Double jeopardy – apparently, it isn’t quite

I reproduce below what was part of my column in The Malta Independent on Sunday, yesterday. That same evening I received an email from somebody who is – how shall I best put it? – something of an expert in the field.

Here’s what he told me:

Re the recent acquittals after prosecution errors: issuing fresh charges would NOT breach the European Convention on Human Rights, which specifically allows the reopening of criminal proceedings after acquittal (a) when fresh evidence is discovered; (b) where there has been an error which could affect the outcome of the proceedings.

But then we would need an ingenious judge.

This is what Article 4 (2) of the European Convention on Human Rights says.

ARTICLE 4/Right not to be tried or punished twice

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

——

So, the upshot of the matter is that the European Convention on Human Rights DOES allow for the reopening of a case if there is new evidence/facts – contrary to what the legal experts quoted unquestioningly by The Times said a few days ago. The difficulty lies with the proviso “in accordance with the law and penal procedure of the State concerned”, for it is our own Constitution which does not allow it.

But as my interlocutor said above, the European Convention was not designed to aid and abet criminals and corrupt police officers, but rather the opposite. This article in the European Convention was designed to protect people from police abuse and not to protect abusive police officers from being brought to justice. Oh, the irony.

Anyway, this was my column yesterday.

———-

I had been thoroughly pleased to hear that the police fully intended to prosecute, once again and this time using the correct information on the charge sheet, the three police officers and their bouncer friend for beating up that poor student. I wrote about this in my column last Thursday.

Now I read, to my great dismay, that this might well be impossible, after all, because the Constitution and the European Convention on Human Rights does not permit such a thing.

Given a great deal more thought than I gave the matter when writing Thursday’s column, I can see now that this would be right, because it is designed to protect people from state and police abuse. Sadly, in this particular case it protects abusive police officers from being brought to justice.

It makes us furious (except, of course, for those black-shirt types who rally behind Joseph) but perhaps we just have to tell ourselves that this is the price to be paid for greater guarantees for freedom.

It’s the same as with democratic elections in which we sometimes get the government that the stupid, ignorant and deliberately wilful deserve. But it’s a whole lot better than any other system yet invented.

But I have to say that in this particular situation, it’s maddening. One hopes that at least the police authorities will provide for the disciplining of these men within the force itself.

And if they can be sacked on the basis of the available evidence, do please sack them. The police force is held in enough contempt as it is – except by the pseudo black-shirts (surely that ‘r’ is redundant) who support our Joseph.
Oh, but I thought we were starving

The Labour Party does its best to convince us that we’re starving, but now the European Commission has said that Malta’s economy is expected to perform much better than the Eurozone average.

I know who I’m best prepared to believe.