The inquiry looking into former attorney at the AG's office Charles Mercieca's move to Yogern Fenech's defence team has concluded. The situation has resulted in a number of safeguards being proposed, as the board believes that the existing ones are not sufficient.

The Minister for Justice Edward Zammit Lewis had appointed Chief Justice Emeritus Joseph Azzopardi to lead an independent inquiry into lawyer Charles Mercieca, who left the Attorney General's Office and a day later joined Yorgen Fenech's defence team.

Mercieca's move from the AG to Fenech's defence team has raised many questions and concerns.

The aim of the inquiry was to determine:

1) where the compilation of evidence of Yorgen Fenech was held at the Office of the AG and what systems are in place relative to restricting the access to the documentation;

2) To determine where the compilation and any copies made therefrom were kept and to identify the public prosecutors at the said office who had access to this;

3) To determine with whom discussions of the compilation were held and whether Mercieca was ever involved in such discussions or if he was present for such discussions;

4) And to establish whether the contract of employment of public prosecutors, conditions of employment and the Code of Ethics applicable to public prosecutors at the AG's office provide sufficient safeguards of independence for the public prosecutors.

The Court heard from both AG Peter Grech and Assistant AG Philip Galea Farrugia under oath.

Mercieca was employed as a trainee on 30 August 2018 and eventually a lawyer on 2 January 2020.

Report

On 30 April 2020, he informed the AG verbally that he intended to leave the office, the report read. "Dr Grech, after asking him whether he had any problems at work got the impression that Mercieca was in a hurry to leave." He submitted the resignation letter on 4 May.

Dr Galea Farrugia said he had chosen Dr Nadia Attard to assist him in the proceedings against the Degiorgios and Vince Muscat, who stand accused of murdering Daphne Caruana Galizia.

The inquiry document notes that Galea Farrugia kept the records of the case under lock and key and that Dr Attard was given a copy of the verbali and transcripts of the witnesses in the case. As for the compilation of evidence against Yorgen Fenech, "he was the one person prosecuting and up to that point did not involve any other lawyer at the office - very recently he assigned Dr Attard to assist him. Dr Galea Farrugia said he did not compile any notes on strategy in these cases since they were still at compilation stage," the report read.

Attard, on oath, confirmed that she had a copy of court proceedings against the Degiorgios and Muscat, the report read.

She said that she did not have a copy of court proceedings with regards to Fenech.

Attard and Mercieca along with two other lawyers had their office in the same room, the report reads, "but Attard insists that she did not duscuss these cases with any other lawyer. Mercieca did not divulge his intention to leave the AG's office. However she did suspect that he would leave soon from his attitude."

Lawyers Grech and Galea Farrugia asked to again testify to say that there was another copy of the Court proceedings in the Registry of the Office, "but this is always attended to in the sense that the room was never left open without any person in attendance. Therefore no person could go and inspect the records without them knowing and it appeared that Mercieca did not do so."

The inquiry board said it heard Mercieca under oath and he said that it was always his intention to leave the Office at the earliest opportunity.

"He was approached among others by Gianluca Caruana Curran (one of Yorgen Fenech's legal defence team) who told him that since he practiced mostly in the financial services sector, he would assign him any criminal work in his firm since naturally Mercieca had practiced in this field at the AG's office. He (Mercieca) insists that he did not involve himself in any of the proceedings regarding the homicide of Caruana Galizia (while at the AG's Office) and had not searched any papers in the Office (of the AG) in this regard."

Mercieca left the office on 5 May.

Beyond the scope of the inquiry

It is pertinent to note that there was one issue raised by the board that could raise eyebrows, as it was outside of the scope of the inquiry. The report reads that from a legal point of view on reviewing the contracts of employment referred to, "it is clear that the lawyer employed at the AG's office cannot do any private work. However, there is no clause somehow binding the lawyer after he leaves the office. Consequently the issue remains whether the lawyer concerned breaks the criminal code or the code of ethics binding all lawyers. These are clearly matters beyond the scope of the enquiry."

Proposed safeguards

Turning to the questions posed by the terms of reference, "it does not appear that Mercieca ever consulted with the file (regarding Fenech) since he was not involved in the relative prosecution. In any case since these were copies of the Court proceedings there was not anything 'secret' in the file since of course the original at the Court's Registry is public. Attard's copy relates to the other compilation, that is against the Degiorgios and Muscat. There were no relative discussions at the Office including Mercieca."

As for whether the contract of employment of lawyers at the AG's Office and the Code of Ethics applicable provide sufficient safeguards of independence of public prosecutors, the report read that "the Board does not think that there are sufficient safeguards the image of correctness (sic) of the Office and the lawyers who leave the Office are serving a number of years at that office. The board recommends that the lawyers employed be barred for appearing for persons or companies against whom civil or criminal proceedings were instituted during the period in which they were lawyers working at the Office."

Full report here