‘Discrimination can only be established when one compares like with like.’
Franco Debono has petitioned the court to declare that those who are held on remand to await trial should have the right to appeal against the decision, just as the Attorney General has the right to appeal when the court decides otherwise.
The court has now ruled that yes, defendants have the right to appeal against a decision to hold them on remand, based on the principle of ‘equality of arms’ (if the prosecutor can appeal, so can the defendant).
This has been hailed as a landmark judgement and Franco Debono is celebrating. But former European Court of Human Rights judge Giovanni Bonello is not so sure, and has told The Times that he is “not entirely convinced of the reasoning that led to it”.
He said:
“Granting bail, besides affecting the accused, brings with it a series of societal issues, as it results in a potential criminal being let free, and the possibility of intimidation of witnesses, suppression of evidence, risk of absconding.” Denying bail, on the other hand, affected only the accused. “Are the two situations equal and comparable? Discrimination can only be established when one compares like with like.”
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I was asking myself the same questions.
We need some explanations from lawyers.
An accused is granted bail or otherwise after the hearing of the compliation of evidence. The magistrate decides on that evidence and on the submissions of the defence lawyer and prosecutor.
If there is going to be an appeal, on what new evidence is a different magistrate going to decide differently from the first one.
Does it boil down to a different interpretation of law by different magistrates?
To be fair, there is something I do not follow in Judge Bonello’s comments – could it be sloppy reporting by The Times?
If I understand well, Dr. Debono’s petition to the Constitutional Court was based on establishing the principle of equality of arms, whereby the defence and the prosecution are given procedural equality, and unless I am missing something, this is not the same as discrimination.
In fact, if I understand well, the judgement determined that the accused has the right of appeal if the accused is remanded, and not the right to be granted bail.