War on drugs ‘not won by the number of arraignments’ – Mallia

Revelations that many 'drug possession' cases brought before the courts will not be based on actual possession, but only verbal admission of past drug use, have exposed an apparent contradiction between government's stated drug policy and the law enforcement policies enacted by the police with regard to drug possession.

In comments to MaltaToday, criminal lawyer Joseph Giglio this week said that as many as half of drug possession cases brought before the courts will have been based only on a verbal admission of past drug use - and not because the suspect will have been apprehended in possession of drugs.

Attention was drawn to this state of affairs by a recent case, in which Goran Stoyanovich, a 33-year-old Maltese resident of Serbian origin, was charged with possession of cannabis on the basis of having admitted to the police under interrogation that he had smoked cannabis in the past.

Giglio said that Stoyanovich's case - which elicited reactions of outrage and disbelief among MaltaToday readers - was in fact 'business as usual' for the police: "I would say a good 50% of all drug possession cases do not involve drug possession at all, but are in fact based only on admissions by the accused," he said.

At a glance this practice appears to directly contradict government's declared aim of reforming the justice system with a view to expediting justice and ironing out such anomalies.

This policy direction was summed up by junior Justice Minister Owen Bonnici, who responded to queries about decriminalisation by stating, "If someone is caught with a joint, he or she shouldn't go before the court of magistrates. Still less should there be wild discrepancies in sentencing, with some magistrates giving conditional discharges and others handing down hefty sentences... If someone has a health problem he should go to a doctor, not be dragged in front of a magistrate."

Bonnici's argument against criminalising drug users is supported by the findings of the Justice Reform Commission, headed by retired European Court judge Giovanni Bonello.

It also appears to enjoy the support of the Opposition, whose Shadow Minister for Home Affairs, Jason Azzopardi, told MaltaToday that he was in total agreement with a very similar policy proposed by former Minister Carm Mifsud Bonnici in November 2011.

"In Bill 97, the government had proposed, in brief, that in cases of simple drug possession (i.e., NOT trafficking) of a first time offender, the person concerned be referred to an institution such as Caritas or Sedqa instead of being arraigned in court," Azzopardi said. "This radical change in the procedures obtaining then and to date had the full support of Caritas and Sedqa, and would have meant that proper follow-up be the order of the day in cases of simple drug possession, thus nipping in the bud an inclination to drug-taking by the individual concerned, and also avoiding these cases being perceived as inflating the statistics of court arraignments by the police."

However, he continues, history got in the way of the proceedings.

"Regretfully, as you know, the then-Opposition voted in favour of a motion of no confidence in the then-Minister Carm Mifsud Bonnici, and thus Bill 97, which had a plethora of beneficial innovations in the Justice and Home Affairs sector, was truncated prematurely."

But Home Affairs Minister Manuel Mallia, who is directly responsible for the police, argues that any change to the law should only be carried out if it can be demonstrated to reduce the incidence of drugs.

"In the minister's opinion a detailed study on the effects of drugs on the Maltese community must be commissioned," a spokesperson told MaltaToday.

"Any changes to the present laws must only be done if this will result in fewer persons who use drugs, fewer persons who ruin their lives and fewer persons who die because of drugs. The fight against drugs is not won with the number of arraignments, but with these effective results."

This statement comes only two months after Minister Mallia, together with Social Policy Minister Marie-Louise Coleiro, informed the press that, according to the European Monitoring Centre for Drugs and Drug Addiction, Malta has among the highest incidence of drug use among school-age children in Europe - thus confirming that the present police policy of treating drug users as criminals has not only failed to combat drug use, but may have even exacerbated the problem.

Nonetheless Minister Mallia avoided answering direct questions about the apparent policy of basing prosecutions only on verbal admissions to the police. "The police are the body who executes the law," was his enigmatic reply. "The number of drug arraignments depends only on the hard work of the police, who have the duty to see that everyone respects the present law as it stands."

Doctors obliged to report drug users 'only if lives are at risk'

It is not just the police whose drug policies have been criticised in recent weeks. Similar complaints have also been raised about the apparent collusion of the medical establishment with the police, in criminalising drug users who seek medical aid at hospitals or polyclinics.

This week it was reported that doctors were 'expected' to pass on details of patients who use drugs to the police, with the result that these may be prosecuted after seeking medical help.

On their part the police confirmed receiving reports from doctors of patients suspected to have used or abused drugs.

Dr Giglio, who raised the alarm on this practice last Thursday, argues that it directly puts people's lives at risk, as persons suffering from potentially fatal drug overdoses may not receive medical assistance for fear of reprisals.

Efforts to elicit an explanation from the Medical Council of Malta this week proved futile. But doctors who spoke to MaltaToday on the condition of anonymity explained that even though a legal obligation to report does exist, the obligation is limited and, in most cases, passing on medical information to the police is technically illegal and a breach of doctor-patient confidentiality.

"The police have to be informed only if the patient's life is at risk, or he has had grievous bodily harm secondary to his drug or alcohol use. So those involved in motor vehicle accidents, overdoses, suicide attempts, are found unconscious and then found to be under the effect... these cases will be referred to the police."

Moreover there are medical reasons to enquire about a patient's drug use: examples include patients who contracted HIV from shared needles or who need different antibiotics post-op, or anaesthetists needing to give higher doses of anaesthetic to patients who are habituated to opiates on account of their drug addiction.

"However, it is unethical and illegal if the doctor reports the patient, as it would a breach of his confidentiality."

In practice, the situation works out like this: "If, for example, a patient goes to A+E with an asthma attack, and while being examined is asked if he or she is a drug user (they have to be asked that question for a number of valid reasons) and replies in the affirmative, then that doctor has no legal obligation nor any right to report the patient.

"But on the other hand, if a patient is taken to hospital after being found unconscious, and a blood or urine test shows traces of an illegal substance or a high blood alcohol level, then the patient would have to be reported."