Jurors Have Rights Too: Who Is Protecting Their Private Correspondence?
In the Maltese vlog below, I defend jurors’ right to freedom of expression and their right to keep their private chats private. Unfortunately, the Attorney General and the local press, including media financed by the Roman Catholic Church, are now promoting the idea that serving on a jury means surrendering the right to a private life or freedom of expression.
In this vlog, I emphasise that when jurors complete their work, they remain citizens with opinions, friendships and the right to communicate privately. Those rights deserve protection even when their opinions are unpopular and their verdict did not follow the prosecution’s official narrative or that of the Caruana Galizia family.
That is my starting point in responding to Jacob Borg’s report in the Sunday Times of Malta on 11 October. His account says that the jurors’ WhatsApp group was established two days after Yorgen Fenech’s acquittal. It quotes one participant saying, “not even her children mourn her”. The report also concerns earlier social-media posts and alleged failures to disclose them to the court. These different matters must not be conflated. However, as explained in another blog, the prosecution should have raised this concern during the trial, not after the verdict had been delivered.
One can find a remark offensive without concluding that it proves a criminal offence or invalidates a verdict. Equally, a private comment made after a trial can sometimes shed light on an earlier state of mind. At least one of Jacob Borg’s published comments helps explain why Yorgen Fenech was acquitted. He was acquitted not because, as some implied, he bribed the jury, but because members of the jury did not believe the prosecution’s main witness, Melvin Theuma. Even though the presiding judge referred the proceedings to the police, Melvin Theuma, a drug trafficker and extortionist, continues to be protected by the state.
The principle is that completing jury service does not impose a lifelong obligation of silence. Any continuing restriction needs a proper legal basis, which the Maltese legal system lacks. The Caruana Galizia family and their followers have a right to freedom of expression, but the same principle applies to jurors once they have finished their work.
However, another question deserves at least as much attention: how did private messages reach the media?
The fact that investigators obtain correspondence does not automatically make that correspondence public property. Access for an investigation and disclosure for publication are different acts, requiring separate scrutiny. What safeguards protect the people whose phones are examined? Who had access to the material? To my knowledge, this evidence was not disclosed in open court. In other words, it was an unauthorised disclosure of material held in official custody. What is being done to investigate it?
These are legal questions, not merely complaints about bad manners. Article 8 of the European Convention on Human Rights protects private life and correspondence. Public authorities may interfere only if they have a lawful basis, pursue a legitimate aim, and act in a manner that is necessary and proportionate. Article 10 protects expression while also recognising duties and responsibilities. Neither provision disappears when someone serves on a jury.
The European Court’s judgment in Craxi v. Italy (No. 2), delivered on 17 July 2003, is particularly relevant. Newspapers had published private intercepted conversations. The Court found a violation of Article 8 because the authorities failed to safeguard the transcripts and failed to conduct an effective investigation into their disclosure. Some published material had little or no connection with the criminal charges. Thus, I encourage the jurors whose chats were published to sue The Times for damages.
In the vlog, I also asked Jacob Borg a direct question. I asked him to confirm or deny whether the Daphne Caruana Galizia Foundation is paying him. I hope to receive an answer.
However, other points in Jacob Borg’s article need scrutiny.
Why did the media fail to identify the judge or magistrate who authorised access to these private messages, assuming that such access was authorised by a judge or magistrate? The report does not establish that a judicial officer ordered the “decoding” of these chats. In my opinion, this story will continue to erode the Maltese people’s trust in the judiciary.
My concern about public confidence also comes from personal experience. I lost a libel case brought by Manuel Delia, although I had called a witness to support my account. The judgment was upheld on appeal. I disagree with the outcome, but I acknowledge that the courts rejected my defence and found the publications defamatory.
Meanwhile, while my appeal was still pending, Keith Schembri discussed the same case on Ricky Caruana’s podcast and was not sued over those remarks. I consider that contrast worthy of examination. In my case, it suggests that our judiciary, or a section of it, serves not justice but the Caruana Galizia family and their acolytes.
What I experienced went beyond losing a case. Archbishop Charles Scicluna then delivered a sermon about truth and deception in the academic community that was deliberately intended as a direct attack on me. Indeed, contemporary reporting, including coverage by media financed by the Archbishop himself, explicitly linked it to my case. I also recall calls from people in the Archbishop’s entourage demanding my removal from the University.
It is about time the authorities investigated any substantiated misconduct and any substantiated unlawful disclosure of private information. If this fails to happen, confidence in Malta’s justice system will continue its free fall. More and more people are realising that certain magistrates and judges serve the Daphne Caruana Galizia Foundation rather than justice. They know that, following the reforms introduced at the suggestion of the Venice Commission, the only way to secure promotion is to support the Foundation’s agenda.