What chance that Keith Schembri will be home this weekend?

After being remanded in custody upon arraignment last Saturday, Keith Schembri and the other individuals accused will now focus their primary efforts on gaining release from prison by being granted bail. There is nothing unusual about this – anyone incarcerated pending trial or prosecution seeks bail until judgment.

The law is predicated on the idea of bail as a given unless there are reasons for its denial. In other words, a court has to have reasons not to grant bail rather than the other way round. Yet the question of bail in these cases has taken a greater public significance given the profile of the charges and the accused.

This is even more so in the case of Keith Schembri, the highest profile individual among the accused whose case carries weight in politics and society, affecting public perception of the rule of law and accountability. On Friday, when a decision on a fresh bid for bail is likely to be made, all eyes will be on the magistrate.

In making deliberations on bail, a magistrate would have to consider “the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused,” according to law.

The court would then also have to consider the likelihood of the accused, if released, of not observing bail conditions, or of absconding, as well as the chances of committing another offence or tampering with evidence.

In the present cases, different individuals are charged with different clusters of crimes that carry different punishments. From what we know so far, the cluster of charges against Keith Schembri may amount to many years’ imprisonment if found guilty.

This means that the decision on bail may not be the same for different individuals involved, depending on the range and gravity of the crimes of which they are accused.

At least some of the accused are charged with making false declarations or forging documents, and this may weigh on the magistrate’s deliberations when it comes to an assessment of the potential for tampering with evidence, including witnesses.

The fact that the police have said investigations are ongoing increases the potential of tampering with evidence.

The defence lawyers are likely to argue that the evidence is mostly or fully gathered, and hence cannot be impacted in any case.

Then there is the consideration of the possibility of absconding. An analysis on this point is usually made on the basis of the seriousness of the crime (the more serious the crime the greater motivation to make a run), the resources available for absconding (assets or monies abroad, personal resourcefulness and contacts, and so on) as well as what a person would have to lose by staying or running. It is an analysis that is not made in isolation, but as dynamic in the interplay of all the other considerations.

Another point of consideration is that the granting or withholding of bail at any one time is not cast in stone. There is no limit to how many times an accused can apply for bail, although usually, defence lawyers would wait until there is a change in circumstances before reapplying – that change of circumstance can merely be the passage of time. The same magistrate may in fact deny bail at one point and then grant it at some point in the future if the magistrates decides that the changes in circumstances make bail justifiable.

What next, irrespective of bail?

Whether bail is granted or not, and at what stage, the signs are that some of these high profile accused would engage in court battles on technicalities.

Schembri has already launched one such battle in the constitutional court by claiming that the length it took the magisterial inquiry to be concluded, as well as alleged failure to hear some evidence, is a breach of his right to a fair trial.

His lawyers latched onto a provision that specifies that, unless a given magisterial inquiry is concluded within 60 days, the magistrate would have to write to the Attorney General every month thereafter to justify the delay. In the application, they questioned whether this provision is observed in practice.

The previous Attorney General had admitted to The Shift that it is not, but that does not mean that the constitutional court is bound to find the inquiry faulty and nullify it – the court may instead decide to dispose of the case by paying damages to Schembri. Moreover, evidence for criminal prosecution is usually admissible irrespective of whether any obscure provision in law, especially procedural, was breached in its procurement.

Another point raised this week is that Schembri’s lawyers have made a referral, or may do so, to a higher court to plead that Schembri’s fundamental rights have been breached because an accused does not have the opportunity to appeal the denial of bail, as the Attorney General does.

This refers to provisions in law that allow the Attorney General to apply “to obtain the re-arrest and continued detention of the person so released” within a day of granting of bail. It was reported that Schembri’s lawyers are arguing this is in breach of the principle of ‘equality of arms’.

This principle was developed by the European Court of Human Rights to ensure that an accused in a criminal court has the same resources, opportunities and access to evidence as the prosecution to mount a defence. In the case of bail, as already pointed out, an accused can repeatedly apply for bail. Besides, the principle of equality of arms is mainly concerned with elements throughout the case that can have a bearing on the evidence, and hence consequential to the judgement.

In any case, the road ahead is far from clear, and these cases seem destined to evolve into multiple court actions and drawn out proceedings, some of them arising from claims of breaches of fundamental rights.