The launch of a bill aimed at strengthening procedural rights by granting suspects the right to a lawyer throughout police interrogations will speed up criminal proceedings, Law Commissioner and criminal lawyer Franco Debono believes.
The launch of the Bill, entitled An Act to provide for legal assistance during detention and other rights for arrested persons, was announced by Justice Minister Owen Bonnici on Wednesday.
It is the transposition of a European directive on having access to a lawyer during criminal procedures and during arrest warrant procedures. The Bill strengthens social justice, and is expected to be one of the first bills discussed in Parliament once the autumn session commences.
Speaking yesterday with The Malta Independent on Sunday, Dr Debono spoke of the role of the lawyer once the new bill comes into effect:
“This constitutes a radical change, especially for lawyers, who will have to spend more time at police headquarters and police stations. More importantly, it will help eliminate allegations against police officers.
“Cases will be decided in a much shorter time since lawyers wouldn’t need to wait for court proceedings to know the essentials of the case. They would have participated fully at the investigation stage — until just six years ago, the lawyers were completely excluded from this process.”
Dr Debono said that this right was introduced in the United States of America (USA) in 1966, so this year is its 50th anniversary.
Comparing this legislation with the rest of the Western world, he said: “This is the final chapter of a long story which brings us in line not just with EU directives and European Court of Human Rights (ECtHR) judgments, but also with the rest of the Western world.
“Up until 10 February 2010, Malta was the only country in Europe not to allow any kind of legal assistance to arrested persons, since a law unanimously approved by Parliament in 2002 allowing suspects to consult a lawyer for an hour prior to interrogation was never put into force.
“The law only came into force a few days after I abstained from a minor Parliamentary vote as a sign of protest over this issue.
“On 8 November 2011 I filed a private member’s motion outlining a holistic justice reform including the right to legal assistance during interrogation and the introduction of the rule of disclosure since the EU was concurrently preparing a directive in that sense.”
Turning to how victims of crimes may be affected, he said: “Victims’ rights have been strengthened by the Reparative Justice Act, which even contemplates accused-victim mediation, and other recent amendments. Victims have especially been assisted by a recent large-scale investment in the Forensic Laboratory and in the Police Force in general.”
Asked about people’s experience when arguing that their rights have been breached by not being allowed to have lawyers present throughout interrogations, Dr Debono said:
“The floodgates were opened after I filed the first constitutional referral in the Alvin Privitera case in 2010, where for the first time in the Maltese courts’ history, I had asked to declare a statement obtained without legal assistance inadmissible.
“Since then, hundreds if not thousands of statements have been discarded and some cases, including trials by jury, are pending due to the same reasons. A number of accused have also been acquitted on the same grounds, and a number of requests for the re-opening of decided cases are pending before the courts.”
Turning to whether an increase of people claiming their rights were breached due to lack of access to a lawyer throughout interrogations is to be expected, he said:
“On 9 April 2015, the European Court of Human Rights gave a judgment in AT v Luxembourg, which could be interpreted to mean that unless a lawyer had been present during interrogations, the statement could somehow be vitiated even though there was legal assistance prior to the interrogation. In this case, new floodgates would be opened.
“The judgment, which will become final unless referred to the Grand Chamber, speaks of finding a violation of Article 6 of the European Convention on Human Rights (ECHR) and develops the principles established in Salduz v Turkey.”