News | Sunday, 27 December 2009

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Conspiracy theory

Over the past decade, Malta has fine-tuned an anomaly in its legal regime to enable the prosecution and conviction of persons in the absence of any concrete proof. RAPHAEL VASSALLO on the subtle erosion of civic rights that nobody seems to have even noticed

Justice has undeniably been under the spotlight in 2009: the year when the highly publicised bribery case involving two high-ranking members of the judiciary was finally lain to rest.
Five years after Malta was shocked by the double arrest of former Chief Justice Noel Arrigo and Mr Justice Patrick Vella in August 2004 – both charged with accepting money to reduce a drug trafficker’s sentence on appeal – the last of the defendants in this insalubrious case was finally convicted in November. Like Vella before him, Arrigo was handed down a prison sentence, which (also like Vella) he will not actually serve in Corradino prison. But leaving aside ongoing polemics regarding the severity or otherwise of this sentence, and the alternative venue chosen for Arrigo’s incarceration, last month’s ruling has nonetheless closed a chapter in a saga that has undeniably scarred the previously unsullied character of the judiciary.
But the bribery case was not the only instance in which Malta’s system of criminal justice found itself on trial this year. In 2009, landmark rulings by the Court of Criminal Appeal also exposed serious shortcomings in the legal regime regulating the arrest, prosecution and conviction on persons charged with ‘conspiracy to commit a crime’ – and unlike the cases of Noel Arrigo and Patrick Vella, the jury is still out on this particular dilemma.
The issue concerns the supposedly inviolable principle of ‘innocent until proven guilty’– considered the keystone of criminal justice, at least in our own British-modelled judicial system. But on the basis of recent verdicts, we appear to have dismantled and demolished this same principle, with potentially serious consequences for the rule of law, as well as for Malta’s reputation as a country founded on the principle of equal justice for all.
The most recent instance to showcase our new and vastly unimproved principle of ‘guilty until proven innocent’ involved a 31-year-old police constable named Jean-Pierre Abdilla, recently convicted for ‘conspiracy’ to traffic in 1kg of heroin, and duly sentenced to 16 years behind bars.
On paper it sounds reasonable enough: heroin being the deadly substance that it is, and the quantity being the 1,000 grammes it was supposed to have been. Until you realise that Abdilla was never actually found in possession of 1kg of heroin to begin with. Nor was anybody else. In fact, the ‘1kg’ in question appears to have existed only in the prosecution’s thesis, and in the minds of the seven out of nine jurors who believed it. No material evidence was ever produced in court: only hearsay, which should technically be inadmissible as evidence. In actual fact, Abdilla was arrested for possession of no more than half a gramme – that’s 2,000 times less than the amount on which he was eventually convicted and sentenced.
This verdict – the latest in a string of such anomalies, nearly always involving drugs – was only made possible by legal amendments effected in the aftermath of two landmark trials of the 1990s, and whose repercussions are still being felt to this day.
The first was the notorious ‘emeralds’ case, in which the defence counsel of Godfrey Ellul – charged with importing a suitcase full of heroin from South America in the early 1990s – argued that Ellul himself was unaware that the suitcase contained illegal drugs at the time of importation. According to his lawyer, he was under the impression that the cargo actually consisted in emeralds – and though he was nonetheless found guilty of illegal importation, with the law as it stood it proved impossible to sentence Ellul on a crime which the jury itself believed to have been largely “imaginary”.
The second case was that of Meinrad Calleja, accused in 1994 of masterminding the attempted murder of Richard Cachia Caruana: then the Prime Minister’s personal assistant. After a trial characterised by unprecedented levels of political involvement – including the astonishing fact that the Prime Minister himself had conducted the criminal investigation on behalf of the Police Commissioner, and then doubled up as a celebrity witness to boot – Calleja was acquitted on all charges, after the testimony of Joseph Fenech (aka Zeppi il-Hafi) was rejected by the jury.
Following the same Prime Minister’s failed attempt to overhaul the entire jury system, legal changes were subsequently effected to facilitate convictions in cases where – as with Meinrad Calleja – evidence is limited only to personal beliefs and opinions of individual witnesses.
Added to previous amendments in the light of the emeralds case, the upshot is that it is now perfectly possible to arrest, prosecute and convict a person without any material evidence to prove his or her guilt... and sometimes even when no crime has been committed at all.
This latter detail accounts for two separate cases which may well pave the way to the eventual capitulation of this absurd state of affairs. Both involved drug trafficking charges, and in both instances, the drugs imported to Malta were not illegal at the time the arrests were made.
The first (and certainly most publicised) occurred in 2006, when British national Steven Marsden attempted to import 50,000 capsules of MCPP – a substance which was not scheduled in the Dangerous Drugs Ordinance at the time, and was therefore not illegal. Marsden was promptly arrested, and the police trumpeted the event as the “largest ever ecstasy haul” in Maltese history – a claim they later had to sheepishly withdraw, when it transpired that the capsules did not actually contain any ecstasy at all.
Despite overwhelming evidence that Marsden’s action did not constitute any breach of the Criminal Code, he was nonetheless convicted and sentenced to 25 years – the maximum possible for drug trafficking – on the basis of conspiracy to commit a crime. Briefly put, Marsden was found guilty of thinking that he had committed a crime, when in fact he had not.
Much the same could be said for the case of a Somali national, Aweys Maane Khayre, who was convicted and imprisoned on charges of importing Khat: a substance which, like MCPP, was not illegal at the time of importation (though, again like MCPP, it was scheduled while the trial was still under way, as if to retroactively ‘criminalise’ Khayre’s actions).
In this instance, the suspect had bought 14kg of khat (which, once distilled to obtain its psychoactive ingredients, would amount to around 20 grammes) from a market stall in London... where it was, and still is, entirely legal. He was arrested on arrival at the Luqa airport, and charged with conspiracy to traffic in illegal substances. In this case, however, the justification for the charge was that khat, while technically legal, contains two illegal ingredients: cathine, and cathinone.
But in what will probably go down as a landmark year for Maltese legal history, 2009 saw both these verdicts overturned in quick succession by the Court of Criminal Appeal. In the Marsden case, the Appeals Court ruled that the prosecution had failed to prove that the suspect himself thought the pills were illegal. And in the case of Aweys Maani Khayre, the same Court pointed out that the conviction had violated a basic legal principle, enshrined in case law, that prohibits conviction for substances when these occur only as ingredients which have to be chemically distilled.
What was really on trial, however, was the dangerous legal innovation of trial by popular suspicion – a trend which the Office of the Attorney General has repeatedly sought to justify, but which has now been multiply shot down by Malta’s highest court.
Considering that both Khayre and Marsden have now taken their case to the European Court of Human Rights, and that Jean-Pierre Abdilla is also appealing against the severity of his sentence, it seems that the absurd ‘conspiracy’ amendments to the Criminal Code are themselves finally in the dock.

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