Magistrate rapped for ethics breach in judgement that cleared man of illegal trapping charges

Public’s right to know: judges’ watchdog does not want ethics breach decision on magistrate to be published

Magistrate Joe Mifsud (centre)
Magistrate Joe Mifsud (centre)

Magistrate Joe Mifsud was found to have breached the code of ethics for members of the judiciary when he expressed his opinion in a judgement he passed on a case of illegal trapping.

In the decision taken by the Commission for the Administration of Justice, the judiciary’s watchdog decreed that its admonition should not be published. But MaltaToday, which has seen details of the decision, has decided such a reprimand is in the public’s interest to know.

“As in previous cases where members of the judiciary are brought before the CAJ, such decisions are taken behind closed doors. Yet this is not the spirit of justice which is itself embraced by those we trust to pass judgement on us: as a newspaper we believe in the public’s right to know when members of the judiciary have been reprimanded,” MaltaToday editor Matthew Vella said.

Indeed, the CAJ told Mifsud in its decision that members of the judiciary should not express themselves on controversies unrelated to the case they are deciding.

In a complaint filed against the magistrate by BirdLife CEO Mark Sultana, the CAJ had to decide whether Mifsud breached the code of ethics when he delivered a decree ahead of a sentence in which a man accused of illegal trapping was cleared of all charges.

In the decree, Mifsud listed a number of recommendations related to the size of nets used to trap songbirds to Maltese authorities – a technical detail that seemed to have nothing to do with the case at hand, and which echoed arguments put forward by the hunting lobby.

The sentence was handed down shortly after a European Court of Justice decision which found that Malta had failed to fulfil the conditions necessary to derogate from the EU’s ban on the trapping of finches. Following an agreement with the Commission, changes were made to the legally permitted size of trapping nets.

The complaint argued that the points raised in the decree had nothing to do with the facts of the case before the courts, and dealt with a political issue on which there were differing views.

“Members of the judiciary should limit themselves to this and should not enter into, or express themselves, in relation to controversies that have nothing to do with the case before the court”

Additionally, as claimed in Mifsud’s own decree in which the magistrate suggested he had undertaken research before expressing his opinion on the matter of trapping, the complainants demanded that he exhibit the alleged research Mifsud carried out.

In arriving at its conclusion, the committee heard the testimony of both Sultana and Mifsud, as well as that of the Parliamentary Secretary Clint Camilleri, the chairman of the Ornis Committee Joseph Grech and Richard Lia, the head of the Wild Birds Regulation Unit.

Mifsud first argued that proceedings had not been initiated in writing or clearly stated the accusation, as outlined in the Constitution. But the CAJ said this point was unfounded since the complaint had been presented clearly “not only to the committee, but also to [Mifsud himself], especially in light of his written reply, which is more like a dossier, and which addresses every complaint made against him”.

The CAJ, however, then said that reading the decision handed down by the magistrate that day, clearly showed that neither of the points in his decree were relevant to the facts of the case.

Mifsud claimed that the research he had done was a reference to things he had learnt over his long career as “an academic, a lawyer and a journalist”, as well as his time presiding over the Gozitan courts, where he decided all hunting related cases on the island.

He also claimed to have met trappers who told him about the difficulties supposedly brought about by a larger net mesh size, necessary to ensure the escape of small birds.

The witnesses, Camilleri, Grech and Lia, all said they had had no communication with the magistrate about the subject.

The committee said it had no doubt that the magistrate’s intentions weren’t to help the hunting lobby or for birds not to be injured. “But this does not mean that the magistrate was right to issue the decree, and for a number of reasons.”

The first was that in order for justice to appear to be done, it was important for the courts to appear impartial.

“The role of the court is to administer justice by deciding on the merits of the proceedings it has before it and to interpret the applicable laws in each case.

“Members of the judiciary should limit themselves to this and should not enter into, or express themselves, in relation to controversies that have nothing to do with the case before the court. There is no doubt that the there is no agreement by the various interested parties regarding the three points raised in the decree.”

The committee also said decrees are handed down in the Court’s name – not the magistrate’s – which means the public can only have faith in the justice system if they felt the courts were impartial.

Finally, the committee also dismissed Mifsud’s own arguments when he claimed that he had in the past expressed his views on a number of subjects, ranging from roadworks to drug and alcohol use, and which he claimed to have an obligation to do.

It noted that the crucial difference in this case was that the decree had nothing to do with the merits of the case.

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