Holmes claims judgement of his appeal is void

Daniel Holmes, the 36-year old Briton imprisoned for 10 years over drug trafficking, has this morning filed a Constitutional Application demanding that the judgement of his Appeal is declared null and void, as the court failed to adhere to the terms prescribed in the Criminal Code.

In October 2008, the Attorney General ordered that the Court starts the compilation of evidence again, and closes it within five working days, hears the official prosecutor's report under oath, examines without oath the accused, rehears all evidence and witnesses again and returns the records to the AG

The British national argued his fundamental rights were violated when the prosecutor failed to read his report under oath, when the compilation started the second time.

The application states that Holmes was not assisted by his lawyer during the investigation and he was not given access to his police file, since Maltese Law at the time did not include such right.

Moreover, as from his very first arraignment he was represented by a legal aid lawyer. The current situation in Malta provides a restrictive pool of ten legal aid lawyers.

In the case of trials by jury only one legal aid lawyer is available. Such a legal situation does not satisfy the criteria mentioned in the European Convention of Human Rights, as it precludes the applicant from proper and adequate defence.

Holmes also held that the discretion afforded to the Attorney General to decide whether he is to be tried by the Court of Magistrates or to be tried by a trial by jury also violated his rights. The AG has a role of prosecutor with powers to decide how the accused should be tried and which punishment is applicable.

Pointing out at discrepancies in the system, the applicant also argued that in cases where people were convicted of trafficking 2 kilos of the same drug,  such as the Ambrose Zammit case in 2006, the accused was imprisoned for six years and eight months, while in 2012 Godwin Agius was handed an eight year jail term and last year Joseph Buttigieg was jailed for three years and six months.

"The imprisonment parameters related to drug trafficking are from six months to life, hence it is very difficult for any judgement to be deemed as being outside the parameters of law," the application read.

Given the absence of a Maltese Supreme Court, the Court of Appeal has to evaluate not only if the punishment mitigated is within the parameters of law but also if it is proportionate with the offence.

The constitutional application requested the court to declare that these issues violate the rights to a fair and impartial hearing. The applicant asked the Constitutional Court to pronounce that the judgement delivered by the Court of Criminal Appeal on 31 October 2013 is null and void.

Daniel Alexander Holmes was jailed for 10 year, six months and fined €23,000, after facing five charges of drug possession and trafficking, four of which carried a life sentence, related to the discovery of a cannabis plant in his Gozo home. Holmes had admitted to all charges ahead of a trial by jury.

Lawyers Franco Debono and Michaela Spiteri signed the constitutional application.