Constitutional Court orders drug case against vulnerable teenager to start afresh, despite guilty plea

The Constitutional Court has ordered that drug proceedings against a vulnerable teenager start afresh after ruling that a guilty plea he filed was vitiated by a potential human rights breach.

Alexander Hickey had been just 17 years old when he was arrested on suspicion of drug possession on April 4, 2012 and interrogated by the police without a lawyer being present, as the right to legal representation during questioning had not yet been introduced in Malta. He had spoken to a lawyer before questioning and then released a statement on 9 April 2012.

That same day he confirmed both statements on oath before a magistrate and gave evidence.

On the 13th October 2014 charges were issued against the accused. They included conspiracy to import, sell or deal in cannabis grass, cannabis resin, ecstasy, LSD and methamphetamine; importation of the same; production, sale and dealing in cannabis, ecstasy and LSD; and possessing cannabis and ecstasy without special authorisation by the superintendent of Public Health.

He had pleaded guilty to all charges in November 2015. He also requested a pre-sentencing report prior to delivery of judgment, and the parties suggested to the Court that the appellant be condemned to imprisonment for a period of three years and a fine of €7,000.

Further sittings were held and, in the meantime, Hickey changed lawyers. On 4 December 2017, Hickey’s new counsel, lawyer Rene Darmanin, informed the court that his client was contesting the validity of the statements he had released.  A Constitutional reference was requested in June 2019, and granted, asking the Court to answer whether the two statements were issued in breach of the Constitution and European Convention on Human Rights and whether an eventual judgment based on the man’s guilty plea would also be in breach of the same articles of the law. The First Hall of the Civil Court in its Constitutional jurisdiction had decided that his rights were not breached by the prevailing situation.

Hickey had then appealed in October 2020, arguing that he had not been assisted by a lawyer, he was still a minor when he was interrogated by the police, he had a clean conduct, never had any contact with the police, it was the first time that he was interrogated by police, and his guilty plea was based on the two statements which he made in the absence of a lawyer.

“There is no doubt that the statements dated 5th April 2012 and 9th April 2012 are self-incriminating statements,” ruled the court. “At the time the appellant was 17-years-old. He explained that with other youngsters he bought drugs through the internet and sold them at school. He also confirmed that he bought drugs in Malta, and identified the sellers. The appellant also stated that he personally made use of drugs.”

Once the appellant filed a guilty plea there was no reason for the prosecution to present further evidence on the merits of the case. From then on, the defence produced evidence with regards to the punishment. The court of appeal noted that the accused’s guilty plea had been made and all that remained uncertain was the punishment.

In its judgment on the matter, the Constitutional Court, presided by Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul, said that the fact that he had consulted with a lawyer before interrogation was “not enough to remedy the lack of legal assistance during police interrogation. Amongst other things there is no proof of whether the lawyer was given any information by the police with regards to the alleged crimes committed by the appellant and proof that they had against the suspect (appellant). Information that was essential to place the lawyer in a position to properly advise his client.”

As the criminal proceedings were still pending, the court said it would be premature to declare his right to a fair hearing had been breached. However, it added that this notwithstanding, judgments of this court have already made it amply clear that statements given by a suspect while in police custody and in the absence of a lawyer, should not be used as evidence against him due to the risk that it may lead to a breach of the accused’s right to a fair hearing.

The court observed that the self-incriminating statements in issue were probably the reason why he had filed an early guilty plea. Since at the time of the interrogations the appellant was still seventeen years old, was a student, had a clean criminal record and never had any previous contact with the police, there was “a solid argument to conclude that he was a vulnerable suspect.”

The accused’s psychologist had tendered a report to the court, explaining that the man had symptoms of autism spectrum disorder, among other psychological difficulties and “perceived himself as capable of handling himself in difficult situations.”

“However, that is the appellant’s own perception,” noted the court, concluding that Hickey could be classified as a vulnerable person at the time of his interrogation. The presence of his mother during questioning was no replacement for the presence of a lawyer, pointed out the judge.

The court declared that it was premature to declare that the issue of the two contested statements by the appellant in the absence of legal counsel, constitutes a breach of his right to a fair trial and that it was likely that the appellant’s rights would be breached should the two statements be used as evidence. It recommended that the two statements are removed.

The Constitutional Court added that a judgment based on the applicant’s guilty plea filed during the sitting of the 15th November 2015, would likely constitute a breach of Hickey’s fair trial rights. Since the appellant made his complaint after the criminal proceedings had been adjourned for final submissions and in view of what has been decided in this judgment, the court ordered that both parties to the criminal proceedings be placed in the same position they were in prior to appellant’s 2015 guilty plea and the case heard afresh.

Lawyer Rene Darmanin was defense counsel.