Recent cases involving the presumed intention to commit crimes – even though no crimes can be said to have been committed – have opened a Pandora’s box of uncomfortable legal implications. RAPHAEL VASSALLO on the apparent advent of ‘thoughtcrime’ to Malta
It now seems to be official. Proof of guilt is no longer required in order to secure a conviction in a Maltese court of law; nor, for that matter, is evidence that a crime has even been committed. All that is necessary is for a person to be charged with intending to commit a crime; and for that person to be unable to prove his innocence afterwards.
These, at least, are the immediate implications of the conviction handed down last week to Steven Marsden, 48 from the UK, who was sentenced to 25 years’ imprisonment for trying to import 50,000 pills containing a substance originally mistaken for ecstasy.
Marsden was held at the Corradino Correctional Facility for two years, during which time he was repeatedly denied bail on the declared grounds that he is a foreigner. (Ironically, this very week four Maltese men were granted bail for a similar “presumed” offence; though this time the “illegal drugs” turned out to be 30kg of soap.)
But apart from raising the spectre of blatant discrimination in Malta’s bail regime, the two trials appear to also underscore a basic contradiction in our criminal procedure. In both cases, the prosecution initially pressed charges for drug trafficking, only to later change the bill of indictment when it became apparent that the substances involved were not actually illegal.
Soon after Marsden’s arrest in 2006, the police issued a statement claiming to have landed “the largest-ever ecstasy haul” in Maltese history. But it quickly transpired that, far from being the highly illegal MDMA, the pills were actually MCCP: which at the time was not scheduled under the Dangerous Drugs Ordinance.
Faced with this embarrassing revelation, the prosecution argued that Marsden himself was unaware of the precise nature of the drugs he had tried to import; and that he had conspired with at least one other person to import “ecstasy”. On his part, Marsden – who was also denied legal assistance while under interrogation – insisted otherwise.
At a glance, it appears to be a straightforward case of one man’s word against another’s. But in what appears to be a reversal of one of the most basic principles of criminal law – that the onus of proof lies with the entity making the accusation; in other words, “innocent until proven guilty” – Marsden found himself having to prove his innocence, rather than the prosecution having to prove his guilt.
Ultimately he was unsuccessful, and in his ruling, Judge Joseph Galea Debono significantly observed that “it was clear that eight out of the nine jurors had not believed accused’s version that he conducted a research on internet to determine whether he could legally import the drug into Malta or not.” [sic]
But the judgment says nothing about any corresponding evidence against Marsden during the trial. In fact, it is clear from the ruling itself that the verdict had been reached on the basis of the defendant’s inability to prove his innocence, and not the other way round.
Law and disorder
How can we talk of the “innocent until proven guilty” principle, when the law courts seem to operate on a “guilty until proven innocent” basis?
Asked this question over the phone, Attorney General Dr Silvio Camilleri insisted on limiting his comments only to the definition of the charges brought against the accused by his office.
“There is a total misconception of what ‘conspiracy’ means,” he began testily. “And quite frankly I’m getting tired at having to explain it over and over again. It is the act of entering into an agreement with one or more other person to break a law – not necessarily to import an illegal drug; it can be to commit any other crime...”
When I tried to draw him back to the original question – is it possible to be convicted in the absence of any proof, simply because you are unable to demonstrate your innocence? – Dr Camilleri said he would not comment on a case which is still “sub judice”.
Pressed for a more generic answer, the Attorney General quickly lost patience. “No doubt you would prefer it if trials were conducted by the newspapers instead of by the law courts,” he snapped. The rest was mostly lost in all the shouting.
Elsewhere, lawyers appear to agree that the Marsden case did not overturn any significant legal principle. Chamber of Advocates president Dr Andrew Borg Cardona told MaltaToday Midweek that “one man’s word against another” is in fact an acceptable basis for a verdict.
“People are free to agree or disagree with (the jury’s) decision, or for that matter with the judge’s sentence; but ultimately, this is why we have a Court of Criminal Appeal, as well as a Constitutional Court,” he said.
Contacted separately, criminal lawyer Joseph Giglio explained that in cases like this, the burden of proof definitely rests with the prosecution: “I am not familiar with the full details of this case, but my understanding is that the prosecution presented a statement which they claim Marsden had made voluntarily while under arrest.”
According to this statement – which was indeed presented – Marsden had referred to the drugs as “ecstasy”. But the statement was not signed, and Marsden himself disavowed its contents during the trial.
“If this is the case, the statement is certainly admissible as evidence in a Maltese court of law. If the defendant argues that the statement was not accurate, or not made voluntarily, then it is up to the jury to decide whether to accept the version of facts given by the accused during the interrogation, or the version given during the trial,” Giglio says.
Clearly, then, in cases when the evidence proves inconclusive, innocence or guilt will have to be established on the basis of which of two contradictory versions the jury is likelier to believe. So much, then, for the burden of proof.