One-hour lawyer’s consult before interrogation not in line with EU law - landmark ruling

Woman freed of drug trafficking charges after Appeals Court says statements were released without legal assistance and drugs found during irregular strip search had to be discarded as evidence

A woman convicted of heroin trafficking has seen her 12-month prison sentence overturned in a judgment that may well affect every conviction based on statements released under interrogation between 2010 and 2016.

This after the court of appeal held that statements released without legal assistance and drugs found by way of an irregular strip search were to be discarded as evidence.

Claire Farrugia, 39, had been strip-searched when visiting Elaine Rapinett who was serving time at the Corradino Correctional Facility. The search was ordered after Rapinett and other inmates were observed behaving suspiciously immediately before the visit. Farrugia was not informed that she could refuse the search and leave.

Heroin was found hidden in Farrugia’s private parts. Farrugia was arrested and interrogated. In her statements to police, released with no lawyer present, the woman had admitted to having brought the drugs in for Rapinett and that she had done so for the preceding six months.

Farrugia was subsequently charged with trafficking heroin, possession of the drug in a manner showing it was not for personal use and smuggling of the drug into prison. She was convicted and jailed for 12 months, as well as being fined €1,200.

She had then filed an appeal arguing that the statements released without legal assistance were to be declared inadmissible as evidence and that the strip search had been “illegal and irregular”.

In its 103-page long judgment on the matter, the Court of Criminal Appeal, presided by Madam Justice Consuelo Scerri Herrera, examined in detail local and EU case law dealing with the right of legal assistance at pre-trial stages and whether these were admissible as evidence.

At the time of Farrugia’s arrest, Maltese law gave an arrested person the right to a one-hour consultation with a lawyer prior to interrogation. It was only later, in November 2016, that the right to full legal assistance both before and during interrogation became law.

The Maltese Courts, taking the lead from other European courts, have consistently held that although the law did not expressly provide for it, the absence of a lawyer during interrogation amounted to a breach of their rights, making such statements inadmissible.

In this case, Madam Justice Scerri Herrera concluded that although there was no breach of fundamental human rights, the practice was not in conformity with EU Directive 2013/48 and declared the statements inadmissible.

The judgment crystallises the game-changing doctrine laid down in the Christopher Bartolo judgment which had first established the right to a lawyer at all times during police questioning.

With regards to the strip search, the court also ruled this illegal due to the fact that Farrugia had not been informed of her right to refuse and renounce to the visit instead.

Leaving aside the argument made by the appellant’s lawyers that the official had acted without the authorisation of the Prison Director and that any intimate search had to be authorised by a Magistrate, the court declared the search illegal and that consequently, any evidence derived therefrom was also to be treated as inadmissible.

This meant that the rest of the evidence put forward by the prosecution was not sufficient to prove its case beyond reasonable doubt, the court concluded, thereby upholding the appeal and acquitting the appellant of all accusations.

Lawyers Franco Debono and Anita Giordmaina were counsel to the appellant.

More in Court & Police

Get access to the real stories first with the digital edition

Subscribe