The Constitutional Court has overturned a decision by a judge which had ordered the police to hand data extracted from Keith Schembri’s phones to Yorgen Fenech’s lawyers.

The State Advocate had filed an appeal against the decision handed down last November by Mr Justice Lawrence Mintoff.

Fenech’s lawyers had argued that the data taken from Keith Schembri’s devices was “essential” to their case, even if it did not come from the phone that the former chief of staff had “lost” before his arrest in 2019.

The lawyers had made this argument during proceedings in which Fenech is seeking the removal of lead investigator Keith Arnaud from the Daphne Caruana Galizia murder investigation. Fenech is awaiting trial over the journalist’s murder, in which he is accused of being a mastermind.

In the appeal, the State Advocate ha argued that by handing over such data, the ongoing police investigations could be jeopardised. The data is confidential since it forms part of a magisterial inquiry.

The Constitutional Court, presided over by Chief Justice Mark Chetcuti and judges Giannino Caruana Demajo and Anthony Ellul, said that, while it agreed that the judiciary enjoys wide discretion to ensure that human rights are safeguarded, all parties in a lawsuit are to have legal certainty and equality of arms.

The court’s previous interpretation was “manifestly not compatible to what the law itself said,” they said.

The Constitutional Court noted that the production of any records from an ongoing magisterial inquiry is prohibited by law.

Fenech’s lawyers, the court noted, had also failed to indicate exactly how the data was relevant and “vital” to their case.

Such requests could not be used as a “fishing expedition,” the court said,

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri appeared for Fenech. Lawyers Maurizio Cordina and Miguel Degabriele appeared for the respondents.