Suspects must be assisted by lawyer at all times during police questioning, court says in landmark ruling

Two statement to the police made by a man accused of drug trafficking have to be expunged from the case after they were released without his lawyer being present during the interrogation

The court has ruled that police statements are not admissible unless made in the presence of the defendant's lawyer
The court has ruled that police statements are not admissible unless made in the presence of the defendant's lawyer

Statements made during police interrogations should not be admissible in court unless the defence lawyer would have been present, the court has ruled.

In a landmark ruling, the constitutional court ruled that two statements released by Christopher Bartolo to the police, without his lawyer being present, should be expunged from the acts of the case.

It emerged that Bartolo, despite having been advised by his previous lawyer not to say anything during questioning, had decided to answer the police’s questions. He gave the police several incriminating details, such as the fact that he would buy cannabis blocks both for his personal consumption as well as to sell to third parties – in particular foreigners in Gozo.

Bartolo had consulted his lawyer before the interrogation, which was the only contact allowed by the law at the time.

The judgment comes in an appeal filed by the Attorney General and the Commissioner of Police to a judgment establishing that there was a breach of Bartolo’s right to a fair hearing because he had not been assisted by a lawyer during the interrogation.

The ruling is a step up from previous rulings on unassisted statements to police.

Previously, only statements which were released after consulting with a lawyer were accepted, but after today’s judgment a lawyer must also be present during the interrogation.

Bartolo was jailed for five years after being found guilty of drug trafficking when he was caught with cannabis after being diagnosed with kidney failure.

The trafficking allegation only emerged from his statement to the police, which is now inadmissible.

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Bartolo’s lawyer, Franco Debono told MaltaToday the judgment means that a lawyer has to be present during the interrogation and not just prior to it, in order not to be in breach of the suspect’s fundamental human rights.

Lawyers Franco Debono and Amadeus Cachia had raised doubts as to the validity of the statements obtained by police from a suspect who had just one hour of consultation prior to being interrogated.

In 2011, Debono had in his previous role as a member of parliament presented a private member’s motion proposing the right to legal assistance during interrogations. The right was eventually introduced in 2015.

The development is expected to lead to many cases being affected, as statements given to the police without a lawyer present are now disallowed.

Debono said it was likely that this would lead to a “second wave” of judgments related to the admissibility of police statements being dropped, as had occurred after the Alvin Privitera case in 2013.