Judge rebukes AG over ‘illegal and unreasonable’ refusal to grant accident victim access to inquiry

A judge rebuked the Attorney General over what he described as her “illegal and unreasonable” refusal to provide a road accident victim’s lawyers access to the magisterial inquiry.

Samira Borg had suffered a 5% permanent disability in February 2020, after the motorcycle she had been riding pillion on hit a central strip to avoid colliding with an unlit concrete road barrier in Triq tal-Barrani, Tarxien.

Both driver and rider had suffered grievous injuries as a result and a magisterial inquiry had subsequently been launched to investigate the incident. 

In June 2021, after being informed that the inquiry had been concluded, Borg’s lawyers, Alan Zerafa and Andre Portelli, had filed a judicial letter requesting access to the inquiry, with a view to advising her on a prospective civil claim for damages. 

Borg’s lawyers had exchanged correspondence with the Office of the Attorney General, who however, repeatedly refused to allow access to the inquiry, quoting an article of the Criminal Code which grants the AG discretion as to whether or not to grant such access.

In a brief reply to the judicial letter, sent 10 days later, the Attorney General had flatly rejected the request, saying that it was “not in the interests of justice” to grant the victim access to the inquiry file, also stating however that this access might be granted in the future.

In June 2021, Borg had proceeded to file a case for judicial review of this decision by the Attorney General, arguing that the public prosecutor had not provided adequate justification for her refusal. The Attorney General had rebutted the claims, arguing amongst other things that there were “legal considerations which impede the plaintiff from being given a copy of, or access to, the proces verbal.”

In the meantime, the criminal proceedings filed by the police against Karl Grech, the man who had been at the motorcycle’s controls, were declared time-barred in April 2022.

In a sitting in May 2022, Borg’s lawyers informed the judge that they had obtained a full copy of the proces verbal after these had been exhibited in the acts of criminal proceedings filed by the police against Grech.

The AG had then filed a second sworn reply, arguing that in view of the fact that the plaintiff had managed to obtain a copy of the inquiry, a judicial review of the decision to refuse access was no longer needed and that Borg’s juridical interest in the case had been extinguished.

Mr Justice Christian Falzon Scerri, himself a former prosecutor, had dismissed this argument, observing that it would have only applied if the parties had reached an agreement on the costs of the case, which would then have been withdrawn by the plaintiff.

However, as the AG had also refused to suffer the plaintiff’s costs, insisting in her belief that she had good reason not to grant access to the inquiry, the judge ruled that it could not be said that the disagreement had been settled in its entirety.

With regards to the AG’s argument that the woman did not need access to the inquiry to file a civil case for damages, the judge replied that while this may be true, “it is the opinion of the court that these arguments are entirely irrelevant in an action [for judicial review of decision by the Attorney General].”

Nowhere was it written that such an action depended on whether or not the plaintiff could have filed a civil case against someone else, said the judge, pointing out that judicial review proceedings had not been created to litigate against the person responsible for an accident, unlike civil proceedings.

“Above all, the court understands that the plaintiff needed a copy of the proces verbal precisely to help her in her deliberations with her lawyers, as to whether she ought to file a civil case, and if so against whom,” the judge said.

He added that he could not understand why the Attorney General, who knew that this case had been stuck in court solely because the parties had not agreed on how to apportion the costs of the case, “chose the path of increasing the judicial costs by filing a sworn reply with new pleas.”

“In a situation such as this, wisdom and prudence would suggest that the Attorney General should not continue to add to the judicial costs by asking the court to decide on new points and pleas. It however appears that this was not to be.”

In his decision rejecting all of the Attorney General’s arguments the judge ruled that the Attorney General’s decision not to give the woman a copy of the inquiry “was truly an illegal and unreasonable one.”

“It shouldn’t have to be said that the Attorney General cannot expect to be released from an action for judicial review by simply stating that she had not given anyone a copy of the proces verbal, or that she might give [a copy] in the future. Had it been so, no action for judicial review would ever be possible and the legislator would have introduced a hollow legal remedy,” the judge said.

Dismissing the Attorney General’s argument as “probably inane,” Mr Justice Christian Falzon Scerri said it was the legislator’s intention to provide the citizen with an effective remedy to investigate whether the Office of the Attorney General, like any other administrative authority, was carrying out its duties “in accordance with the law, competently, diligently, with seriousness and responsibility.”

The judge also observed that at one stage in the proceedings, a lawyer from the Office of the Attorney General had exhibited an affidavit explaining that the inquiry had not been given to the plaintiff because of the risk that Karl Grech would find out about it and abscond to avoid criminal proceedings against him.

This claim was also shot down by the court, which noted that in fact no warrant had been issued for Grech’s arrest.

“But the ironic thing is that not only was Karl Grech not arrested, but according to a decision by the Court of Magistrates handed down on 4 April 2022, the criminal proceedings led by the police against Karl Grech were declared extinct and time barred. 

“This is not the diligence that one expects from the public authorities and the court finds itself very concerned, as well as sorrowful, at the way things happened in this case.

“So, the Attorney General decides not to give a copy of the inquiry to the plaintiff because in her opinion this could prejudice the criminal proceedings against Karl Grech, but then the criminal proceedings against Karl Grech ended up collapsing because they were declared time barred by the Court of Magistrates.”

Deciding the case, the judge declared that the Attorney General’s decision not to make the inquiry files accessible to the plaintiff was null and void, ordering that all of the costs of the case were to be borne by the Attorney General since it had been filed because her office did not give a decision in the proper manner.

Samira Borg was assisted by lawyers Vince Galea, Alan Zerafa and Andre Portelli.

Clarification: In a previous version of this article a wrong lawyer was indicated as representing Ms Borg. She was represented by three lawyers and the names have been amended accordingly.