NEWS | Wednesday, 11 February 2009

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Raphael Vassallo
An appeal filed last week by lawyer Dr Joseph Brincat on behalf of Steven Marsden, 49 from the UK, pinpoints a number of serious anomalies in Malta’s arrest, detention, interrogation and prosecution system.
Marsden was convicted of drug trafficking on 9 January, and sentenced to 25 years’ imprisonment. He had been arrested after entering the country in 2006 with over 50,000 pills of a substance believed to be ecstasy, but which turned out to be another chemical, mccP, which was not illegal at the time of importation.
The bill of indictment was subsequently changed from “trafficking” to “conspiracy to trafficking”, and a jury found him guilty by eight votes to one.
But his defence team argues that the charges were never proved in court: suggesting in turn that evidence is no longer required to secure a conviction under Maltese law.
Instead, the verdict appears to have been reached on the grounds that Marsden did not co-operate with the police while his car was being searched: a fact which carries grave consequences for the administration of justice in Malta.
“The prosecution mounted a strong denigrating campaign against the appellant because he had not co-operated with the police in showing them were the drugs were hidden,” the appeal states. “The defence here retorted that no person under interrogation or speaking to a person in authority is bound to say anything, or in any way to collaborate (with his interlocutors)”.
The implication is that, contrary to the oft-quoted movie clichés, criminal suspects in Malta do not have the right to remain silent, and anything they do not say can afterwards be used against them.
Matters are compounded by the fact that Marsden was also denied access to legal representation: a situation which may result in unwitting self-incrimination.
“...Serious consequences would follow, as the arrested person had no right to legal assistance and would not have known the implications of his lack of cooperation, and that it could be used as a basis for an inference of guilt,” the appeal continues.
Contacted by MaltaToday, criminal lawyer Dr José Herrera explained that non-cooperation with the police can never legally be used to infer guilt.
“Whether or not a suspect co-operates with the police cannot afterwards be used as evidence of guilt,” he explained, “although it is legally acceptable for the lack of co-operation to be taken into consideration by a judge when passing sentence.”
Herrera referred to a landmark murder trial, in which Judge Wallace Gulia’s instructions to the jury afterwards led to a reversal of judgement at appeals stage.
“The judge had told the jury that the suspect’s refusal to make a statement could be taken as an indication that he had something to hide,” he said. “But this is not permissible by law, and the Court of Appeal later threw out the verdict altogether.”
Dr Herrera also pointed out that the judge is compelled to raise this issue with the jury, so as to avoid similar occurrences in future.
“If, on the other hand, it is the prosecution that infers guilt through non-cooperation, then the judge is bound by law to correct the inference before the jury deliberates its verdict,” Dr Herrera added.

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