Issue link: https://maltatoday.uberflip.com/i/188841
7 News maltatoday, WEDNESDAY, 9 OCTOBER 2013 When is entrapment not entrapment? RAPHAEL VASSALLO NEWS that the police 'foiled' a spectacular heist attempt in Swieqi – by discovering a tunnel under construction leading towards an HSBC branch – has raised questions in legal circles over the use of the word 'entrapment' to explain why the police stopped short of trying to nab the would-be bank robbers in the act. On Sunday, the police announced the discovery of a 15-metre underground tunnel in a garage in Swieqi which was intended to reach the vaults of an HSBC branch in Triq Sant'Andrija, Swieqi. No arrests have since been made: raising the question of why the police chose to announce their discovery so prematurely, when an alternative course of action would have been to wait for the robbers to continue digging in order to catch them red-handed. The Times yesterday quoted a police source as explaining that this would not have been legally permissible, as it would have amounted to a case of 'entrapment'. Yet the definition of the word as supplied by past court rulings appears to suggest otherwise: not only does 'entrapment' require the active collusion of the police itself in enticing people to break the law… but the Malta police have often employed the tactic of monitoring suspicious activity in order to catch criminals in the act of a committing a crime, without being accused of 'entrapment'. This in turn suggests that, applying the definition of 'entrapment' supplied by the police on this occasion, the Malta police force has been guilty of entrapment on a number of high-profile criminal cases, including the successful prosecution of drug traffickers and judges accused of bribery (see box). ]SUBHEAD[ What is entrapment? But what is entrapment, and how does it fit within the local legal scenario? A loose definition of entrapment would involve scenarios in which law enforcement officers use coercion or other overbearing tactics to induce someone to commit a crime; after which the same officers would arrest the person for the same crime they had instigated themselves. In most jurisdictions, a proven Entrapment? Not quite… Among the high-profile cases that would be considered 'entrapment', according to the definition of the word as supplied by the police in connection with this week's planned Swieqi heist, are two which rocked Malta in their day. Zeppi l-Hafi/Clarissa Calleja (1993) In 2001, a criminal court heard testimony by assistant commissioner Michael Cassar about a complex surveillance operation, mounted by the police in 1993, resulting in the arrest of Joseph Fenech (aka Zeppi l-Hafi) and Clarissa Calleja of possession of 1kg of cocaine. This arrest would pave the way for the subsequent prosecution of Meinrad Calleja over conspiracy to import 6kg of cocaine before November 1993. In his testimony, Cassar explained how the police had acquired taped recordings of telephone conversions revealing details of the planned criminal activity; and that a 'shadowing operation' was ordered with the specific aim to catch the suspects in the act of committing the crime. On the basis of the information acquired by phone tapping and other acts of surveillance, the police eventually arrested Joseph Fenech and Clarissa Calleja in Sliema in December 1993. This is how the events were reconstructed in court in 2001: "...the police had information that a beige Ford Fiesta was parked near the Café Roma at Ghar il-Lenbi Street, Sliema. Clarissa Calleja, Meinrad's sister, passed something to Joseph Fenech. "Clarissa got into a rented car driven by Fenech with the cocaine and they drove to a place to conclude what was supposed to be the drug deal. "But police carrying out a surveillance operation intervened before the deal was concluded and managed to foil the deal." According to the definition of 'entrapment' supplied today, the above arrest would have been considered illegal. Noel Arrigo/Patrick Vella (2001) Former Chief Justice Noel Arrigo and judge Patrick Vella were convicted in 2011 on charges of bribery, in a case that electrified Malta and caused shockwaves that still reverberate throughout the justice system. Once again, both arrests were made possible by information about a crime that had not yet been concluded at the time the information reached the police. It emerged in court that both former judges had been under surveillance after reports of suspicious contacts with the late Mario Camilleri (aka L-Imniehru), who had been convicted on drug trafficking charges. Arrigo and Vella were two of the three judges hearing Camilleri's appeal. According to the prosecution they had been approached with a bribe (which they accepted) to reduce Camilleri's sentence on appeal by four years. Testifying in court, then acting head of the security service, Herbert Agius, revealed that the security service had recorded phone interceptions which were handed over to the Police Commissioner. The entire case, he claimed, had come to light from telephone conversations between the drug trafficker, intermediaries while they were discussing the details of the proposed bribery. Nonetheless the arrests of the two judges were affected after the sentence was effectively reduced on appeal in 2001: making this a scenario that would neatly fit the description of 'entrapment' supplied today. case of entrapment would be considered as grounds to acquit the accused, and in some jurisdictions the same act may entail criminal charges for the law enforcement officers involved. Malta is an exception in both senses of the word; past judgments (notably The Republic of Malta versus Eugeneio Gaffarena, 1996) have established that the act of entrapment alone does not absolve the would-be criminal of all criminal liability for his own actions; and while Maltese law does imply a degree of culpability for the police who resorted to this tactic, such culpability does not extend to criminal sanctions. In practice, what tends to happen is that if the defence successful argues a case of entrapment, it will most likely result in a reduced sentence, coupled with admonishment of the police officers concerned. One example of 'entrapment' in a local context concerned the arrest of a prostitute in Gzira by two plainclothes police officers who presented themselves as clients. The accused was acquitted on the grounds that the 'crime' (i.e., soliciting) had been committed by the police officers who requested sex against payment, not by the prostitute who accepted. The police officers in question were severely reprimanded by the magistrate, but no criminal action was taken against them. Another problem with the legal definition of 'entrapment' supplied in connection with the Swieqi tunnel-heist, is that for the claim to be proven in court it would have to be established that the police knew the On Sunday, the police announced the discovery of a 15-metre underground tunnel in a garage in Swieqi which was intended to reach the vaults of an HSBC branch in Triq Sant'Andrija, Swieqi identities of the would-be criminals, and actually 'coerced' (or somehow persuaded) these people to commit the crime in question. Such considerations clearly do not apply to a scenario in which the identity of the would-be robbers remains unknown to this day.