Magistrate Joe Mifsud has cleared three men of illegally detaining journalists after a tense press conference at Castille just under a year ago, in a judgment slamming the police investigation and calling for the introduction of press protocols.
Jody Pisani, Mark Gauci and Emanuel McKay were accused of holding Monique Agius, Miguela Xuereb, Julian Bonnici and Paul Caruana Galizia against their will inside the Auberge de Castille on 29 November at around 3am.
The journalists were covering an impromptu press conference at around 3am during the extraordinary and turbulent events at the end of former premier Joseph Muscat’s tenure. For several minutes, the media were not allowed to leave Castille by what appeared to be a group of plainclothes security guards. The incident was captured on mobile phone footage.
Magistrate Mifsud, himself a former journalist, was none too impressed with the way the case was handled by the police. “The court makes it clear from the outset that it is not at all content with the way this case was investigated. The incident occurred on 29 November 2019, the police report was entered on 2 December 2019 and the charges were issued on 14 July 2020.
The police had over eight months to investigate, gather the testimony and documents and present a complete case before the court. Nobody should expect the court to fix other people’s shortcomings. The court decides its cases on the basis of the evidence brought before it and not what was said outside the halls, in some newspaper report, on a portal or social media.”
The court observed that journalists Monique Agius and Miguela Xuereb had filed a police report, which however was not exhibited. “The prosecution did not exhibit any report entered in the PIRS system if this report exists.”
The other two persons mentioned in the charges, Paul Caruana Galizia and Julian Bonnici had not made a formal police report, said the magistrate. “Reports to the police are not done by proxy,” Mifsud commented, observing that the investigator was supposed to speak to the two other persons and take down their versions of events.
Inspector Daryl Borg had also spoken to Mark Gauci, Jody Pisani and Emanuel McKay and taken a deposition from them. They had been recognised from footage provided by one of the journalists. There were at least nine persons in the footage, but the court noted that the prosecution had been selective in who to charge, saying that there had been “no attempt” to identify everyone.
The magistrate said he saw a large number of people in the footage which contradicted the Inspector’s account. Paul Caruana Galizia had also indicated at least another four besides the accused to the Commissioner for Standards, noted the court.
During this case, it emerged that the person investigating this case did not take the accounts of those who organised the press conference and there was no attempt to find out who had closed the door. The prosecution had rested solely on the video presented by one of the complainants, said the magistrate, pointing out that the police had not questioned the estimated “50-100” other journalists present at the press conference.
The magistrate criticised the lack of communication by the press conference’s organisers with the journalists.
“One must distinguish between the person reporting and the protagonist in the event,” said Mifsud, expressing “great sympathy” to Paul Caruana Galizia over the loss of his mother and who had every interest in knowing the last developments of the investigation more than to report on the same.
Fatigue and tension also played a part in the circumstances, said the court, pointing out that Monique Agius had testified to having been outside Castille for 15 hours by the time the incident took place.
The magistrate said that it had not emerged what the accused were doing there and who had sent them, adding that employees of an office and service providers should wear name tags in such activities.
Mifsud called for clear and formal protocols for government activities, saying that if they existed they were not exhibited in this case. He also called for collaboration between the IGM, the Commissioner for Standards in Public Life, the DOI and the Communications office of the OPM to prepare protocols for various activities.
Training for handling tense situations is needed, said the magistrate, but said that none of the testifying journalists had “basic training for various situations whilst reporting.” Mifsud noted that University and MCAST courses in journalism did not appear to prepare their graduates to face real situations.
The IGM should step in to offer practical training to journalists covering different beats like court, incidents, major crimes and financial crimes, opined the magistrate.
The magistrate concluded that the identity of the person who ordered the closure of the door had not been established. There was more than one exit. The control of the door was from the outside, not the inside.
There was no force used against the journalists and they had been part of a “free for all” which was not to be expected in any building, be it governmental or private. “When a person is invited into or works inside a building, that person should not expect to take it over.”
“It cannot be said that Monique Agius, Miguela Xuereb, Julian Bonnici and Paul Caruana Galizia went into the premises in question against their will. Besides this, from the testimony given, it cannot be said that there was an arrest, detention or illegal arrest…”
The accused were cleared.
Lawyer Matthew Xuereb was defence counsel, assisted by lawyers Charlon Gouder and Ramona Attard.
IGM statement
The Institute of Maltese Journalists (IĠM) took note of the decision handed down by Magistrate Joseph Mifsud. "In it the Court found that the Police had not provided enough evidence to prove that journalists had been held against their will in a room in the Office of the Prime Minister."
"In the decision, the court almost apologetically, clears the accused after it emphatically expressed its displeasure at the way the case was investigated by the police. 'The Court would like to make it clear from the outset that it is completely not happy with the way the investigations were conducted in this case'."
On the 29th November 2019 a number of journalists had not been permitted to leave the room in the OPM. While noting the decision of the court, the IĠM feels that it can confidently support the journalists concerned and it is borne out by audio-visual evidence.
"The court condemned the following facts: that the police reports made in real time ('a tempo vergine') by the journalists were not presented to Court and further reports were not investigated; The court said that the footage of the scene contradicted the testimony; The police made no attempt to see who closed the door and if the door was locked; The police made no attempt to seek the version of the organisers of the press conference."
The IĠM said that it sees these points as a clear indication that the truth in this matter was not genuinely sought out. "Absence of evidence is not evidence of absence of unlawful arrest and, the evidence was absent because, as the court said, the police failed to do their duty. This is a serious failure and another chink in the armour of the rule of law which law abiding journalists come to expect."
"Finally, the IĠM would like to encourage the OPM to note the stringent series of recommendations which could have been undertaken to avoid this shameful episode. The IĠM reiterates its willingness to help and co-operate with the Communications Department in the OPM, the Department of Information and the Commissioner for Public Standards and as suggested by the court decision. If these recommendations are taken on board, such obstacles in the path of information will be mitigated."