‘Get real, this is not TV’ – how a minor drug charge exposed serious flaws in the justice system

The case against Daniel Holmes - whose final appeal is set for today, 4 July - has not only exposed Malta to international attention on account of apparent discrepancies in Malta's drug law regime. It has also revealed glaring anomalies in the legal aid system which may amount to a human rights violation.

Holmes is currently serving an 11-year sentence (complete with €23,000 fine) after pleading guilty to the cultivation of cannabis in his Gozo apartment. He was arrested in 2006 but would spend five years awaiting trial, as well as a further two years awaiting appeal.

The sentence was widely criticised as excessively harsh, given that Holmes had admitted cultivating for personal use only and that the prosecution had failed to provide any hard evidence of actual trafficking. Moreover, the severity of the sentence meted out to Holmes stands in stark contrast to much more lenient sentences handed down for often much more serious crimes: including domestic violence and even attempted murder.

Among others, these factors have resulted in a global petition calling for a revision of his sentence, which has attracted over 5,000 signatures from various parts of the world.

Meanwhile, other discrepancies have since emerged. In comments to MaltaToday's sister paper Illum last Sunday, Daniel's father, Mel Holmes, revealed a hitherto unknown detail: after his arrest, Holmes was initially denied access to a lawyer, despite requesting to be provided one through the legal aid system.

"From the start, on 19 June 2006 (yes, seven years ago!) when he was arrested, [Daniel] admitted using and cultivating cannabis," Mel Holmes said. "He was, however, denied a lawyer while the police were trying to get an initial statement. He says that when he asked for one he was told to 'get real, this is not TV'."

Mel Holmes adds, "In the initial questioning by the police he thought he was being honourable by not saying anyone else was involved. He did not know that the police had actually been watching the other man, not him. After years of asking to make a fresh statement he wrote one himself and handed it to his lawyer in 2008. This statement has still not been presented to the courts."

Failure to be provided with a lawyer through the State's legal aid system is universally (at least, in functioning democracies) recognised as grounds for a mistrial. And by sheer coincidence, it was reported just yesterday that a man charged with theft from a PN club 10 years ago was acquitted specifically because he had had no access to a lawyer when the police took his statement.

There have been a number of similar acquittals ever since it was established that legal assistance during interrogation is, in fact, a requirement for a fair trial in Malta, as elsewhere. Strangely, however, Holmes was convicted in 2011 - the year is significant, because it occurred after Malta, in 2010, finally ratified a legal provision to ensure the right to legal access while under arrest - despite almost identical circumstances.

Nor is this the only apparent discrepancy involved in the case. Mel Holmes also observes that Holmes had been advised to plead guilty, not just by his lawyer (he was finally provided with one for the trial) but, unconscionably, also by the presiding judge, who went on to deliver such a harsh sentence, even after advising the accused to enter a guilty plea.

"After pleading guilty, on the advice from the judge and his lawyer, he was given a 10.5 year sentence and a €23,000 fine, despite the facts that a) Daniel was not the sole owner of the plants - he was co-accused with another man [Barry Charles Lee], who committed suicide the day after he was given his indictment to the Criminal Court threatening five life sentences - and b) after the prosecution had examined Daniel's mobile phone records, bank accounts and day-to-day activities, there was still no evidence that he had been selling or intending to sell the cannabis." 

Talking to this newspaper yesterday, Mel Holmes reiterated his personal surprise at the fact that the judge would first encourage a guilty plea, then proceed to throw the book at Daniel Holmes anyway.

"It was surprising to me that the judge, having pointed Daniel in the direction of pleading guilty, in order to save the court time and resources, would then go onto disregard the complete lack of evidence of any trafficking and give him the full sentence for trafficking regardless..."

Mel Holmes also explains that he has since asked several local lawyers for an explanation as to why his son was denied legal assistance and still convicted, when the law at the time was clear on the point that legal assistance was required for legal prosecution.

"Not one of them ever got back to me," he told MaltaToday.

And yet, access to a lawyer of one's choice is a right safeguarded by numerous treaties to which Malta is a signatory state. The UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), for instance, observes that legislating for safeguards such as prompt access to a lawyer is one of the best ways for States to fulfil their obligation to take such effective measures.

The UN treaty bodies - specifically the Human Rights Committee (HRC) and Committee Against Torture (CAT) - have also specifically recognised this safeguard as essential for the prevention of torture and other breaches of fundamental human rights. (In fact the Maltese government was pressured to introduce these safeguards by the Council of Europe's Committee for the Prevention of Torture. The legal notices were passed in 2004 and eventually ratified in 2010 - before Holmes's conviction in 2012).

Moreover, in 1990 the United Nations revised its provisions for the rights of persons in custody to also include access to legal assistance, observing that "1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

"2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.

"3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.

"4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers."

It would seem that Holmes's case is but one of several which are now under the spotlight for an apparent breach of some of the basic, entry-level judicial requirements.

Lawyer Michela Spiteri - who also runs a website (www.without-prejudice.org) aiming to explain the justice system to outsiders - remarks that the State's legal aid system is not functioning on a number of levels. It is not just that statements are often taken in the absence of any legal advice - as was the case with Daniel Holmes - but it transpires that Malta has only partially implemented the legal provisions in question.

"Unlike the situation in the UK... where all available evidence against the suspect is disclosed and made available to lawyers during the interrogating stage, the right to legal assistance in Malta is the biggest mirage and con of them all," Spiteri writes.

"What the police don't tell you is that they are not obliged to disclose any information to lawyers, who therefore know precious little as to why you have just been arrested and in reality can't be of any legal assistance whatsoever. The only thing that a lawyer can and should tell you, if you've just called him up, is 'you've just lost your right to remain silent mate, be very careful what you say'."