State Advocate appeals against contempt of court decree in Keith Schembri phone data case

State Advocate Chris Soler has filed an appeal after being fined €500 court earlier this month, having been found in contempt of court on the grounds that his office filed an appeal to a decree that he had renounced the right to.

Mr Justice Lawrence Mintoff had imposed the fine on 16 December, in a strongly worded decree which denounced the fact that the State Advocate’s office had filed the appeal on behalf of the Police Commissioner against an order to exhibit data extracted from former OPM Chief of Staff Keith Schembri’s mobile phone, despite giving the court assurances that it would not.

In an appeal application filed yesterday, the State Advocate said he felt aggrieved by the condemnation, saying it appeared to have been made in the heat of the moment, was unjust in his regard and had no basis in law.

Soler argued that the facts of the case did not fall within the parameters of the law contemplating contempt of court in faciem curiae, and so the court ought to have referred the issue to the Registrar of Courts, in order for separate proceedings to be started. This meant the decision was irregular and null, it was argued.

The State Advocate had been exercising a right arising from the law by filing an appeal on behalf of his client, the Commissioner of Police, he said. “It should not be the case that in our juridical system a lawyer be condemned to pay for the instructions given by his client, as otherwise the legal profession per se would erode until it collapsed.”

It was evident that the judge had not sufficiently appreciated the situation of the State Advocate as only the lawyer and mandatary of the client – a relationship which does not fall under juridical purview, he said. “It is unheard of that a lawyer be condemned for contempt of court if his client changes his mind about whether or not to appeal a decree,” argued Soler in his appeal application.

The issue of whether the party had renounced to its right of appeal beforehand and whether this right can be taken to have been comprehensively renounced to, on the basis of a unilateral declaration, are separate issues from contempt, he said. “If anything, these would be decided by a court equipped to decide that appeal if the issue is raised in that sense.”

Criminal punishment imposed gratuitously

It was therefore submitted that the conviction for contempt of court, which is punishable by a fine, but which can be converted to imprisonment under the Criminal Code, was missing a legal foundation. This constituted a violation of the constitutional law principle of nulla poena sine lege (no punishment without a legal basis), argued the State Advocate, “in that it has the characteristics of a criminal punishment imposed gratuitously.”

Soler also pointed out that he could not inform the judge that the appeal had been filed because he had not drafted the appeal application, nor had he signed it. Lawyers are also not obliged to inform the court when an appeal had been filed from one of its decrees, argued the lawyer, arguing that this was an internal administrative function of the Registrar of Courts.

Yorgen Fenech’s three lawyers had not informed the court of the appeal either, despite having known about it for over two weeks, Soler pointed out, observing that none of them had been found in contempt of court, despite this.

No intent to disrespect the judge

The State Advocate had never intended to give the impression of disrespect towards the court or the judge, Soler said, adding that he had always acted as an official of the court and a mandatary of his client and that the First Court should have appreciated this. “The undersigned has always exercised his function in good faith, loyally and correctly and it is, with all due respect, incorrect of the court to allow the other party to dictate a verbal note after a decree of contempt of court, for no legal reason but apparently only for his personal satisfaction and for the gallery, where he attributed suspicious and untrustworthy actions to the undersigned…”

In his appeal application, the State Advocate also pointed out that although he had, for several reasons, not appeared for the 16 December sitting, the defendants had been represented by lawyers Maurizio Cordina and Miguel Degabriele from the Office of the State Advocate.

Soler explained that at the time, he had been covering urgent sittings instead of other lawyers in the Office who had contracted Covid and who were in quarantine. It was common practice for lawyers who cannot appear in sittings to be replaced by other lawyers from the same office, Soler argued, highlighting that this had never been interpreted as contempt of court.

The decision finding the State Advocate in contempt of court had been based on an incorrect underlying assumption, he argued, as he had not validly renounced to his right of appeal.

‘I did not waste the court’s time’

He added that the decision had also been made on the basis of a decree which had been made beyond the scope of the court’s powers. This was because he was not allowed to explain himself by the court and warned, whilst dictating a note on behalf of his clients, that the fine would be doubled if he continued. “It was at that stage that the undersigned lawyer realised that in the prevailing atmosphere, he could not explain himself before the First Court and had no choice but to remain silent.”

Soler denied the accusation that he had wasted the court’s time, saying he had never done this and had always appeared for sitting on time, performed his duties within the timeframes provided and had never asked for an adjournment. “Unfortunately, the same cannot be said for the other side.”

He insisted that he had always been “ultra-careful” to ensure he acted in an ethically correct manner, reminding the court that he had not signed the appeal application, saying that it was a shame that he was not allowed to explain this to the First Court, which had decreed on a mistaken presumption.