Updated | Bill to propose legal assistance during police interrogations

Justice Minister Owen Bonnici has announced a draft bill, aiming to enshrine the right of a person accused to have a lawyer present during police questioning, in law.

The bill, which will be the first item to be discussed when Parliament reopens next month, is aimed at protecting the citizen "at the moment when they are at their most vulnerable- at the time of arrest," Bonnici said.

Although it implements EU directive 2013/48/EU, the minister stressed that the draft had gone beyond the bare minimum, also introducing a number of reforms suggested in the so-called "Bonello Report", issued by the Commission for Holistic Justice Reform in 2013. The bill is being touted as a measure balancing the rights of the accused with the rights of the public to be protected from criminals. 

Attorney General Peter Grech said the bill brings Maltese law "completely into line with the applicable EU directives." The most radical change, the AG said, was the introduction of the right to be assisted by a lawyer during police questioning. Presently, the law gives the right to consult with a lawyer before questioning, but not during. This right will remain.

Under the new bill, if a person renounces to his right to this assistance, this renunciation must be recorded, together with the circumstances in which the choice was made. 

After questioning, the lawyer is then allowed to make his own questions and observations, Grech explained. "The person accused needs guarantees that their rights are being protected, but this must be balanced with the need of the police and the inquiring magistrate to carry out their work effectively."

Bonnici described the measure as "a link in the necklace of several improvements to Maltese criminal law," mentioning the rule of disclosure and other laws that strengthen the rights of victims. "They are part of a plan, one strengthening the other. This is the next step."

The measure implements EU law into the domestic criminal justice system. “The European Convention is a living document” added Grech, “that is constantly being developed by the courts. It is not something written in stone, it evolves.”

Lawyers would be entitled to participate in an effective manner in the questioning but not to interrupt, the Minister explained, however - prompting questions about how it would be made to work in practise. “How this is to be determined on the ground is something that will be determined by experience, the care of the police and the lawyers.”

The new rights are not going to affect the rule which requires a person to be arraigned before a magistrate within 48 hours of arrest, Bonnici assured those present. “We have added rights, not diminished them. The 48 hour rule remains untouched.”

When it was suggested that this new measure could be construed as a tacit admission that the system had breached human rights up to that point, Grech disagreed. “There was a period where nobody was allowed to speak to a lawyer before questioning, currently you are allowed to consult with lawyer before questioning and we are moving towards having a lawyer present during questioning. The fact that we are making progress doesn't necessarily mean that we weren't respecting fundamental human rights before. If the case arises we will deal with it in court.”

Bonnici said the government had promised to introduce a holistic reform of the justice system...questions about why it was never introduced before "should be directed to the previous government."

Answering questions about the recent pilot project testing out lawyer-led prosecutions, Bonnici said that knowledge had been garnered from the experience and passed on to two other lawyers. "I am convinced that the challenges will be overcome and that we will have a prosecution unit, that must be independent and impartial... [the unit] is not a lawyer appointed by the minister," as the pilot-project had been.

The bill is available for download from www.mjcl.gov.mt .

In a reaction to the announcement, lawyer and former nationalist MP Franco Debono, who had tabled a motion on justice reform in 2010, said the measure had been necessary because the EU had given Malta till November to introduce this right.

The political troubles of the 1980s were a factor in its conception, he said. After the 1986 frame-up of well-known PN sympathiser Peter Paul Busuttil, who had been wrongfully accused of the murder of Raymond Caruana in a PN club, it was “unbelievable that the PN had failed to grant this right to a person in custody” upon its being elected in 1987, Debono said. Caruana had allegedly been forced to sign a statement admitting to the shooting. “It is hypocrisy. They spent a whole electoral campaign shouting about it.”

Debono confirmed that he had been involved in the drafting of the bill, as a consultant to the Prime Minister on Justice Reform.

“The Bill in fact reflects the proposals I made in Parliament over a five year period from 2008-2012 and even court cases I instituted about this fundamental human right. As at 2010, Malta afforded absolutely no such right. A law unanimously approved by Parliament in 2002 granting suspects the right to consult a lawyer for an hour prior to interrogation was never put in force, until I abstained from a minor parliamentary vote in December 2009, as a sign of protest about the issue and the right came in force some weeks later in February 2012.

“I had immediately started speaking about the upgrading of this right and on the 8th November 2011, I presented in parliament a private members' motion about Major Reforms in justice and Home Affairs [part of which was] to the effect that the right to legal assistance for arrested persons should be during the interrogation and not just prior and also called for the introduction of the rule of disclosure which was introduced some time ago by the current administration;

“This is going to bring about a huge culture change. The lawyer is going to spend a lot longer at depot, during questioning. It is going to be a great challenge for the police as well.”

“From a political point of view I have nothing to add. I proposed them in 2011.”