When court orders must be defied

The issue of whether or not the law-courts can (or should) issue a media ban on the publications of names, in any given case, has long been a bone of contention.

The media has a Constitutionally obligation to publish information about court cases, but there are nonetheless exceptions to this right. It is recognised and understood that the court may (and frequently must) impose publication bans to protect the fairness and integrity of the case, the privacy or safety of a victim or witness, or the identity of a child or youth.

A judge also has the authority to order a publication ban where various principles, including the effects on the accused’s right to a fair trial, the right to freedom of expression, and the administration of justice, come into play.

But even if such exceptions do exist; they remain exceptions, and as such should only be resorted to in exceptional cases. The Constitution places restrictions on the law courts, too; the principle that ‘justice must be done, and seen to be done’, underpins the essentially public nature of the entire judicial process.

Once again there are exceptional cases which must be ‘be heard behind closed doors’. But the general rule is that the judicial process itself is, and must remain, a public affair; which explains why anyone can walk into court and attend (almost) any sitting. Indeed, the media’s obligation to report court cases arises from this very principle.

For this reason it is disconcerting that the local judicial system sometimes seems to forget this principle, and consents to publication bans even in cases where there is no reasonable cause to apply the exception.

Last week’s court ban on the identity of a man, for whom there is a European Arrest Warrant for mafia connection in the remote gaming world, is a case in point. It is one of the rare, but necessary occasions that a newspaper must defy a court publication ban.

The name is Antonio Ricci, listed as a company secretary to the Malta company Harvey Gaming, that has been arrested by EAW on suspicions of laundering ‘Ndrangheta mafia funds. He was denied bail by Magistrate Astrid May Grima; but strangely, the name of the 43-year-old businessman cannot be published by court order.

This is doubly unusual, because the name has already been made public by Italian state TV TG3: Ricci being one of the few named suspects not arrested in a blitz by Italian police in Operation Galassia last year.

Ricci was wanted by a court in Reggio Calabria to answer to charges that he laundered cash belonging to the mafia through his locally-based iGaming company.  But defence lawyer Arthur Azzopardi requested a ban on the publication of the man’s name, due to the fact that the requested person’s surname is common in Italy, but not in Malta; and because the requested person’s company employs some 80 people and the publication of his name would put their livelihoods in jeopardy.

Strangely, the prosecution did not object to the request, which was then upheld by the court. This raises a number of questions.

The first, and most important, concerns whether all Maltese defendants on lesser charges, and with no top management rank, would be accorded such clemency when charged in court. A glance at court records suggests otherwise: in most cases, it is standard practice for prosecution to object to such demands – including bail requests – unless there are clear and immediate reasons not to do so.

It is understandable that agreements will be reached in cases involving minors, or where the nature of the crime demands discretion. No such objection, however, can be raised in this case.

Another question concerns the presumption of innocence. All defendants, - including Ricci, and other names protected by court order – have the right to a fair trial, and to be assumed innocent until proven guilty. But this does not extend to the publication of names in this case.

In the absence of any other reason to accede to the defence’s request, the law courts seem to be implying that the court order was necessary to protect the accused from the presumption of guilt. If so, there is no reason why the same protection should not be offered to any suspect charged with any crime. The entire principle of ‘justice seeing to be done’ will have been thrown out of the window. Justice cannot only be seen to be done in some cases, but not others.

This becomes especially important given the nature of the case at hand. Without delving too deeply into the details, the circumstances suggest that the Italian and Maltese worlds of criminality are overlapping each other, in areas where sports, remote gaming and financial eservices are concerned.

It would be superfluous to add that the Maltese public also has a stake in these proceedings.

Ricci may not be guilty as charged, and must be considered innocent before proven otherwise but allowing his identity to be protected on Maltese territory, on such serious charges, is an effrontery to the rights of those who are charged in Maltese courts, and made to face the court of public opinion.