Incorrect findings by Maltese court expert caused miscarriage of justice, says US journalist

One of the world’s leading financial crime journalists has filed a sworn affidavit and documentary evidence claiming that a Maltese digital forensic expert gave the IDPC appeals tribunal incorrect evidence that led to “a grave miscarriage of justice.”

David Marchant, owner and editor of OffshoreAlert, said Keith Cutajar, tasked as a digital forensic expert by the Information and Data Protection Appeals Tribunal, misread HTML data in a case brought by Maltese businessmen Christian Ellul and Karl Schranz, of E&S Group, against the Malta Financial Services Authority.

Ellul and Schranz claimed OffshoreAlert had uploaded an MFSA penalty against E&S a week prior to its official publication on the MFSA website. Marchant said he back-dated his OffshoreAlert article to the date the penalty was officially issued, 18 November 2019, instead of the day the penalty was published.

Relying solely on Cutajar’s evidence however, the IDPC Appeals Tribunal incorrectly determined that OffshoreAlert had published a copy of an MFSA regulatory action against E&S Consultancy Ltd. on 18 November 2019 – one week before it was published on the MFSA’s own website. In February 2025, the decision was upheld by Malta’s Court of Appeal.

In a reaction to the decision, Marchant provided the MFSA with a 4,000-word affidavit – sworn under oath – showing beyond any reasonable doubt that OffshoreAlert published the document after it was published by the MFSA, not before.

“I am in disbelief that Christian Ellul and Karl Schranz made an allegation for which there is not – and cannot be – a scintilla of credible evidence to support and a ‘digital forensic expert’ provided the Tribunal with incorrect information that purports to corroborate it,” Marchant said. “It is a clown-show of the highest order. If this wrong is not righted, it will be a severe blight on Malta’s justice system,” Marchant added.

“Cutajar ignored self-explanatory HTML data in his own report that literally gave the ‘datePublished’ and ‘article:published’ date as 25 November 2019. It defies belief. Instead, he relied on a class of HTML data that he clearly did not understand, which has nothing to do with the publication date and simply shows a date I had manually entered to reflect when the MFSA actually took the action, which was 18 November 2019.”

OffshoreAlert publishes actions taken by financial regulators in dozens of countries around the world, including Malta, using the Distill monitoring tool to track changes on regulatory websites. Marchant received an email from Distill on 25 November 2019 that the MFSA had published an action against E&S Consultancy Limited. He saved the information as a PDF file, which clearly shows the information was saved from the MFSA site on 25 November 2019, as does the automatically-generated ‘Creation’ date in the ‘Document Properties’ of the pdf file.

Marchant then uploaded that document to OffshoreAlert’s WordPress content management system, manually backdating it to 18 November, to reflect the date the MFSA itself assigned to the action.This is still verifiable at the MFSA website where the action is dated ‘18/11/2019’ even though it was not published on the MFSA’s website until seven days later.

Marchant also wrote an article, published on 25 November 2019. Apart from the HMTL confirming this date, the website's automatic Mailchimp newsletter sent out by OffshoreAlert for all website uploads from the last 24 hours, showed the E&S Document appearing in the digest on Monday, 25 November but not in the digests of 18 or 19 November. Even on X.com (formerly Twitter), the historical records still publicly available show that E&S Document was published on 25 November, 2019.

“Any claim that the E&S Document was published on November 18, 2019 or any date other than November 25, 2019 is provably false and, frankly, ridiculous... it is obvious that Mr Cutajar, upon whose evidence the Tribunal relied, did not analyse E&S Document’s HTML data competently or correctly, and later compounded his conduct by not responding when I sent him evidence proving his conclusions were incorrect. Mr Cutajar’s analysis regarding E&S Document is strange and worthy of independent examination.”