A Lilliputian criminal procedure reform

By means of a consultation document entitled Riforma fis-Sistema tal-Kumpilazzjonijiet u Rinviji (Reform of the compilation of evidence and referral procedures), the ministry responsible for justice is requesting feedback on that document by 31 May 2023.

“If my memory serves me well, Dr Joe Brincat under Labour Prime Minister Dr Alfred Sant’s leadership, had drafted a bill to reform the office of inquiring magistrate but no action was ever taken thereupon apart from filing that bill somewhere in the corridors of power.”

The raison d’être of this piece, therefore, is to provide the necessary feedback. In his ‘Introduction’, the Justice Minister writes that the purpose of the reform is to increase efficiency in the compilation of evidence in criminal proceedings and to do away with the referral system of the acts of criminal proceedings from the Court of Magistrates as a Court of Inquiry to the Attorney General and viceversa. The draft Bill that is annexed to the consultation document proposes to amend article 46(3) of the Constitution, article 4(3) of the European Convention Act, and various provisions in the Criminal Code.

As to the former, the Constitution currently provides that when an issue/s relating to human rights and fundamental freedoms is raised before the Civil Court, First Hall (Constitutional Competence) and, on appeal, before the Constitutional Court, these courts, in their decision, are to refer the human rights and fundamental freedoms issue/s back to ‘the court in which the question arose’ so that the latter would decide the criminal proceedings in accordance with that decision. The draft Bill’s amendment will add the words ‘or another court hearing that case’. An identical amendment is being proposed to the European Convention Act. I see no difficulty with these provisions as their effect is to reflect court practice. Hence I agree therewith.

What worries me nevertheless in the consultation document is its overarching fear to change things root-and-branch for, instead of grabbing the bull by the horns to expedite constitutional proceedings through an amendment to article 46 of the Constitution and the corresponding provision in article 4(3) of the European Convention Act, once these articles are going to be changed, government has opted to limit the legislative intervention to a highly cosmetic and quite obvious change that strictly speaking was not crying out for reform once this is what already happens in court practice and has since 1964 so happened. As a matter of fact, these two amendments do not change anything but serve to crystallise extant court practice.

Whilst I do concede that there is no harm in the proposed changes to the Constitution and European Convention Act, articles 46 and 4 aforesaid need a complete overhaul so that constitutional proceedings may be raised and decided before any court and tribunal that is presided by a sitting judge or magistrate, so that the issue is decided there and then without any reference to any other court, in this case, the Civil Court, First Hall (Constitutional Competence). Whilst in the past, it might have made sense to confer exclusive jurisdiction to the Civil Court, First Hall, to determine constitutional issues, bearing in mind that not all members of the judiciary might have been well acquainted with the then newly emerging branch of Public Law – Human Rights Law – that is no longer the case for all members of the judiciary are nowadays well versed in Human Rights Law when compared to the situation in 1964. A more drastic and bold approach is thus required and advocated.

Indeed: (a) in several instances, time is lost in communicating the record of the criminal proceedings between the criminal and civil courts involved; (b) the State Advocate would invariably plead, and in doing so would be acting within the framework of the rule of law, that ordinary remedies have not been exhausted, thus delaying inexorably the court proceedings; and (c) the judge in the Civil Court, First Hall, would not be conversant with the precise details of the criminal proceedings pending before the Court of Magistrates. Moreover, there will be no toing and froing of court files from one court to another with the possibility of evidence being damaged or lost. This reform should apply across the board to all courts and tribunals as stated above.

