Five days after a jury acquitted Yorgen Fenech of complicity in the murder of journalist Daphne Caruana Galizia, one question looming over Malta is whether the case can legally start again.On 2nd September, a nine-member jury cleared Fenech of complicity in wilful homicide and of criminal association, voting 8-1 on each count after a 55-day trial – one of the longest murder trials in Maltese history. The verdict brought Caruana Galizia’s family to tears, drew international condemnation, and triggered protests in Valletta.It also started a clock. Under Article 504 of the Criminal Code, an appeal must be filed within 15 working days. Sources close to the Prosecution have revealed that the Attorney General (AG) intends to appeal in the coming days.A narrow doorArticle 500 of the Criminal Code gives the AG power to appeal an acquittal, but Article 500(4) sets a high bar. The Court of Criminal Appeal (COCA) must allow the appeal only if it finds a “grave irregularity” in the proceedings, or that the verdict clearly resulted from a “manifest misinterpretation” or “manifestly wrong application” of the law – and that the error could have affected the outcome. Even then, the court can dismiss the appeal if it decides no miscarriage of justice actually occurred.That’s a considerably higher bar than showing a judge made a debatable ruling. The AG cannot argue that jurors simply got the evidence wrong; it must show a defect serious enough, and consequential enough, to undermine the verdict itself – not invite three judges to re-run the 55-day trial themselves.Notably, the Code never defines “grave irregularity” itself. The term is left open on purpose, so the COCA can weigh each case on its own facts rather than apply a fixed checklist. But the surrounding text still fences it in: whatever irregularity is alleged has to be one that “could have had a bearing on the verdict,” and even then, the court can dismiss the appeal if it decides no miscarriage of justice actually occurred. In practice, that means the AG isn’t just pointing to an error – it has to be grave enough that it plausibly changed the outcome, and consequential enough that leaving the acquittal standing would itself amount to an injustice.Previous cases of retrial Malta’s courts have ordered retrials following appeals before, but the route is broader for a convicted defendant than for the Attorney General challenging an acquittal.A convicted defendant can appeal against a conviction on grounds including errors of law, procedural irregularities and the assessment of the case. By contrast, Article 500(4) sets a much higher bar for an AG appeal against an acquittal: there must be a grave irregularity or a manifest misinterpretation or manifestly wrong application of the law capable of having a bearing on the verdict.In 2012, Jose Edgar Pena appealed against his conviction after a jury trial. The Court of Criminal Appeal found that the jury may have been misdirected on conspiracy and intent and ordered a retrial. It was a defence appeal following a conviction, rather than an AG appeal against an acquittal, but it shows that a serious flaw in a jury trial can lead to a fresh hearing.The contrast is clearer in the two AG cases identified by Lovin Malta. In 2023, a police officer was acquitted of rape after Judge Consuelo Scerri Herrera ruled his confession inadmissible. The Attorney General appealed, arguing that this amounted to a grave irregularity. In May 2024, a three-judge panel agreed, quashed the acquittal and ordered a retrial. One of the judges, Edwina Grima, later presided over Fenech’s trial.In a separate 2019 acquittal involving a 2007 heritage theft in Gozo, the AG argued that fingerprint evidence had been misjudged. The Court of Criminal Appeal never reached the substance of that argument, however, because the appeal was filed three days outside the then-applicable 12-working-day deadline.Both AG cases involved a magistrate or judge sitting alone, not a jury.That makes a possible Fenech appeal unusual. Two lawyers consulted for this article said they could not point to a previous instance of an AG successfully appealing a jury acquittal. That is their assessment, rather than a claim that no such appeal has ever been filed, since a complete historical record was not available for this review.A Fenech appeal would therefore test how Article 500(4)’s “grave irregularity” and “miscarriage of justice” requirements apply to an acquittal delivered by nine jurors.What winning an appeal would actually meanAn appeal succeeding would not make Fenech guilty. Under Article 508, the Court of Criminal Appeal can, where “the interests of justice so require”, order a new trial on a fresh indictment. It cannot simply replace the jury’s acquittal with a conviction.That raises an obvious question: how can someone who has already been acquitted be tried again?The principle of ne bis in idem, or double jeopardy, generally prevents a person from being tried twice for the same offence. Article 527 of the Criminal Code reflects that rule, stating that after an acquittal a person cannot be subjected to another trial for the same fact.But Article 39(9) of Malta’s Constitution contains an important exception: a person can be retried if a superior court orders it during appeal or review proceedings concerning the original conviction or acquittal.That is the route that could apply here. The AG would first have to succeed under the narrow grounds in Article 500(4). If the appeal succeeded and the Court considered that the interests of justice required it, Article 508 would allow a fresh trial.So the AG would not be bypassing double-jeopardy protection. The Constitution itself recognises a narrow exception allowing a retrial through the appeal process.The political backdropThe legal process is unfolding against a charged political backdrop.Prime Minister Robert Abela has called for “prudence” in public commentary while avoiding a direct position on whether Fenech should be retried. Repubblika has pushed back against the government’s framing, saying the verdict did not end Malta’s wider reckoning over the murder and the institutional failures surrounding it.Opposition leader Alex Borg has called the verdict evidence of a “culture of impunity”, demanded Parliament be urgently reconvened and led a protest outside Castille. The government and opposition have since clashed over whether the verdict is being politicised.Civil society groups are also planning a larger protest for 16th September in Valletta. Organised by Repubblika and Occupy Justice, the event will replace the monthly vigil held since Caruana Galizia’s assassination. Several other NGOs have announced their support.Matthew Caruana Galizia has also publicly backed the possibility of a retrial.At the same time, another process is already under way. In her judgment acquitting Fenech, Judge Edwina Grima ordered evidence given during the trial to be sent to the Police Commissioner so investigators could assess whether other people could face criminal proceedings.That investigation is separate from any appeal against Fenech’s acquittal. One process asks whether the original proceedings against Fenech were affected by an error serious enough to justify an appeal; the other asks whether evidence heard during the trial points to possible criminal liability by other individuals.What comes next?The Attorney General’s appeal, if filed, will not ask the Court of Criminal Appeal to decide whether it agrees with the jury’s assessment of the evidence. It will have to identify a specific legal or procedural problem and show that it was serious enough to meet the threshold set by Article 500(4).That is the central question: was there a grave irregularity or manifest error of law, and could it have made a difference to the verdict?Even if the Court answers those questions in the AG’s favour, a retrial would not be automatic. The court would still have to consider whether the interests of justice require one.For now, Fenech remains acquitted. In the coming days, it should become clear whether the Attorney General will formally challenge that verdict and, if it does, whether the appeal can clear the unusually high legal bar required to reopen the case.•