Magistrate abstains from Caruana Galizia murder inquiry on family request

Magistrate Consuelo Scerri Herrera has acceded to a request that she abstain from conducting the magisterial inquiry into yesterday’s murder of journalist Daphne Caruana Galizia due to a possible conflict of interest.

 Magistrate Anthony Vella will be taking over the inquiry.

The application asking for the magistrate to stand aside and allow another magistrate to conduct the inquiry was filed yesterday by Peter Caruana Galizia,  the husband of the victim and other family members.

The application, which was filed by lawyers Jason Azzopardi, Karol Aquilina and Therese Comodini Cachia on behalf of the deceased’s family, argued that it was not correct for the magistrate, who had been the subject of several articles on Caruana Galizia’s blog over the years.

Magistrate Scerri Herrera, as yesterday’s duty magistrate, had launched her inquiry gone on site and appointed a number of experts.

In his submissions, the Attorney General had pointed out that although the legal requisites for recusal were not present, it was “appreciated that today’s unfortunate events are of a very particular, if not unique, nature. Amongst other things, it is a matter of public record that the deceased and the inquiring magistrate had several disagreements,” which had even led to court proceedings.

“Whilst the Attorney General makes it clear that he has full faith in the seriousness and impartiality of the inquiring magistrate, he also believes that justice must not only be done but must be seen to be done,” a principle which he said, extends beyond the case on the merits, to the inquiry stage.

This morning Magistrate Scerri Herrera upheld the request, decreeing that the court was of the opinion that her recusal was required “in order for justice not only to be done, but to be seen to be done.”

Before doing so, however, in a 12-page decision, Magistrate Scerri Herrera examined the law in detail and case law on recusal and suspicions of partiality on the part of the judiciary in particular cases. She also observed that the applicants had declared that they had notified the Chief Justice with their court application, but noted that this had been done irregularly. “Neither was there any reference to any legal disposition upon which they base their request.”

However, she said, the particular circumstances of the case at hand meant that there was an objectively justified reason for doubts as to her impartiality, using the criteria established by the European Court of Human Rights.

The acts of the inquiry are to be delivered to the Chief Justice, who will immediately appoint another magistrate to continue with the investigation.

Family demands abstention

The Caruana Galizia family yesterday said Scerri Herrera was a frequent target of criticism of Caruana Galizia, having taken the blogger to court for libel.

“It is not right that Scerri Herrera takes up this inquiry as duty magistrate given the flagrant conflict of interest that can prejudice the inquiry. We have no faith in Scerri Herrera and we do not believe she can conduct a serious and impartial inquiry into the brutal death of one of the country’s leading journalists.”

The family asked that the Chief Justice instructs Scerri Herrera to abstain on the inquiry.
Scerri Herrera had earned a rebuke from the Commission for the Administration of Justice for breaching the judiciary’s code of ethics with behaviour that had compromised her integrity and personal dignity – namely by her attendance at parties and seeking public exposure, but also entertaining the amorous advances of a police inspector.

The revelations were made in Caruana Galizia’s blog, during a saga where Scerri Herrera and her companion, Robert Musumeci, became one of Caruana Galizia's targets.

Those allegations became the subject of the Commission’s investigation, and a criminal defamation action that Scerri Herrera later retracted. Caruana Galizia used her blogs to question the suitability of the magistrate.