Issue link: https://maltatoday.uberflip.com/i/540322
maltatoday, SUNDAY, 12 JULY 2015 10 News THE introduction of the right of disclosure of evidence against sus- pects accused of crimes, has some- what 'disarmed' law enforcement agencies by making it harder for them to "bluff their case" during in- terrogations. One year on since the long over- due legislation levelled the playing field by forcing the prosecution to lay all its cards on the table, if re- quested by the defence, those at the coalface of the criminal justice sys- tem say the disclosure of evidence has allowed them to give clients better advice, but that the law needs fine-tuning. Universally welcomed by profes- sionals whom MaltaToday spoke to, legal practitioners however say that practical problems still need addressing. Criminal lawyer Stephen Tonna Lowell, a former prosecutor him- self, says the measure has helped dissipate the clouds of suspicion and mystery which often envelop criminal proceedings. "In most cases where the right has been availed of, the relationship between the parties had improved," Tonna Lowell said. In cases that are unwinnable, where the prosecution has overwhelming evidence of the guilt of the accused, the accused's lawyer could potentially advise the accused to file an early guilty plea, shortening proceedings and even winning a reduction in punishment for the accused. Stefano Filletti, a criminal lawyer and a lecturer at the University of Malta, says the right was a natural step following the, also overdue, introduction of the law giving sus- pects the right to have a lawyer with them during questioning. "It is intrinsically linked to the right to legal advice prior to or dur- ing an interrogation… it would be pointless to be allowed to seek legal advice if the legal advisor is kept in the dark regarding the facts. How can an attorney ever be in a position to furnish pertinent advice unless he is briefed, not only on the facts of the case but also on the evidence collected by the police – which could be both incriminating and exculpatory?" And lawyer Jason Grima says it has made it harder for the police to "bluff their case" during inter- rogations by claiming to have evi- dence they don't have – a practice which, the lawyer said, had often been adopted in the past to obtain a confession. Half-baked right? While new to the Maltese legal system, the right of disclosure is an obligation at EU level, under arti- cle 6(1) of the European Conven- tion on Human Rights. The right, under Maltese law, has certainly enjoyed a long gesta- tion. As far back as 2010 former Nationalist MP Franco Debono repeatedly reminded the House of the need for it, eventually tabling a private member's motion which he had presented to Parliament in November 2011. "It pains me to say that it took this Parliament seven years and my ab- stention from a vote to introduce the right to have a lawyer present [during questioning]," he told the House in May 2012. "We adopted parts of English law and not oth- ers and so the resulting right is not sufficiently strong... there is the right of disclosure, among others, which remains to be added [to the statute]." In fact, criminal defence lawyers are also quick to express some res- ervations. Such as Joe Giglio, who was more measured in his reply. "It is a positive step. However, personally I still think that we have not really grasped its impact. Pros- ecutors are rigid in its application and do their utmost to restrict its application. The wording of the law does not really help, giving rise to problems of interpretation. My feeling is that, as yet, it is half- baked." Even lawyer Giannella de Marco believes the law is still in an em- bryonic stage, and that its adop- tion has started to prompt a "cul- tural shift" in the police force. "Should the prosecution be forthcoming with disclosure, or should this be triggered only at the request of the defence? After dis- closure is made, should the pros- ecution then tell the defence about any new evidence that comes to their knowledge... or is the defence to keep asking till the end of the proceedings whether any new 'ma- terial evidence' has come to light?" De Marco also raises questions about the type of evidence that can be disclosed, since not all evidence can be submitted in court as legally valid. "Should evidence that does not stand the legal rules of evi- dence in court still be forwarded as information to the defence?" Then again, even though now more information is being dis- closed by the police prior to inter- rogation, Stefano Filletti says that it is still short of the full disclosure adopted in other jurisdictions. "[In these countries] one would have direct access to documents, reports and all evidence collected during an investigation." These thoughts are echoed by Tonna Lowell, who describes the manner in which the right has been translated into law as "very Spartan", leaving much to the imagination. "I believe some guidelines should be introduced, particularly to the meaning of 'material evidence'. There is disagreement as to what this means. "But the most important point to be addressed is that failure on the part of the prosecution to respect this right, does not have any conse- quence. This should be addressed: a right without redress is ineffective and the law should not rely on the respective parties' good faith and relations." Legal wish-list De Marco points out that the ex- ceptions to the rule need to be re- visited. The law says that disclosure can be refused if it may lead to a se- rious threat to life, or prejudice an ongoing investigation. "But it does not mention anything about when this threat no longer exists," she says. "The law also of- fers no sanction against anyone who does not comply with the law, or a remedy to the person who was denied," she says, echoing Tonna Lowell. Filletti says that even the right to legal advice should be improved, by allowing suspects the right for legal advice during, rather than before in- terrogation. Grima in fact suggests that without disclosure, the right to legal counsel is ineffective. "How can a lawyer give advice when he doesn't know what evidence, for and against his client, is in the hands of the police? The lawyer could either refuse to advise, or base it on the little infor- mation his own client could pass on. It was a dangerous situation which, in my opinion violated the right to a fair trial." But the entitlement to disclosure of relevant evidence is not an absolute right either, and must also contend with competing interests of national security or the need to protect wit- nesses at risk of reprisals. For proportionality to be achieved, Grima suggests that a balance be struck between the pos- itive effects of non-disclosure for the accused, and the negative im- pact it has on that person's ability to respond to the case against him. "The measures must be strictly necessary and weighed against the rights of the party involved." Grima suggests the next step should be the inclusion in the Criminal Code of the now widely accepted practice of awarding a reduction in punishment in ex- change for an early admission of guilt – but as a right of the accused, and not a discretionary gesture of goodwill by the court. But as de Marco points out, dis- closure introduces a sense of fair- ness in the judicial system, but that still needs much fine-tuning. "As it stands, a lot is still dependent on the intelligence, honesty and good sense of the prosecution." Questions were also sent to the Police, but official comments were not received by the time of going to print. magius@mediatoday.com.mt Disclosure of evidence kills 'police bluff' Just over a year since persons suspected of a crime were given the right to access the evidence against them, top criminal lawyers tell MATTHEW AGIUS the law still needs fine- tuning, to put the lawyers at par with prosecutors The right to legal advice should be improved, by allowing suspects the right for legal advice during, rather than before interrogation Joe Giglio: It is a positive step, but the wording is problematical Giannella de Marco: the law is still embryonic