Suspect who consulted a lawyer needs no written waiver

The Court of Criminal Appeal (Inferior Jurisdiction), presided by Madam Justice Consuelo Scerri Herrera, delivered judgment in Il-Pulizija vs K.M. on 26 February 2026. It held that a suspect’s police statement is admissible without a written waiver where he consulted a lawyer before questioning. It then acquitted him of human trafficking and three related charges, and the eight-year prison term fell with them.

The facts

The appellant and his wife hired a domestic worker through an agency abroad, and she came to Malta in 2018 to live and work with the family. In July 2018, after a report to the police, she left the home. According to police witnesses, she said that she was paid far less than her contract stated, had no day off and that the appellant kept her passport.

The prosecution relied in part on a second contract that, she said, she was made to sign on the way to Malta. The appellant denied her account. He testified that he paid her the contract wage in cash, that she worked about six hours a day and that he held the passport only to obtain a visa.

On 6 October 2025 the Court of Magistrates (Malta), sitting as a court of criminal judicature, rejected his objections to his statement. It found him guilty of trafficking a person for forced labour under article 248A of the Criminal Code (Chapter 9 of the Laws of Malta), a false declaration to a public authority, receiving a passport transferred by another person and breaching conditions of employment.

It sentenced him to eight years’ imprisonment and ordered him to pay the worker €4,849.30.

What the court held

The appellant argued that his statement was inadmissible. He had spoken with his lawyer before questioning but, he submitted, was never told he could have the lawyer present, and no waiver was recorded in writing before two witnesses under article 355AUA(6).

The court held that a suspect may consult a lawyer before questioning and may also have the lawyer present during it. Yet article 355AUA(6) calls for a written record only where the person seeks no legal assistance at all: “Il-liġi timponi biss li għandu jkun hemm tali dikjarazzjoni ta’ rinunzja meta l-individwu jirrinunzja ghal kollox mill-assistenza legali, kemm qabel u anke waqt l-istqarrija” (The law requires such a declaration of waiver only when the person gives up legal assistance entirely, both before and during the statement).

The court added that the law might need amending so that a declaration is taken in these cases too. It ordered that the judgment be sent to the Minister for Justice.

On his complaint that he did not understand Maltese well enough, the court noted two remedies: a report within 48 hours under regulation 4 of Subsidiary Legislation 9.24, and an immediate request under article 355AUI(1). Neither can be used for the first time on appeal. The ground failed.

On trafficking, the court set out three cumulative elements under articles 248A and 248E: the act, the means and the purpose. The act was not in dispute, because the appellant employed the worker and facilitated her residence in Malta. The means, such as deceit or abuse of a position of vulnerability, form an exhaustive list and must be proved beyond reasonable doubt.

The court found gaps in the prosecution’s evidence. Police witnesses gave different accounts of where the second contract was signed. No proof was produced that the appellant went with the worker to deposit only €300, no expert examined the photograph of the contract on her phone, and no search was made of his home or office.

It found a reasonable doubt about the true use of the second contract and gave the benefit of that doubt to the appellant. For the same reason it acquitted him of the false declaration.

The passport charge failed on article 11 of the Passports Ordinance (Chapter 61 of the Laws of Malta). The transfer took place abroad, and the passport was not issued to a Maltese citizen.

On the employment charge, Jobsplus evidence showed that no engagement form was sent, but the appellant was never charged with that breach, and Subsidiary Legislation 594.17 carries its own penalties. The court acquitted him of every charge.

Why it matters

Where a client spoke to a lawyer before questioning, a missing written waiver will not by itself exclude the statement. Complaints about questioning must be raised at once under article 355AUI(1) or within 48 hours under S.L. 9.24, not saved for appeal. In trafficking cases the prosecution must prove the means with evidence it could have gathered: documents, searches and expert analysis.

Where it sits

Article 355AUA(6) reflects article 9 of Directive 2013/48/EU on access to a lawyer, as the appellant pointed out. Trafficking in Maltese law follows the three-part structure of the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings. The court quoted the explanatory report to that convention on vulnerability, forced labour and consent.

The appellant relied on the Court of Magistrates (13 January 2020) and the Court of Criminal Appeal (30 October 2023) on waivers, but the court read article 355AUA(6) more narrowly. On the elements of trafficking it cited the Court of Criminal Appeal (14 February 2023), (16 February 2021) and (6 January 2023), and, through the explanatory report, the European Court of Human Rights (23 November 1983).

On the standard of proof it cited the Court of Criminal Appeal in its superior jurisdiction (24 April 2003) and the Court of Criminal Appeal (5 December 1997). On circumstantial evidence it cited the Court of Magistrates (16 December 2015).

Source

Court of Criminal Appeal (Inferior Jurisdiction), 26 February 2026, 442/2018/2