Consuelo Herrera strikes again

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2019-02-22T08:52:37+01:00Fri, 22nd Feb '19, 08:52|0 Comments

The case of a businessman who collected almost €90,000 of VAT and pocketed it instead of passing it to the taxman is another shocking indicator of the collapse our law enforcement and justice system.

Judge Consuelo Scerri Herrera has this week let the gentleman concerned, Charles Le Brun, walk away free and keep the money he stole twelve years ago with years of expenses of police and court time flushed down the drain.

The cost to taxpayers of not punishing in any way a fraudster who swindled his customers who thought they were paying tax is many times greater than the money he actually swindled. His acquittal on appeal this week in no way puts into doubt the fact that he stole the money. He was acquitted instead on a fictitious technicality that has no basis in law and that neither Mr Le Brun nor his lawyers ever thought of suggesting could justify letting him go free.

Instead, Judge Scerri Herrera in her decision this week conjured from scratch a fresh argument for the defence argued in favour of the individual appealing to her court and decided in favour of her own arguments.

The judge ruled that when Charles Le Brun was charged in 2007 he was not described as the director of the company he owns, Cleanwell Ltd. Though it is not disputed that he used this company to swindle just under €90,000 of VAT, this missing detail in his charge sheet was the argument the Judge used to acquit him.

A company is considered a “juridical person” at law but that is just a fiction of the law that is not intended to excuse a criminal when he uses their company to commit a crime such as fraud. A company may be a juridical person but it has no mind, hands and feet of its own. Its sole owner and director is responsible when he uses that company to commit a crime.

Even Mr Le Brun and his lawyers appeared to understand this. When he was ultimately dragged in front of the Magistrates Court he did not plead the argument that he was charged incorrectly. Nor did he even argue this in front of the Court of Appeal that Judge Consuelo Scerri Herrera was presiding.

In fact, when Magistrate Marse-Ann Farrugia first convicted Charles Le Brun, he gave altogether different arguments in his defence, namely that though he had invoiced the amounts he had never actually collected them. The court found Mr Le Brun had not proven this and found he had instead used VAT money he collected to keep his business going. That is a crime and he was sentenced to two years in prison suspended for four years and ordered him to pay the €85,000 in VAT he had collected to the taxman.

That sentence was overdue because, for years before this punishment was ordered, law enforcement was unforgivably half-hearted in chasing him for money he stole from the public.

He was charged in August 2007 and the case was scheduled to start in November of that year but the police could not produce Mr Le Brun because “he was abroad”. It wasn’t until 2017, 10 years later, that Mr Le Brun was stopped at the airport and brought to face judgement. The case against him was decided in September of that year.

Appealing the decision in front of Judge Scerri Herrera, Charles Le Brun argued his case was time-barred: in other words that he had given the police the slip for 10 long years and that should have been enough for the justice system to give up on him.  He also argued that the police did not prove he actually pocketed the tax he collected.

That was it. He never argued there was a mistake on the charge sheet he was charged or that he was not responsible for the criminal acts of his own company.

But Judge Consuelo Scerri Herrera would have none of that. She stepped out of her chair in the middle of her own courtroom — that’s a metaphor — and took up instead the case for the person appealing to her improvising a legal argument that no one thought of before because it is a complete misunderstanding of the law.

I have spoken to experts in the criminal code that are in collective bemusement at Judge Scerri Herrera’s decision. 

She cites in her decision quoting selectively from prior decisions of other courts that, experts tell this website, read in their proper context should lead to the opposite conclusion to the one reached by Judge Scerri Herrera.

When Mr Le Brun was first charged in August 2007, the drafting may have been imperfect but the fact that he was not labelled as the director of his own company did not prejudice in any way his defence. As it didn’t, it was not material to the case and in no way a basis to quash his conviction.

That is probably why he never himself pointed out the imperfection in his own defence whether when he was charged when he was indicted or even when he appealed after his conviction.

Judge Consuelo Scerri Herrera sitting on appeal in effect took it upon herself to plead for the appellant which goes against the principle of judicial impartiality.

There are several reasons why the minor omission in the charge sheet should not have allowed Mr Le Brun to get away with his crime. 

The Criminal Code expressly gives the Court of Criminal Appeal the power to quash the judgement of a lower court if it finds some technical defect in that decision but then requires the Appeals Court to hear again and decide afresh on the merits of the case. Judge Scerri Herrera did not hear the merits of the case again and in her decision never even referred to this responsibility the law gives her. (Article 428(3) of the Criminal Code).

Incidentally, the Criminal Code also prevents a person appealing from using in their appeal some technical defect if they haven’t already made that same argument in the lower court to first convicted them. That means that if Consuelo Scerri Herrera had made this argument for Charles Le Brun literally, rather than metaphorically, as his defence lawyer, the argument would have been thrown out by a judge who actually knows the law. (Article 390(5) of the Criminal Code).

Also when Charles Le Brun was indicted, any minor omission in the charge sheet would have been superseded by the bill of indictment which is a far more substantive document and a much more relevant consideration when deciding the case. But the Judge ignored all that happened between August 2007 and her decision in February 2019 and rewound back to that summer of 12 years ago. (Article 597(4) of the Criminal Code).

What does this mean? Whether out of incompetence or for some more sinister reason Judge Consuelo Scerri Herrera has done a huge disservice to Malta letting a substantial amount of public funds in unpaid tax money (worth much more now twelve years after they were first swindled) stay in the pockets of the man who stole them. She also, out of incompetence or worse, squandered thousands of labour-hours of police and court time in trying to prosecute a crime.

More time wasted ahead because this decision may require some patient Parliamentary time to clarify the law to avoid the repetition of this insane sentencing. No clarification was needed up to know but Consuelo Scerri Herrera has a habit of forcing legislators to rewrite what was already obvious in the first place. 

The Criminal Code needed revising at least twice in history already because of her obtuse decision-making such as when she failed to distinguish between a crime and a contravention in law or when she confused an in genere inquiry with inquiries ordered under a completely separate law on inquiries outside the Criminal code.

Those incidents happened before her promotion to Judgeship which happened on the orders of the government that includes her brother as a Minister and many of the guests of her legendary debauched parties. That promotion happened against the advice of other judges and people working in the profession.

The trouble is she is now deciding appeals from criminal convictions which means that her decisions to acquit anyone appealing to her court are final and now any miscarriage of justice that she plays midwife to cannot be rectified.