Youth implicated in drug trafficking ring handed lifeline by judge

Appeals court upholds appeal against Attorney General’s unfettered discretion, decrees that 27-year-old accused should not face trial.

Alan Muscat, a 27-year-old man who was promised €100 to transport five kilogrammes of cannabis resin, has been handed a lifeline after a judge decreed that he should be adjudicated by a magistrate’s court.

Through his unfettered discretion, the Attorney General has the power to decide in which court an accused could be brought to trial and consequently, which punishment would be applicable – a decision the European Court of Human Rights declared violates the fundamental human rights of an accused.

The case goes back to February 2010 when Muscat, of Gzira, as well as three others – Muscat’s brother Luke, Henry Grogan, 27, and a 21-year-old man - were charged with conspiring to traffic 4.7 kilogrammes of cannabis, trafficking, and possession in circumstances which denoted that the drug was not for their personal use after a deal in Birkirkara was foiled by police.

Muscat pleaded not guilty to the charges and was subsequently placed under a bill of indictment after the Attorney General ruled that he should appear before a judge.

In such circumstances, an accused could then either admit to the charges or face a trial by jury. However, defence lawyer Jason Grima lodged an appeal to challenge the Attorney General’s discretion, arguing amongst others that the accused involvement in the trafficking had been minimal.

In its submissions, the defence argued that Muscat’s only participation was only to transport the drugs in exchange for €100.

Taking this into account, Judge Antonio Mizzi, presiding over the appeals’ court, ruled that the accused’s participation was minimal and that he should consequently face a magistrate’s court rather than a judge.

If an accused were to face a judge before the criminal court, he could face a maximum possible sentence of life imprisonment, while a magistrate may declare that the case be decided summarily where the maximum custodial sentence that can be awarded is ten years.

The AG’s discretion has been found to be in breach of fundamental human rights and multiple court cases have confirmed the breach of Articles 6 and 7 of the European Convention of Human Rights.

The AG’s discretion effectively means that two individuals who committed the same crime can be given different sentences and jail terms, depending on which court is handing down the judgement.

In October, for the first time, a court of appeal upheld the defence’s challenge to the right of the Attorney General to decide by which court a case will be heard. 

Lawyer Jason Grima was defence counsel.