The wrong arm of the law

Christmas is traditionally a time for excess. And just in case anyone had forgotten that little detail, Malta's forces of law and order this year made it their mission remind us all with some spectacularly wacky displays of hypersensitivity and over-enthusiasm.

Allow me to cite two examples of recent criminal prosecutions in which the police clearly overstepped their remit, and the law courts (in at least one instance) acted as accessory to the nonsense.

The first case concerns a 22-year-old party organiser named Joel Caruana, whom the police are suing for libel over a Facebook status update.

You may have heard of Caruana before: he's been in and out of court over defilement of minors for a few years at least. I won't go into the merits of any previous prosecution or conviction; but this latest one - libel for a Facebook comment - stretches even our own standards for legal absurdity to their utmost limits.

What effectively happened was this. Joel C Marketing was denied a police permit for yet another party, this time on the grounds that the organiser was facing multiple charges for offences related to abuse of minors. So far, so good.
Joel Caruana posted a Facebook status claiming that the real reason the police had refused the permit was because the venue was too small, and they did not have enough resources to police the event as there were two other parties that same day.

I myself have no difficulty whatsoever believing the police's version of events, and disbelieving Joel Caruana's. I somehow suspect that goes for pretty much everybody else, too.

But the police response to this affront was infinitely more sinister and dangerous than Caruana's little lie. They not only sued him for criminal libel - which is itself a bizarre over-reaction - but also threw in gratuitous charges of 'misusing a computer' and 'relapsing'. The implications for everyone else are little startling, for want of a better word.

Let's start with libel. The word has a definition at law, and as the police in this country also double up as state prosecutors - more on this anomaly later - I for one expect them to be thoroughly familiar with its meaning. 'Lying about someone' is not the same as 'libelling' that someone. For libel to be invoked at law (or slander, if we were dealing with a spoken slur), there must be the inference of damage to one's reputation.

Had Joel Caruana claimed that the police were accepting bribes from other party organisers, then yes, they would certainly have grounds to sue him for libel. But even if manifestly dishonest, his claim that the police are 'under-resourced' in no way imputes any malicious, criminal or disreputable intentions to the same police. A vital component of the legal definition of libel is simply missing from the scenario, and libel law cannot therefore be invoked.

Yet the police sued him for libel regardless, thus broadening the term to mean several things it patently does not mean at all. Needless to add, the same law that they rewrote in the process is also applicable to everyone else.

But more perturbing still is the charge of 'misusing a computer'. If every blatant lie posted on Facebook were suddenly to be considered a criminal act, the police would have to arrest every single conspiracy theorist on the island. And for such a small country, we seem to have a disproportionately large number of conspiracy theorists, too (Note: personally I believe they are all genetically engineered in a top-secret laboratory under Castille. But if I told you the details, I would have to kill you.)

By the same reasoning, everyone who predicted the end of the world on 31 December, 2012, should now be facing criminal charges for 'misusing a computer'. And if it turns out that that North Korean nutcase didn't actually feed his uncle to a pack of hungry dogs, they'd have to likewise prosecute everyone Facebook user who shared the link.

I won't comment about what they'd have to do to a couple of blogs I can think of, either. The important thing here is not so much what this ridiculous precedent would mean if it were actually applied across the board. The important thing is that it is NOT actually applied across the board... but only in cases where the police themselves feel threatened or insulted.

Seeing as the police in Malta have the power to both investigate and prosecute crimes, this is literally a case of all cards stacked up in the force's hands. And given the complete lack of transparency in the structures of the same force - to give one example: the supposedly independent office of police discipline is in fact a tiny branch of the same institution it is meant to monitor - the resulting scope for abuse of power is quite simply staggering.

This case is itself a blatant abuse of police power. It is an example of allowing one's own hypersensitivity to get in the way of the business of enforcing law and order; and if they get away with it, there is no telling how and to what end they might abuse such loosely-defined laws in future.

But they're not the only ones at fault here. Part of the responsibility has to be shouldered by the law courts, and in a sense the entire system. Judges and magistrates have the power to throw cases out of the court if they view the grounds for prosecution as vexatious. Leaving aside cases rejected at compilation of evidence stage - where the principle is the same - I am unaware of any case thrown out of court for failing to meet the minimum criteria for a legal criminal prosecution.

This failure to reject even the most banal cases has a ripple effect which can be felt by anyone who comes into contact with the law-courts. By allowing such pointless prosecutions, judges and magistrates effectively encourage the police to waste time and resources which could be better spent tackling real crime. The result is an ever-widening gulf between cases commenced and cases concluded, and with it the growing perception (100% accurate, in my opinion) that the law-courts are too incompetent and institutionally flawed to handle their own workload.

In the second case, the implications are more disturbing still. This is how it was reported in the press: 'A 19-year-old man has been remanded in custody after he was charged with assaulting and slightly injuring a police officer... Police Inspector Trevor Micallef objected to [Josef Xerri] being granted bail arguing that 'maybe people will learn not to treat police like rubbish'. The magistrate remanded the accused in custody.'

The issue here is not so much the arrest itself. Xerri stands accused of "threatening, assaulting and injuring the officer, disobeying police orders, refusing to give his particulars, breaching the peace and relapsing". These charges need to be proven in court, but in any country they would be considered serious.

The real issue, however, concerns the fact that they have not yet been proven in court. And for some fairly obvious reasons - a magistrate's decision to grant or withhold bail cannot be used as a means to punish the accused. After all, the whole point of a court case is to establish whether a person is in fact guilty or otherwise of a crime. How, then, can we make sense of a situation whereby Josef Xerri has already been meted out a punishment by the courts, for an alleged offence which has yet to be proven by the prosecution?

That said, there are plenty of valid reasons to deny bail in a criminal prosecution. The accused may tamper with the evidence or threaten/influence witnesses or jurors. Fear that the accused may abscond is another frequently cited reason: too frequently, as it effectively means that foreigners automatically find it 90% more difficult to obtain provisional liberty than anyone with a Maltese passport.

None of this is realistically applicable to this scenario; yet the magistrate acceded to the prosecution's request, and pre-emptively 'convicted' a defendant before even hearing the case, let alone finding him guilty. This not only subverts the natural course of justice, but also sets a dangerous precedent whereby bail can be withheld on an utterly frivolous - and, in this instance, legally unsound - pretext.

There have now been far too many of these manifestly absurd injustices for the entire country to keep pretending not to notice. It is time to enact the promised justice reform, before there is simply no more justice left at all.