Magisterial inquiries are by their nature inquisitorial. In this respect Malta follows continental European Law, mainly French and Italian Law. After all, the source of the Criminal Code is the Napoleonic Penal Code of 1810 that we got via the Penal Code of the Kingdom of the Two Sicilies of 1819. So, in this respect, it makes a lot of sense to see how the Italians and French have applied and amended their respective Penal Codes in relation to the office of Inquiring Magistrate (known as juge d’instruction in France and magistrato inquirente in Italy).
Nobody – except the inquiring magistrate – is privy to all the information contained in the inquiry file. When the inquiry is concluded and the report (known as procès-verbal) is drawn up, it is sent to the Attorney General who keeps it under lock and key, unless it is exhibited in court proceedings or the Attorney General decides to release its contents, in full, in part, or in a redacted form, to whomsoever s/he deems fit. And there are no criteria written down in the law in terms of which the Attorney General decides to exercise his/her discretion even though judicial review of this decision is allowed by law (article 569B of the Code of Organization and Civil Procedure).
What is therefore characteristic of the magisterial inquiry and the subsequent proceedings when the procès-verbal reaches the Office of the Attorney General is characterised by lack of accountability, lack of transparency, and a source of excessive delay for all concerned. Of course, one can do as the Prime Minister did in the Jean Paul Sofia case and write to the Chief Justice to report an Inquiring Magistrate for alleged feet dragging – very much like a child reports another child to a parent. But this is not how things should be done. The Prime Minister’s letter is only a political gimmick intended to attempt remotely to justify government’s own incompetence. Hopefully, with the proposed amendments yet to be announced to be made to the office of inquiring magistrate, things will drastically change – for the better one hopes – especially with the justice minister stating that there will be established a pool of 4 inquiring magistrates in the near future.
Several measures need to be introduced in the Criminal Code to make magisterial inquiries more accountable, transparent, and speedily concluded. The two main culprits here – if I can use that term loosely – are the Inquiring Magistrate and the Attorney General. Although they both have a case to answer, it is not always their fault that magisterial inquiries – like court proceedings – tend to drag on and on. In the case of the inquiring magistrates, they have to rely on expert evidence and are bogged down with other judicial duties of an adjudicative nature that eat their working time. In the case of the Attorney General, s/he must rely on the Police. This statement should not however be interpreted as shifting the blame on the experts and the Police for all four main protagonists can somehow be responsible for delays in the conclusion of magisterial inquiries and follow up thereupon.
Accountability
Let me first address accountability. The Magistrate – when conducting an inquiry is accountable only to his/her oath of office and conscience, and to no superior authority, not even to the Chief Justice, unless s/he violates the law. But all things being equal, an inquiring magistrate’s work is not supervised. To add more difficulties to the process, all magisterial inquiries are by their very nature secret thereby making it difficult for an inquiring magistrate to release any information whilst the inquiry is ongoing. This has – and still is – posing difficulties to truly genuine interested persons who are kept totally in the dark for months on end when the inquiry is taking its course until it is sometime eventually concluded.
This secrecy element is also abused by the Police because whenever they are asked by the media straight forward questions whether they are investigated this or that criminal conduct, their convenient excuse it that they cannot disclose any information pertaining to ongoing magisterial inquiries, including affirming or denying whether the Police are investigating an alleged criminal behaviour. In this respect – the Police, the Inquiring Magistrate, and the Attorney General are unaccountable. The Police stretch their unaccountability to the stage that not only they do not inform the public at what stage has a police investigation (as distinct from a magisterial inquiry) arrived, but they even fail to declare whether they are investigating a particular alleged criminal conduct or not, or whether they are implementing the direction that an inquiring magistrate might have given to the police in the procès-verbal.