The draft Bill then proposes amendments to the Criminal Code. I agree in principle that referrals between the courts and the AG should be abolished and that the compilation of evidence should not exceed one year. But, as always, the devil lies in the detail. There might, however, be situations where the one-year maximum period, in exceptional circumstances, might not be practicable such as in the case where evidence has to be sought from a foreign court through letters rogatory that have not been returned back in Malta with the replies within the one-year period, or where constitutional proceedings in relation to those criminal proceedings are still ongoing, or where, due to the exceptional complexity of the case, it is not possible to conclude the compilation in that period such as where several experts are involved and one or more experts are not in a position to conclude the reference within one year, more so if it is only one expert who has to service all courts in relation to that expertise. In these cases, either the Criminal Court should authorise the extension and the case goes to trial after this evidence is produced within such extended reasonable time, or decide that the case should continue without that evidence depending inter alia on the importance of that evidence for the prosecution’s case, the time already taken to procure that evidence, and the gravity of the offence.

Article 39(6) of the Constitution provides, in relation to an accused person, that ‘except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence’. The addition proposed in clause 438(4a)(d) by the draft bill attached to the consultation document, whereby the Criminal Court can proceed with hearing the case in the absence of the accused does not refer to any consent that the accused is required to give in terms of the constitutional provision and, therefore, needs further reflection thereupon. Otherwise, it risks being declared to be in breach of the Constitution, not that this worries at lot our government who is well acquainted in trampling upon the fundamental law of the land.

Perhaps the main criticism that can be addressed against the draft bill is that it is not bold enough and that more could have been done to ensure that court proceedings are conducted in a speedy manner bearing in mind that – correctly – this is the justice minister’s objective in the proposed reform. For instance, the bad habit of an accused’s defence counsel reserving the cross-examination to another sitting should not be allowed except in very exceptional circumstances and not by way of ordinary procedure as has become the case with the court’s approval. After all, this is what the rules of court (S.L. 12.09) – conveniently and continuously ignored by the judiciary – provide for.

Furthermore, the amendments do not propose a thorough reform of the institute of Inquiring Magistrate to ensure that magisterial inquiries are concluded expeditiously and the backlog of inquiries of 1,700 is reduced to an acceptable level. If my memory serves me well, Dr Joe Brincat under Labour Prime Minister Dr Alfred Sant’s leadership, had drafted a bill to reform the office of inquiring magistrate but no action was ever taken thereupon apart from filing that bill somewhere in the corridors of power. Nor is there any reform of the institute of court experts that is a worrying reason for delay and concern in the criminal process.

Other aspects unaddressed by this sheepish (with due apologies of course to the sheep and to animal rights organizations who may perceive this comment as amounting to animalism!) reform are:

(a)there are no measures addressed at the by far more numerous petty cases that also drag on infinitely when in the Court of Magistrates these are considered by law to be summary (only in name of course) proceedings;

(b) the most pressing problem of criminal cases delays in trials by jury;

(c) shortage in the courts’ agency staff that also contributes to court delays through lack of support staff; (d) space constraints within the courts building that has over the years with an increase in judiciary dwarfed itself in size;

(e) not revisiting the use of technology in giving evidence so that witnesses do not need to be physically present in court;

(f) not investing adequately in automated technology that at a push of a button transcribes instantaneously court evidence whilst a witness is deponing so that the judge/magistrate can make the necessary corrections to the transcription immediately after the evidence has been recorded (if not concurrently to when the evidence is being dictated) without the need of having to transcribe the evidence at a later stage with the ensuing delay and expenses this brings with it; (g) not revisiting the institute of trials by jury that, by and large, has not been drastically changed since its establishment in 1815 notwithstanding the complexities that have arisen since then in the criminal justice system such as when complicated financial crime cases are being heard that ought to be dealt with by a judge and two accounts, auditors, economists or other specialists such as forensic accountants, etc. that are of the essence in determining these complicated cases;

(h) the reform of the office of Advocate for Legal Aid that, amongst other things, should form part of the judicial branch of government;

(i) strengthening of challenge proceedings (article 541 of the Criminal Code) and rewriting from scratch judicial review of the Attorney General’s discretion (469B of the Code of Organization and Civil Procedure) that today serves no purpose to the public spirited citizen to ensure that any person can without difficult resort to these provisions and is not stopped due to some procedural hurdle thereby having access to justice that is currently being deprived by the Office of the State Advocate when it pleads lack of juridical interest against a person or body corporate acting in the public interest; and

(j) to empower inquiring magistrates to conduct ex officio magisterial inquiries without the need of receiving a report from the police or any other person to commence an investigation under the Criminal Code.

