Judge says MPs should rein in AG’s powers over intransigence on ‘Maksar’ bail case

A judge has expressed hope that MPs will amend the law to rein in the Attorney General’s powers, after expressing dismay at her intransigent refusal to provide the State Advocate with important documentation in a case concerning suspected gang member Adrian Agius ‘tal-Maksar’.

Mr Justice Francesco Depasquale was handing down judgement in a human rights breach claim filed by Agius over the courts’ repeated refusals of his bail requests.

On 1 March 2022, the State Advocate – the state’s prosecutorial arm – informed the court that AG had not passed on all the documentation relating to the case, citing a section of the Criminal Code granting it discretion to limit access to acts of a case not yet read out in court.

Then in April, the State Advocate unsuccessfully asked for an adjournment, contending that documentation exhibited in the Criminal Court had not been brought to their attention, both because the case file was secured in the judge’s chambers and in view of the sensitive nature of the case. The State Advocate informed the court that the AG was not providing him with access to the documentation in question.

Depasquale condemned the Attorney General’s behaviour in no uncertain terms in his judgement, expressing “consternation at the intransigence and the clear failure of the Attorney General to provide the documentation to the State Advocate under the pretext that [the law] precludes her from doing so.”

“The Court observes that it is truly unreal and incredible that, in the year 2022, the Attorney General can in some way, continue to rely on these procedural and anachronistic excuses in order to undermine the current proceedings,” wrote the judge, who added that he, too had been precluded from seeing the acts, until he ordered the Registrar of the Criminal Courts to exhibit some of them.

“The behaviour of the Attorney General is like that of a person who engages the services of a lawyer but refuses to pass on important documentation to him while he is attempting to defend that person.”

The behaviour was “certainly untruthful, unbelievable and out of place,” said the judge, going on to note that the powers of the Attorney General in certain aspects of criminal procedure “go well beyond that which can be taken as reasonable.” 

“Certainly the intransigence of the Attorney General, a result of the unilateral power granted to her, is causing pointless delay and stagnation in criminal proceedings because of pointless delay, misplaced resistance and inefficiency in the handling of criminal cases.”

The court conceded that this was not the complaint made by the applicant, and said it would “stop making considerations about its serious concerns, whilst hoping that in the near future, holistic legal amendments will be announced, whereby the unilateral and indisputable prerogative of the Attorney general in various sectors be further limited and this situation be remedied so that the anachronistic procedures used today solely to draw out and hamper criminal proceedings be completely eliminated."

With regards to the accused’s various bail requests, the judge pointed out that they had indeed been consistently refused, however not solely on the grounds of public disorder, as had been claimed, but also due to various other elements, including the serious nature of the offences with which Agius is charged.

The Court said it had no doubt that in view of the grave nature of the charges brought against the applicant, the actions of the Attorney General and the State Advocate could never have led to a breach of the right to the applicant’s personal liberty, ruling that Adrian Agius had not suffered any breach of his constitutional rights or those protected under the European Convention on Human Rights.

Agius's lawyers say they are considering filing an appeal to the judgment.

Lawyers Alfred Abela and Rene Darmanin appeared for Agius. State Advocate Chris Soler and lawyer Charlene Camilleri Zarb represented the Office of the State Advocate, whilst lawyers Maurizio Cordina and Vanessa Grech appeared on behalf of the Office of the Attorney General.