One of four men arrested on board a yacht off Miġra l-Ferħa cliffs almost 10 years ago over an alleged conspiracy to import 30 kilograms of cannabis is to have his police statement removed as evidence against him.

This decision was delivered by the First Hall, Civil Court presiding over a constitutional case filed in 2014 by Marvin Debono, now 31, who back in December 2008 had been arrested alongside three other men on board the Jolly Roger off the cliffs in the limits of Mtaħleb.

The dramatic arrests had followed weeks of surveillance by the police and had led to the seizure of some 30 kilograms of suspected cannabis resin which later actually turned out to be soap bars.

In spite of this unexpected twist, which meant that the arrested men had not actually been involved in the transportation of illicit substances, their mere intention of conspiring to deal in illegal substances rendered them liable to prosecution.

In the course of those criminal proceedings, Mr Debono had filed a constitutional application claiming breach of rights after being denied legal assistance both before and during his interrogation.

Not only had he released a statement without any legal assistance but the absence of a lawyer also meant that he could not find out what information was contained in his police file.

Moreover, the wide discretionary powers granted to the Attorney General at law in determining whether the case was to be decided by a magistrate or a judge, also amounted to a breach of rights since it had a bearing on the applicable punishment.

In its Constitutional Jurisdiction, the Civil Court, presided over by Mr Justice Joseph R. Micallef, observed that the testimony of the few witnesses summoned in the constitutional proceedings sufficed to show that the criminal action against Mr Debono rested upon “the statement itself which he had released without the assistance of his lawyer”.

“Were it not for that statement, proceedings would hardly have been instituted against the applicant,” the court observed, noting that the man had not been allowed to speak to a lawyer throughout his arrest.

Although the right to such legal assistance in the pre-trial stage had not yet been introduced under Maltese law at the time of Mr Debono’s arrest, there has been a long line of both EU and Maltese case law confirming that any statement thus given would constitute a breach of the person’s right to a fair hearing.

Mr Debono had insisted that during his arrest, he had never been handed a bill of rights and had no choice but to answer the questions put by the investigating officer. Moreover, it was to be noted that at the time, the arrested man had been merely 21, not having the slightest hint of “legal knowledge”.

Finding himself in such a situation, the man was likely intimidated into declaring certain facts which he would otherwise have withheld, the court observed, thereby concluding that the statement released by Mr Debono and any testimonies making reference to it were to be expunged from the records of the case still pending before the criminal court.

As for the lack of access to the police file, the court declared that there was no breach of rights since the accused could now accede to that data by means of his lawyer, once the criminal case was still ongoing.

Nor did the court deem that the AG’s discretionary powers amounted to a breach of rights since the law laid down specific criteria for the exercise of such discretion, further granting to the accused the right to contest that discretion.

Lawyers Franco Debono and Amadeus Cachia assisted the applicant.