A convicted heroin trafficker was spared a 12-month term behind bars after a court of appeal held that statements released without legal assistance and drugs found by way of an irregular strip search were to be discarded as evidence.

Claire Farrugia, 39, had been strip-searched when visiting a female friend who was serving time at the Corradino Correctional Facility.

In November 2011, prison officers had grown suspicious and told the woman she would be strip searched, without informing her that she had the right to refuse and be denied entry into the prison.

Halfway through the search, the woman had apparently got cold feet and had asked for permission to leave, but this was denied and the search proceeded.

The search revealed three sachets of heroin which the woman was hiding in her private parts.

She was arrested and interrogated and spoke with police after refusing the assistance of a lawyer.

Four months later, in March 2012, the woman released a second statement, again without legal assistance, admitting that she had been smuggling drugs to her friend in jail over the preceding six-month period.

The woman was charged with heroin trafficking, possession of the drug that was not for personal use and smuggling of the drug into prison.

She was convicted and sentenced to a 12-month jail term and a €1,200 fine, but appealed that sentence.

Ms Farrugia argued that her statements, released without legal assistance, were to be declared inadmissible as evidence and that the strip search had been “illegal and irregular”.

The Court of Criminal Appeal, presided over by Madam Justice Consuelo Scerri Herrera, in a 103-page long judgment, delved into local and EU case law concerning the right of legal assistance in the pre-trial stage, in determining whether or not the statements released by the appellant were to stand as evidence against her.

At the time the incident took place, Maltese law allowed a person under arrest to consult with a lawyer for one hour before being interrogated. This right was only extended to allow suspects to have full legal assistance during an interrogation in November 2016.

Nonetheless, our Courts, following in the footsteps of their European counterparts, have consistently held that even though the law did not expressly provide for it, the fact that an arrested person was not assisted by a lawyer during interrogation, amounted to a breach of rights and rendered those statements inadmissible.

Madam Justice Scerri Herrera found that rather than a breach of fundamental human rights,  there had been a non-observance of EU Directive 2013/48 which rendered the statements inadmissible.

Her decision might lay down a rule of general applicability to statements released in this manner between 2010 and 2016, when full legal assistance in the pre-arraignment phase was introduced under Maltese law.

As for the strip search, the court observed that this had been illegal since Ms Farrugia had not been informed by the female prison official that she had a right to refuse and renounce the prison visit instead.

Without delving further into the issues raised by the appellant’s lawyers, namely that the official had acted without authorisation by the Prison Director and that any intimate search was always to be authorized by a Magistrate, the court declared that the search had been illegal and that consequently, any evidence derived therefrom was to be inadmissible.

This meant that the rest of the evidence put forward by the prosecution was not sufficient to prove its case beyond reasonable doubt, the court concluded, thereby upholding the appeal and acquitting the appellant of all accusations.

Lawyers Franco Debono and Anita Giordmaina were counsel to the appellant.

In comments after the judgment, Dr Debono expressed satisfaction at the way the case had panned out. 

"This important judgment has wide-ranging implications on each and every police statement obtained prior to November 2016, when Malta finally extended the right to legal assistance for arrested persons during interrogations," Dr Debono said. 

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.