A young man who suffered a miscarriage of justice and spent almost two years jailed in Malta before gaining his release has recently returned home to London. For Elton Gregory Dsane, 25, the ordeal began as soon as he landed on Malta on the evening of 30th April 2019. He never made it outside the airport as a free man.
Dsane had travelled to Malta for the popular Lost and Found Festival, a four-day rave party put up by British DJ Annie Mac. On the flight from Luton, Dsane made new friends among the fellow ravers that packed the plane.
Meanwhile, waiting at the airport, Inspector Kevin Pulis and a clutch of colleagues from the drugs squad, all in plain clothes, loitered near the escalator that led to baggage reclaim. The inspector later told the court that they were on the lookout for five young men whom, according to a tipoff, would be importing drugs into Malta.
Dsane and some of his newfound friends, five of them in total, were bantering through the airport when the plain-clothed police officers rounded them up. They searched them and, failing to find anything, bundled them into a police van to take them for an X-Ray.
Two of them panicked and defecated in the van – in the excrement the police found capsules containing 58 grams ketamine, 13 grams of cocaine, and 21 grams MDMA. The police began to interrogate the two – Dsane and another Londoner named Usumah Hajjaj – at around 2am, and released the other three.
Dsane asked to appoint a lawyer, but the police allegedly told him that his money would be confiscated on being found guilty, and hence he could not afford to pay for a lawyer. Instead, they hooked him up with a legal aid lawyer, who advised Dsane and Hajjaj on the phone to admit to nothing.
That same morning, a public holiday, the two were arraigned and charged with ten crimes, including conspiracy to import and traffic drugs.
In court, they found a different legal aid lawyer than the one they had spoken to the night before. Among other things, he informed them that they would get a lesser sentence if they admitted.
Disorientated by the fast-moving events and a sleepless night, Dsane and Hajjaj wanted proceedings to get over with so that they could – they hoped or believed – be repatriated to the UK to serve any jail time there.
They admitted to all charges. The sentence was summarily delivered: four years and €1,000 fine each.
Upon realising the severity of the sentence, Dsane went into a frenzy and he had to be taken to Mount Carmel Hospital, a mental health hospital.
Miscarriage of justice
The chilling details of the young men’s ordeal have since emerged in drips in the course of multiple court proceedings over the past 18 months, especially in the case of Dsane, whose case eventually escalated all the way to the Constitutional Court.
Analysis of court proceedings reveals that the police never proved the headline charge – of conspiracy or, as it is technically known in law, “association” to import and traffic drugs – and neither did they prove that the drugs weren’t for personal use.
The crime of “association” requires proof of a criminal plot followed by tangible moves to put the conspiracy into play. Yet no evidence existed that Dsane and Hajjaj were connected: they had bought the flight tickets separately, booked to stay in different places in Malta, and said to have only met on the flight.
The police also had no right to deny the arrestees’ wish to appoint a lawyer of their choice. At that point, the young men were suspects, their cash had not been confiscated by a court.
Yet the greatest blame for the miscarriage of justice lies with the legal aid system, which works particularly inadequately and chaotically in criminal cases.
In a report three years ago, the civil society organisation Aditus Foundation had particularly criticised the situation in which an accused only gets to meet his or her legal aid lawyer upon arraignment. A lawyer who meets his client in court just before the hearing would hardly have sufficient time to study the case and points of law.
Moreover, the State-funded lawyers are given 24-hour cyclical turns of duty, and since there are 18 of them – each being on duty every 18 days – if a case takes more than one hearing, the probability is that an accused would be represented by a different lawyer on each occasion. Each lawyer would have to familiarise himself with case and status details; each might have different ideas on strategy.
In the case of Dsane and Hajjaj, the first lawyer told them on the phone to keep mum. Several hours later, after consulting with the second legal aid lawyer, they decided to admit to all charges in the understanding of calculus that they would get a more lenient sentence.
Incredibly, the lawyer who met them in court did not look through the police file to assess the evidence, as is standard practice and the right of the accused. The lawyer later told the court that he relied on a briefing by the police inspector – of course, the prosecuting inspector’s instinct is to argue his case, to get a conviction – without seeing the evidence.
Dsane’s fortune takes another downward turn
At this point, after summary conviction on 1st May 2019, the fortunes of the two diverged.
Hajjaj appealed and, on 27th February 2020, the judge Consuelo Herrara reduced his sentence from 4 years to 18 months.
Dsane missed the legal time-term to appeal because, he said, he had no money in prison to call his parents. He only managed to make a phone call to his mother when a fellow prisoner gave him some money.
Instead, he filed a case in the lower constitutional, where Judge Toni Abela held that his fundamental rights had been breached, and reduced his sentence to 18 months. He was represented by Peter Fenech.
Both judges – Hererra and Abela – criticised the legal aid system and pointed out that Malta has failed to implement an EU Directive on legal aid designed to prevent the kind of miscarriage of justice that had arisen in this case. That directive had been published on 26th October 2016, with a deadline for transposition into national legislation of 25th May 2019 – yet 19 months after passage of deadline, Malta has yet to transpose its legal provisions and implement its measures.
Even at this stage, Dsane did not gain his freedom. The State Advocate appealed, and he had to wait another nerve-wracking eight weeks before the higher constitutional court reconfirmed the breach of the so-called ‘right of disclosure’ – in common parlance, the evidence against the accused was not shown to his lawyer.
The higher constitutional court then sent the case to the criminal court again, where Judge Aaron Bugeja delivered a lengthy sentence last October, reducing his imprisonment from the original four to two years – and a speedy release.
Sentences highlight the severity of Malta’s drug laws
Dsane and Hajjaj both separately admitted to the drugs each possessed.
Hajjaj had 13 grams of cocaine and 21 grams of MDMA, with a combined value, according to the court, of almost €1,600. The amount makes it evident that if the intention was to deal – in Maltese law, the propensity is that a quantity of drugs above a set threshold is taken as trafficking – it would be small-time dealing. If he had sold the drugs, there would not be much money left after Hajjaj would have paid for flights, accommodation, festival tickets, food and drink, and other expenses (taxis, for example).
In the case of Dsane, the court estimated the street value of the 58 grams of ketamine to just over €2,300 – and similarly, if all of it had to be peddled, Dsane would not be getting rich soon out of such business.
The facts of the cases and other circumstantial evidence support the theory of young ravers, in their heady years, having drugs in sufficient quantities for bingeing as well as sharing or a doing a spot of dealing to recoup the cost of the weekend bender in Malta.
If anything, even after the reduction of prison terms, a jail term of 18 months and two years respectively are a reminder of the severity of Malta’s drug laws, among Europe’s harshest.
Elton Gregory Dsane did not reply to an email seeking comment sent through his lawyer.
Tomorrow: Malta at odds with Europe on the flawed legal aid system
Victor has worked in publishing in various countries for the past thirty years. His work has been published widely, and he has churned out a varied body of work including a range of columns, essays, travel and food writing, and journalism. Back in Malta for the past several years, he has mostly dedicated himself to journalism.
Share with someone who needs to hear this story