State Advocate fined after going back on Schembri phone evidence appeal

A judge has found the State Advocate in contempt of court, fining him €500, after a lawyer from his office filed an appeal on behalf of the Police Commissioner against the court order to exhibit data from Keith Schembri’s mobile phone – when the court had already been given assurances that no appeal would be filed.

Mr Justice Lawrence Mintoff was hearing a constitutional case that had been filed in 2019 by Yorgen Fenech, who is accused of masterminding the assassination of journalist Daphne Caruana Galizia, against the Commissioner of Police, the State Advocate, the Home Affairs Minister and Police Superintendent Keith Arnaud. In it, Fenech is asking the court to remove Superintendent Arnaud from the investigation.

In the previous sitting on 19 November, the judge had ordered the Commissioner of Police to immediately exhibit a copy of the data extracted from former OPM chief of staff Keith Schembri’s mobile phone.

After this decree was read out, the State Advocate explicitly declared there would be no appeal from this decree. “By means of a long and detailed verbal note, it was declared that the Court’s order would be followed and that the Commissioner of Police would simply, only and exclusively…. obey, follow, implement and execute the instructions of this Honourable Court,” Fenech's lawyer Charles Mercieca had submitted.

But then on 24 November, the parties were notified that the State Advocate had filed an appeal to the decree on behalf of the Police Commissioner.

“Independently of the irregularity manifest in the appeal application... [this] clashes with principles established in jurisprudence and constant practice, which before the submission of this act, were presumed to be subscribed to by every party to this case,” Mercieca said, arguing that the verbal note in a court constitutes a judicial quasi-contract.

“The defendants are aware of this jurisprudence and therefore this means one of two things. Either, whilst the note was being dictated there was already the intention to appeal or otherwise, after the verbal note was made there was an intervention intended to change the defendants thinking and file an appeal.

“Both scenarios are very worrying and a matter of concern,” the court was told. “It is the impartiality, the integrity and the profoundness of the investigators and the investigations which are being scrutinised. Which impartiality and integrity finds no comfort in the behaviour, at times even nebulous, shown by the Commissioner of Police… in the stratagems adopted so that the information found on Keith Schembri’s mobile phone remains hidden and is protected at all costs, even at the cost of irreverence to the orders and decrees of Malta’s Courts of Constitutional jurisdiction.”

Having seen the appeal application, Mr Justice Mintoff temporarily suspended the hearing and ordered the State Advocate, Chris Soler, to attend court in person.

The furious judge then delivered a strongly worded decree, dismissing the State Advocate’s explanation and pointing out that during the previous sitting, Soler himself, in the presence of police assistant commissioner Alexandra Mamo had minuted that the police commissioner would bind himself to exhibit a copy of all the data extracted from Schembri’s phone.

This meant that the respondents had renounced their right to appeal, said the judge, angry at how when the data was meant to be presented, the court had been told they had appealed anyway.

Ruling that this had wasted the time of the court and its officials, Mr Justice Mintoff decreed that this behaviour amounted to contempt of court and fined the State Advocate €500.

Soler did his best to explain what happened, insisting that his declaration to the court had been dictated in good faith and saying that although he had declared there would be no appeal, he was also bound by professional secrecy and needed to consult his client, in this case the police commissioner.

But the judge highlighted that at the previous sitting, on November 19, assistant commissioner Mamo was physically present in court and had voiced no objection to the decree delivered that day or to Soler’s renouncement of any appeal rights.

The case continues but it is now up to the Constitutional Court to determine whether Fenech will ultimately get the requested data.

The court was also told that Keith Schembri had meanwhile filed an application to get access to his phone data too.

Mr Justice Mintoff granted parties five days to reply to the application. But those five days will only apply if the Constitutional Court confirms Judge Mintoff's decree.