The case of accused Liam Debono and victim PC Simon Schembri is almost too well known. While I have no doubt that the recent gagging order slapped on Xarabank was well intentioned, I don’t think I’m far off the mark when I say that, by and large, it has taken place in a litigious bubble. To mix metaphors, the horse has bolted. The gagging ultimately now defeats its very purpose. 

In fact, ever since that ruling, the media spotlight has relentlessly shone on both parties, with every Joe, Peppi, Saviour and Andy freely discussing the interview ‘that never was’. The gagging notwithstanding, the rest of us are still at liberty to write/blog/tweet or ‘facebook’ our comments, without apparent legal consequence. It’s a state of affairs that has gone on for months.

This unusual gagging order was recently debated on TVM’s XTRA, with Saviour Balzan moderating a cut-and-thrust discussion between presenter Joe (Peppi) Azzopardi and Andy Ellul, Schembri’s lawyer.

You could argue that, while Schembri’s interests were represented here, once again Debono’s were not. Yes, I had been given to understand that it was the accused’s lawyer (Franco Debono) who declined the invitation; but I’d argue that by so doing Team Debono was in fact conducting itself far more scrupulously. 

A few months ago, you see, I wrote a piece supporting Schembri and virtually slamming Debono. And, if I’m to be completely honest, my article crossed a line and arguably flouted the presumption of innocence. That certainly wasn’t fair to Debono, and perhaps it wasn’t to Schembri either.  

When push comes to shove, jurors base their decisions on the evidence before them and not on public opinion

Basically, just as a trial has to be fair to both victim and accused, so too must the media. Any imbalance is not only prejudicial towards the accused but could also return to haunt the victim. Which is why I share Azzopardi’s point of view: that the hearing of just one side and not the other is both bad journalism and bad justice.

To argue that media exposure of the victim can’t possibly constitute pre-trial prejudice (precisely because he is the victim and not the accused) is absurd. On the contrary, given that the accused is the only one standing trial, a victim’s over-exposure is, to my mind, far more dangerous. The accused may not be able to use his own media appearance to argue that he was deprived of a fair trial; but he can certainly use the victim’s. 

This point may have been missed by many though not by the presiding magistrate when he extended the application to both victim and accused. That decision of course doesn’t obviate Schembri’s media head-start; but with a fine sense of paradox you could argue that all previous media coverage is now very questionable and that it could cause far bigger problems for Schembri than any gagged eight-minute (non-)interview with the accused would have. Indeed, the accused may now legitimately scream ‘unfair hearing’ and ‘pre-trial prejudice’ where once his own media appearance would have deprived him of the right to do so. 

I’m quite sure the magistrate’s intention was to afford the accused a fair trial by jury without media intrusion. But given this modern world in which so much information and even CCTV footage are in the public domain, any order coming so late in the day is likely to be ineffectual – just like chasing your own tail. 

Which brings me to ‘juries’. That’s where Azzopardi and I part company. Unlike him, I have great faith in trial-by-jury. The system is one I’ve observed at close quarters on many occasions over the past 20 years, and I’ve been both professionally involved and a spectator.

For the most part, you’ll notice that jurors ‘get it right’. OK, sometimes the ‘correct’ verdict is somehow missed and there could also be times when bias or bigotry get in the way – but bear in mind that the same could be said of individual judges. Which is where the argument of ‘security in numbers’ – leaving your fate to nine men and women rather than to just one – gains traction.    

Jurors may walk through the door with their own set of pre-trial prejudices, but once the trial begins these tend to disappear. Of that I am certain. The complexity and detail of the evidence, combined with the solemnity and seriousness of proceedings, are all so utterly absorbing that there’s little room for anything else. The world outside the courtroom ceases to exist.

And often it emerges that those verdicts that fly in the face of public opinion (and all the pre-trial prejudices) are precisely those which confirm the system to be in rude good health and in fact working well.

My experience is that, when push comes to shove, jurors base their decisions on the evidence before them in the actual courtroom, and not on public opinion or that which has been aired superficially on a television programme they may have watched several years before. 

michelaspiteri@gmail.com

This is a Times of Malta print opinion piece