Magistrate turns down investigation into court documents leak

A magistrate has refused to order an investigation into the leaking of court documents to the press, saying the oppression of journalists who were carrying out their duties had no place in a democratic society.

Magistrate Joe Mifsud, who is presiding the magisterial inquiry into the death of 17-year-old factory worker Matthew Bartolo, who tragically lost his life after an accident at Construct Furniture's Luqa factory in 2015, made the ruling almost two weeks after Construct Furniture's director, John Agius, his daughter Amanda Cefai and her husband James Cefai had filed an application asking the courts to order the Commissioner of Police to investigate the leak of parts of the inquiry which ended up on the front page of The Sunday Times of Malta.

The newspaper had reported the inquiry as having concluded that company director John Agius should face criminal charges and that Amanda and James Cefai would also be facing the same criminal charges.

They had argued that the inquiry's conclusions had been published in the media before they had even obtained a copy and could potentially prejudice their defence and create an obstacle to the proceedings.

The Attorney General's Office had told the court that it had denied several requests for access to the file as this “could cause irreparable harm to the investigation.” None of those requests had come from the media, it specified.

The Commissioner of Police had also filed a reply, formally denying any police involvement in the leak. However, he also pointed out that the police had not been asked for any information on the investigation by the media, either.

In his decree denying the request, Magistrate Mifsud first gave a thorough academic background to the issues at stake. He began by highlighting the delicate distinction between an inquest and the Court of Magistrates as a Court of Criminal Inquiry. The magistrate's task during the inquest was to compile the evidence into a report known as a procès-verbal, explained the court, exercising a personal power emerging from the office of magistrate and not as a person presiding a court.

The magistrate then highlighted various instances where journalists are robustly protected at law, saying that the Criminal Code precludes the police from demanding access to “journalistic material which a person holds in confidence,” as well as from halting a vehicle to prevent a crime punishable under the Press Act and from carrying out searches or arrests based on reasonable suspicion of a crime under the Press Act.

Further driving the point home, the magistrate reproduced in its entirety article 10 of the European Convention of Human Rights, which advises “great care in assessing the need, in a democratic society, to punish journalists for using information obtained through a breach of the secrecy of an investigation ... when those journalists are...playing their role as “watchdogs” of democracy.”

In Guja v. Moldova the European Court of Human rights had commented on the importance of protecting a journalist's sources. Failure to do so would have a chilling effect on the exercise of press freedom in a democratic society, which is incompatible with the European Convention unless justified by an overriding requirement in the public interest, the magistrate said.

Turning to local case law, magistrate Mifsud made reference to the 2002 decision in Commissioner of Police George Grech vs Director General and Registrar of Courts and the Attorney General, a case that also dealt with the publication and broadcasting of the progress of a magisterial inquiry, which, it said, is intended to preserve the evidence, but it takes place in great secrecy and can in no way be considered a trial. “During the inquiry, there is never a judgement on the guilty or innocence of the person being investigated. This leads to the fact that an inquest or investigation is not equivalent to an indictment or criminal process” as there is no person accused.

After making plain the reasoning behind the decree, magistrate Mifsud refused the request.

“The journalist's report deals with a very small part of the inquest,” he said, “and nobody in a democratic society should expect an inquiring magistrate to order the police to oppress journalists in the course of their work ... There are other for a where journalists are scrutinised but not in a magisterial inquiry.”