Instead of focussing on improving investigation and prosecution methods, and reducing the insane workload of individual magistrates – together with establishing a reasonable time limit on committal proceedings – the proposals seem directed exclusively at addressing solely the latter’s formal time frame.

This might will lead either to half-baked prosecutions ending in indictment before the Criminal Court or lengthier overall summary proceedings before the Court of Magistrates. Whilst liberating the Police Force from prosecutions is a step in the right direction and assigning prosecutions in the inferior courts to the Attorney General’s office, this measure, by itself, is not conducive to expediting criminal prosecutions. For what the ultimate aim that should animate a reform of criminal procedure is to have speedier proceedings at all levels – Police, Inquiring Magistrate, and courts of criminal jurisdiction, combined with assuring the proficiency, competence, and efficiency of police investigations, magisterial inquiries, and court criminal proceedings. The Criminal Code should also be amended so that when a magistrate concludes a magisterial inquiry that involves a politically exposed person, the magistrate should publish the conclusions of that inquiry for public consumption and, in these cases, the law should authorise any person to challenge the Commissioner of Police and the Attorney General before the Criminal Court for not instituting criminal proceedings within a maximum period of six months from the conclusion of that inquiry or such extended period as the Criminal Court may establish, provided that the maximum period shall not exceed two years and that the prescriptive period shall be suspended in the interim period until the charges are filed in the inferior court.

Mentioning the right to a speedy trial, the draft bill does not appear to take into account that for the purposes of Article 6 of the European Convention of Human Rights, the length of the “criminal proceedings”, according to the European Court of Human Rights’ case law cited by Karen Reid (A Practitioner’s Guide to the European Convention on Human Rights, Sweet & Maxwell, London, 2015, p. 254), begins from the moment the suspect is first confronted by the police with a formal suspicion/accusation that s/he had committed an offence. It sometimes nowadays takes two years before the police arraign someone in court after the first “encounter”, such that the four-year maximum for the reasonable-time requirement at one level of jurisdiction will pass. Police investigation, committal proceedings, and trial by jury are all one level of jurisdiction.

A final note on the Maltese language used in the draft bill. The Maltese used needs revisiting. For instance, ‘zvelar’ is used when in Maltese the appropriate term for to disclose is ‘kxif’. Had he still be around, Guze’ Diacono would have well condemned this barbarism, as he had termed it in one of his books, for there already exists a word in Maltese known to, and understood by, all that could have easily been used instead. Here again, a serious attempt should be made by government to ensure that Maltese is written properly especially in laws. Government has all the tools to do so because: (a) it can amend the Standing Orders of the House to Representatives to task the Council for the Maltese Language to vet the Maltese version of all bills that are given a first reading before being published in The Malta Government Gazette to ensure that Maltese is written correctly; and (b) for the Council to draw up guidelines on proper Maltese legal terminology. The tools are there but government, that has no clue what good governance is all about, does not use these extant tools. The end result is that the Maltese language continues to be barbarised by government itself in official documents. This is a wake-up call for the Minister responsible for the Maltese language to move on from blah blah to concrete action to protect not to trample upon the Maltese language.

Another glaring instance of bad governance that borders on culpable negligence is the nonimplementation, nearly ten years down the line, of the suggested changes to criminal procedure contained in the Labour government-appointed Judge Giovanni Bonello Commission 30 November 2013 Report on the Holistic Report of the Justice Sector that continues to serve as a standing monument to government’s crass incompetence in reforming criminal procedure through the effective implementation of those recommendations. Contrary to the Lilliputian criminal reform that the justice minister is now proposing the Bonello Commission report was far reaching.

“The tools are there but government, that has no clue what good governance is all about, does not use these extant tools. The end result is that the Maltese language continues to be barbarised by government itself in official documents.”