commissioner Peter Paul Zammit, said the police were within their rights to seize all evidence as part of their analysis of the allegations made.
He said that prima facie, it appeared that Mr Vella used telephone equipment in a way which raised suspicion that he was carrying out an act of communication in a restricted area in breach of the law (art 257 of chapter nine on the revealing of professional secrets).
In relation to the case, the police had seized and was still examining CCTV footage taken at the airport.
Forensic examination, he said had to be carried out under the proper forensic conditions to ensure authenticity of the examination. Should the items be returned without proper examination, all parties would remain under suspicion.
The commissioner called on the court to turn down Mr Vella’s application until the necessary examination of the items was completed.
NO CRIME COMMITTED - LAWYER
In reply, lawyer Therese Comodini Cachia asked what was so secret about two people walking through the airport, It was not an offense to use a mobile phone in that area. This was a public area and everyone used a mobile phone there.
Mr Vella's arrest had been made over an alleged crime, but there was no crime.
Dr Aquilina said that the Commissioner would have to explain why the items were confiscated. There were no proceedings against Mr Vella and no justifications for the police to retain the items.
The alleged photo did not exist. The police had used every possible manner to see if Mr Vella had taken the photo.
Dr Comodini Cachia noted that Mr Vella had a pending court case against the prime minister. All this information, including communication between him and his lawyers, were stored on those items, making this a very serious situation.
COMMISSIONER - INVESTIGATION STILL UNDER WAY
In response the Commissioner said that Mr Vella was an immigration officer and in his position he could hold no information about whether someone had left the country or not. There could never be any transmission of data regarding passenger movements and there was a specialised computer system to protect this data.
If the items were given back then the investigation would be prejudiced. His duty was to gather all possible proof.
Mr Vella could not act as a journalist while working as an immigration official.
He said the police had received an allegation that a person, probably Mr Vella, had taken a photo of people leaving the country to go to London. He had ordered an investigation and Mr Vella was questioned and CCTV footage was examined.
In the footage taken near the (passport) booths Mr Vella was seen talking to another person and it looked looked like he was transmitting data. He presented a still image showing Mr Vella face down looking at his phone.
The Commissioner said that shortly after, a photo was uploaded on Daphne Caruana Galizia's blog. The allegation was that Mr Vella sent an SMS or had phoned Caruana Galizia about these two people leaving the country.
There was also information where someone had heard Mr Vella in a heated telephone conversation, mention the names Ramona and Kurt.
Asked if there was a recording, the commissioner said there was no sound on the CCTV.
Asked who had filed the report about Mr Vella, the commissioner said he was bound by law not to say.
The commissioner said he spoke to the minister (Manuel Mallia) after he called him to ask about what was going on.
The Commissioner said the police had not spoken to Daphne Caruana Galizia and he had not seen any photo of the alleged incident.
The CCTV showed the camera of the phone pointing downwards and his suspicion was that Mr Vella was sending data at that point. The suspicion was that he sent data to a third party.
He said a request for call logs had not been made and would not be made. His phone was no tapped either. He would have to first check the items for evidence before call logs would be requested.
A court expert would be able to tell if a photo had been deleted or not.
INSPECTOR SAID FARRUGIA, ATTARD FILED REPORT
Taking the witness stand, Dr Karol Aquilina said that at 6.50 p.m. on Sunday he received a phone call from Police Inspector Maria Stella Attard who told him that Mr Vella was under arrest and he wanted to speak to a lawyer.
She told him that she had received a report from Kurt Farrugia and Ramona Attard that their photo was taken by Mr Vella and she said she was going to confiscate his mobile phone.
He told her that she could not do that and no law had been broken. He tried to call the commissioner but his phone was off.
Inspector Attard confirmed to him that Kurt Farrugia and Ramona Attard had filed a police report.
(The officials denied the claim, see separate story)
IMPLICATIONS ON SCHENGEN AREA SECURITY
Replying the Commissioner said this was a serious case especially where the airport was involved. Security at the airport has been certified and a breach of this sort was serious.
The police had to confirm whether or not the law was broken as this could affect Malta's standing in the Schengen area. If the allegation proved to be incorrect then he would breathe a sigh of relief.
The Magistrate is expected to take a decision in the coming hours.