Yorgen Fenech's uncle let off the hook as police botch prosecution<\/p>\n
Yorgen Fenech was not the only member of his family to walk away scot-free on Wednesday.<\/p>\n
His uncle, Raymond Fenech, was acquitted at the first hurdle, when he was charged personally, rather than in his capacity as a representative of the company that held the licence for Tiffany’s.<\/p>\n
Magistrate Donatella Frendo Dimech took the police to task over what she described as “easily avoidable errors” that were increasingly allowing those who had broken the law to escape justice.<\/p>\n
She insisted that the police must stop rushing to sign off on “charges fall apart under scrutiny.”<\/p>\n
This was necessary, she said, “so that the court’s time is not wasted, the accused does not end up facing half-baked charges and, above all, it is ensured that justice is done to society”.<\/p>\n
In February, Fenech was accused of allowing an employee to manage Tiffany’s at Portomaso without the required licence.<\/p>\n
He was also accused of allowing loud music that disturbed nearby residents and of running the venue with amplified music or a live band late at night.<\/p>\n
Where the prosecution went wrong<\/b><\/p>\n
The prosecution’s case came unstuck over who was responsible for the alleged offences.<\/p>\n
The charges were filed against Fenech personally. However, an affidavit from a Malta Tourism Authority representative showed that the licence was held by Spinola Developments Co. Ltd, with Fenech acting only as the company’s representative.<\/p>\n
The court pointed out that Maltese law draws a distinction between a company’s criminal liability and the personal liability of its directors or representatives.<\/p>\n
If the police intend to hold a company official personally responsible for an offence committed by a corporate body, the charges must make clear that the person is being prosecuted under the rules on vicarious responsibility.<\/p>\n
This is not a mere technicality, the court said. The accused must know precisely what case they are being called on to answer so they can prepare their defence.<\/p>\n
Because the prosecution had failed to specify that Fenech was being charged in his vicarious capacity as a representative of Spinola Developments, the court found that he could not be convicted.<\/p>\n
Fenech was acquitted on all counts.<\/p>\n