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Matthew Vella and Karl Schembri
Government is planning to impose tighter restrictions on the publication of the names of court witnesses and the accused in its White Paper on justice reforms.
The plans unveiled by government earlier this year would effectively retract the right of the press to report a wider range of court cases.
The White Paper ‘Towards a Better and More Expeditious Administration of Justice’ published by the Justice and Home Affairs Ministry goes even further as it proposes that the law itself should indicate the cases where all the names should be divulged, instead of specifying the exceptions when names should be withheld, as well as establishing the penalties for breaching court bans.
The press seems to be the target of the reforms seeking a wider ban on the publication of the names of the accused, in order that they may continue to be presumed innocent until proven guilty “after due process” and not through media publicity.
Although the publication of names would remain a basic principle during the compilation of evidence, the proposed reforms seek a wider application of court bans on the publication of names given that the White Paper argues that the criminal code “envisages limited cases for the prohibition of the publication of name”.
The White Paper says that there are cases, apart from those where minors are involved, where it is justified that the court should prohibit the publication and broadcasting not only of the names of the accused persons but also of their photographs and footage when entering the court buildings.
The document argues that accused persons in yet undecided cases risk losing their job, or in the case of a profession, a reduction in their client base – a clause that has been interpreted as placing businesspeople facing criminal charges in special consideration within the proposed reforms.
“Nor is it a rare case in this country that there be also domestic consequences, with legal separations and inter-personal difficulties,” the White Paper reads, stating that the divulging of the name of the accused person and other people involved means witnesses and victims “find themselves on everybody’s tongue with the consequence that they go through a further abuse of malicious gossip, calumnious accusations and sometimes also moral threats without there even being a court judgement against them. In these cases delay means a long road of moral torture to which there exists no remedy.”
Additionally, it proposes that such court bans on the names of victims of offences and of witnesses, but not of accused persons who are found guilty, remain possible even after the final judgement is given, except in the case of trials by jury.
Institute’s thumbs up?
The Chairman of the Malta Institute of Journalists, Malcolm J Naudi, expressed his conviction that police investigations rarely led to capricious arraignments.
“One can be sure that whenever the police are pressing criminal proceedings against anybody they do not press charges capriciously,” Naudi told MaltaToday. “If one had to look at court statistics, the percentage of those acquitted on some technicality is very low. It is clear from statistics that the police investigate well and that when they press charges there is a valid reason.”
In line with the White Paper, Naudi said the proposed reform would ultimately divest the judiciary of their discretion when it comes to deciding on the prohibition of names of witnesses and accused in court.
“I believe that any law dealing with such court bans should list the instances where people should not be named, instead of it being left to the judiciary’s discretion to decide whether or not to prohibit the publication of the names. It so happens at times that a certain lawyer can yield a court ban on the publication of their client’s name, whilst those that resort to legal assistance fail to get protection from having their names published,” Naudi said, who agrees that a list of cases be specified to determine when a court ban can be enforced.
Asked which cases he believed to be fit for a court ban, Naudi said this would be a matter which had to be seen following the publication of the draft law.
“There are cases where it is acceptable that people should not be named, such as in the case of minors or relatives of people involved in rape and grave sexual offences,” Naudi said.
On the other hand, Naudi believes that “enemies of the people” such as drug traffickers and those accused of corruption should be named.
“It is the media’s duty to report cases of accused people and to report about who is convicted or acquitted. The public has the right to know how the police and justice are working. There should not be a trial by the media, but like everyone else, the media should be free to enter the courtrooms and see what is going on.”
Although Naudi was critical of the proposal to ban photographs of people entering courtrooms, he stopped short of challenging the proposed court ban:
“I think there is a grey area here. If someone is entering a courtroom, they are in a public place outside the courts. Photographers should have the right to take a picture.
“If there is a ban from the court we would have to stand by it,” Naudi said, who believes such a ban could serve to protect journalists. “There have been instances in which members of the family of the accused attacked photographers. We have to protect the members of the media.”
Banning the ban
The proposal for a wider application of the court ban is believed will scorn current press freedoms in Malta, still not up to the standard of the Western European press.
The judiciary’s views about press freedom and democracy have been under continuous criticism by members of the press and an action committee of journalists and editors will be meeting tomorrow to discuss the implications of the proposed wider-ranging restrictions.
According to Chapter 9 Article 531 of the Criminal Code, the court can decide to hold its hearings behind closed doors if it believes that testimonies could offend public sentiment or cause a scandal. However this remains a subjective standard, as the law stops short of gauging public sentiment.
In November 2003, the lawyers of two priests and a religious brother charged with sexually abusing 11 boys at St Joseph’s Institute asked Magistrate Saviour Demicoli to order a total ban on the case, with neither the prosecution nor the victims’ lawyer opposing the plea. Only one of the boys was a minor by the time the religious had been charged.
The people inside the courtroom, including journalists, were immediately ordered to leave and the proceedings continued behind closed doors.
The ban means that the three accused religious who had been publicly named in 2003 when the St Joseph’s Institute child abuse scandal broke could not be mentioned by name from then on in the press. Nor can the media broadcast any footage or publish images of the accused any longer. Their case is still ongoing.
Time and again the Maltese courts have issued bans on the publication of the names of individuals charged with rape or paedophilia to protect young witnesses, extending the ban to protect the alleged aggressors. In the above mentioned case, however, only one of the eleven alleged victims was a minor, so a ban on testimonies would have been enough to protect him and other witnesses.
Defence lawyer Dr Emanuel Mallia had argued the ban should serve “to prevent further damage with pre-trial prejudicial publicity and for the best administration of justice”, although the public can already access reports published earlier bearing all the details of the case.
In another ruling of the Constitutional Court regarding two judges’ presumption of innocence in the bribery scandal that broke out in 2002, the court ruled that Prime Minister Eddie Fenech Adami had not violated the judges’ right to a fundamental right to trial by an independent and impartial court.
Fenech Adami had been found to have considered the judges guilty when in a press conference he had said that “it became known” and “it resulted (to the police)” that former Chief Justice Noel Arrigo and Judge Patrick Vella had received bribes, ignoring their right to be presumed innocent.
The ruling meant that Fenech Adami had not breached the judges’ right to their presumption of innocence because he named them, but because his wording implied they were guilty, meaning the solution for the press often lies in printing the ever-handy “alleged” word before every alleged crime the alleged criminals allegedly committed.
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