Statements under interrogation: landmark ruling has bearing on every conviction between 2010 and 2016

In a landmark ruling yesterday, a woman convicted of heroin trafficking saw her 12-month prison sentence overturned in a judgment that may very well affect every conviction based on statements released under police interrogation between 2010 and 2016.

This comes after the court of appeal yesterday held that statements released without legal assistance and drugs found by way of an irregular strip search were to be discarded as evidence.

In her 103-page long judgment on the matter, the Court of Criminal Appeal, presided by Madam Justice Consuelo Scerri Herrera, examined in detail local and EU case law dealing with the right of legal assistance a pre-trial stages and whether these were admissible as evidence.

At the time of Farrugia’s arrest, Maltese law gave an arrested person the right to a one-hour consultation with a lawyer prior to interrogation.

It was only later, in November 2016, that that right to full legal assistance, both before and during interrogation, became law.

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

The search was ordered after Rapinett and other inmates were observed behaving suspiciously immediately before the visit. Farrugia was not informed that she could refuse the search and leave.

Heroin was found hidden in Farrugia’s private parts. Farrugia was arrested and interrogated.

In her statements to police, released with no lawyer present, the woman had admitted to having brought the drugs in for Rapinett and that she had done so for the preceding 6 months.

Farrugia was subsequently charged with trafficking heroin, possession of the drug in a manner showing it was not for personal use and smuggling of the drug into prison.

She was convicted and jailed for 12 months, as well as being fined €1,200.

She had then filed an appeal arguing that the statements released without legal assistance were to be declared inadmissible as evidence and that the strip search had been “illegal and irregular.”

The Maltese Courts, taking the lead from other European courts, have consistently held that although the law did not expressly provide for it, the absence of a lawyer during interrogation amounted to a breach of their rights, making such statements inadmissible.

In this case, Madam Justice Scerri Herrera concluded that although there was no breach of fundamental human rights, the practice was not in conformity with EU Directive 2013/48 and declared the statements inadmissible.

The judgment crystallises the game-changing doctrine laid down in the Christopher Bartolo judgment which had first established the right to a lawyer at all times during police questioning.

With regards to the strip search, the court also ruled this illegal due to the fact that Farrugia had not been informed of her right to refuse and renounce to the visit instead.

Leaving aside the argument made by the appellant’s lawyers that the official had acted without the authorisation of the Prison Director and that any intimate search had to be authorised by a Magistrate, the court declared the search illegal and that consequently, any evidence derived there from was also to be treated as inadmissible.

That 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.

Yesterday’s judgement opens the floodgates as they had been opened previously for all such statements given before 2010, and echoes the more recent Christopher Bartolo judgment.

The difference is that while they have both ruled that statements post-2010 as inadmissible, the Bartolo ruling seems to be limited to that particular case. Yesterday’s judgement, however, appears to be laying a general rule of general applicability to statements between February 2010 and November 2016, when the full right to legal assistance during interrogations was finally introduced in Malta, after a long campaign by then MP Franco Debono. Debono also spearheaded the case decided yesterday.

Various Maltese and ECHR judgments, especially that of Mario Borg vs Malta, had already established a general rule as to inadmissibility of statements obtained prior to February 2010 when the one-hour consultation with a lawyer prior to interrogation was introduced.

Interesting is the fact that while statements before 2010 have been declared inadmissible since in they were in breach of the Constitution and European Convention on Fundamental Human Rights, statements obtained between February 2010 and November 2016, while not in breach of fundamental human rights, they were also ruled as inadmissible yesterday due to not having been in conformity with requirements of an EU directive, which came into force in Malta only in November 2016.

This could have consequences on all criminal proceedings instituted before November 2016 since most, if not all, criminal proceedings would involve a statement released by the suspect to the police.

Thousands of cases are believed to be implicated.

The issue has dominated the legal and judicial agenda for the past 10 years since Franco Debono, as the lawyer for Alvin Privitera, filed the first constitutional reference.

Privitera was subsequently acquitted of drug trafficking and since then thousands of people have been acquitted due to the breaches of rights.

Just as in the Privitera case, the floodgates have been opened for claims of inadmissibility of all statements given under such circumstances before February 2010, yesterday’s judgment could open floodgates for inadmissibility of police statements between 2010 and 2016 as it was only after November 2016 that Malta became fully compliant with EU law by allowing legal assistance during police interrogations.

Lawyers Franco Debono and Anita Giordmaina were counsel to the appellant in yesterday’s case.