Court of Criminal Appeal laments inconsistency in legal interpretation of unassisted police statements

To this day, it is not yet established with certainty as to whether a police statement taken without a lawyer being present is considered a breach in the right to a fair hearing, the judge said

The Court of Criminal Appeal has lamented the courts’ lack of consistency in deciding cases of unassisted police statements, as it confirmed the acquittal of a man accused of aggravated theft and charges relating to slight injury.

Yousef Essesi of St. Julian’s had been jailed for 13 months and lost his €5000 personal guarantee last October after being found guilty of one of the three counts of aggravated theft. He had been found to have stolen an iPhone.

The Attorney General had appealed the judgment, asking amongst other things, that the man’s statements to police, which had been made without a lawyer being present, be considered as evidence. “The statements have little to no incriminating value against the accused as evidence, but are important to establish his credibility,” argued the AG, explaining that there were standout inconsistencies between the statement and the courtroom testimony given by the accused. In addition to this, two police officers who had been present for the statements were never asked to testify in the proceedings, argued the prosecutor.

Madam Justice Consuelo Scerri Herrera ruled that her court only had the competence to decide whether the statement is admissible or not, as explained in her 40 page judgment, confirming Essesi’s acquittal.

Quoting landmark ECHR Grand Chamber case Beuze vs Belgium on the right to legal representation during interrogation, as well as a raft of local jurisprudence, the judge noted that some judgments emphasised the inadmissibility of the unassisted statements as something automatic, whilst others said that they had to be evaluated in their totality together with the “overall fairness” of the proceedings.

Madam Justice Consuelo Scerri Herrera made the observation that “to this day, it is not yet established with certainty as to whether there is a breach of a right to a fair hearing when the accused is not accompanied by a lawyer during his statement when the law at the time did not provide this right, and consequently as to whether such statement is to be expunged or not.”

She pointed out that the Constitutional Court and the Court of Superior Criminal Appeal had, in January this year, even given contradicting judgments on the issue of admissibility of unassisted statements which pre-dated the introduction of the right to assistance - on the same day.

The judge observed that the law introducing the right of a suspect to be accompanied by a lawyer of his choosing during his interrogation came into effect after Essesi had been questioned. In her judgment on the matter, she emphasised several times, the fact that he had been given the right to consult with a lawyer before questioning, in line with the law in force at the time and that her remit was not to assess a breach of human rights, but to decide on the statement’s admissibility or otherwise, whilst taking into account the overall fairness of the proceedings.

Scerri Herrera noted that the accsued was “not some new face” to criminality and had been an adult at the time. Neither was he a vulnerable person at law. The statements had not been taken in an intimidating circumstance and had been given voluntarily, without threats or promises, and after he was duly cautioned according to law.

The man had refused to be assisted by a lawyer before his interrogation as he had felt it would have been for nothing if the lawyer could not be present during it.

The court said that neither the prosecution, nor the AG had given compelling reasons to refuse the man legal assistance during his interrogation, bar the systematic restriction in force at the time.

“This court, whilst in no way declaring that the statements released by the defendant are in breach of his rights, finds that in view of the fact that the courts to this day give different directions about the use of statements released at the time when the accused had no right for a lawyer to be present, in the interests of justice and integrity of the process must declared the statements as inadmissible and therefore order their expungement.

Noting that if the circumstantial evidence does not lead to a single conclusion, in such a way as to cause the court to doubt guilt, this evidence cannot be taken as satisfactory in the criminal field for a conviction.

Not only this, but there were doubts as to whether Essesi could have jumped over the walls “like a monkey” in view of the fact that he had been recovering from an operation at the time. Several fingerprint lifters had been utilised by the police but the prosecution had failed to exhibit this forensic evidence against the appellant, added the court.

The judge confirmed the original judgment by the lower court in its entirety.

Lawyers Edward Gatt and Shaun Zammit assisted Essesi.