All this is a vestige of past times when concepts of good administration and good governance were totally unknown and when the government enjoyed absolute power. Whilst administrative and judicial secrecy are important for the conduct of criminal investigations and magisterial enquiries, secrecy should not be used as a tool to stifle all forms of democratic accountability. Through the principle of proportionality, a balancing out exercise must take place between administrative and judicial secrecy, on the one hand, and transparency, on the other. Hence the need to update the absolutist institution of inquiring magistrate from its 19th century forma mentis to the 21st century democratic mentality.
The law regulating magisterial inquiries that dates back to the 1850s and that has not been subject to a thorough review since then needs to be revisited, bearing in mind the developments that have taken place since then, foremost amongst which are the enshrinement in Maltese Law of human rights and fundamental freedoms, good governance standards such as those related to accountability and transparency, and the rights afforded of victims of crimes.
Proper administration of justice
Below are some suggestions for consideration.
Currently, once the Police and interested persons lodge a report to an Inquiring Magistrate, the interested person is left totally in the dark as to whether an inquiry has been launched, when it is expected to be concluded, what evidence is being adduced, whether the interested person is going to be summoned to testify and submit all evidence in his/her possession, whether the interested person has any say in those proceedings including requesting the abstention of an inquiring magistrate, or drawing up a list of witnesses to be summoned, etc.
After all, even citizens are interested in the proper administration of justice: this is not a preserve uniquely for the Inquiring Magistrate. The way how these interested persons are treated is though they are totally extraneous to the magisterial inquiry. There is no empathy in this aspect of the judicial process. Hence, if the interested person is a parent who lost a child or a spouse/partner who lost the other spouse/partner in a fatal accident, the parent and spouse have no inkling as to the proceedings taking place totally behind closed doors in the criminal inquiry. Yet the institutions of state have a duty to consider these victims of crimes or relatives thereof as human beings whose dignity ought to be respected. As inquiring magistrates are unaccountable, interested persons are simply denied the right to have access to the very basic information related to the inquiry.
I do understand that, so as not to prejudice any future criminal proceedings, it is not possible to hand a copy of the magisterial inquiry documentation both during the iter of the inquiry and sometimes after its conclusion. But I do expect that an inquiring magistrate communicates at certain intervals with interested persons basic information as to the progress of the inquiry. It is totally unacceptable in a democratic society for a public-spirited person or organization who have requested a magisterial inquiry to be keep totally in the dark of its proceedings, not even knowing whether they will be called upon by the inquiring magistrate to give evidence or even to be informed when the inquiry was concluded.
Update on progress
The Attorney General should, on receipt of a procès-verbal, deliver a copy thereof to interested persons that would include the person/s who filed the complaint with the Police or the inquiring magistrate for the opening of a magisterial inquiry, unless such delivery would adversely prejudice future criminal proceedings and investigations. Should the latter be the case, the Attorney General would have to apply to the Criminal Court within one month from receipt of the procès-verbal to be authorized not to divulge to the interested person/s the procès-verbal. This application should be considered in camera and, if the court so deems proper, after having heard the Attorney General, authorise the Attorney General not to disclose such procès-verbal with the caveat that the court will review its decision at six monthly intervals. In the absence of such judicial approval, the Attorney General will be bound to pass on a copy of the procès-verbal to the interested person/s.
An inquiring magistrate, on the expiry of three months from the commencement of an inquiry, should be obliged by law to summon interested persons to update them on the progress of the inquiry. An interested person does not include a person suspected of committing a crime/s in relation to which the inquiry is opened. This should not be construed that the said person/s is automatically excluded from giving evidence before the magistrate and/or adducing his/her own evidence before the inquiring magistrate: this can take place after the said one time or further period as reasonable necessary elapses so as to allow the Magistrate adequate time to compile the necessary evidence in relation of such suspect/s, sift it, study it, and then be able to confront the suspect thereupon, irrespective of whether or not the suspect exercises his/her right to silence.
Interested persons should include victims of crimes relative to the inquiry, their relatives, their judicial representatives, agents, and attorneys, and the person/s – natural or legal – who filed a complaint with the police or an inquiring magistrate for the opening of a magisterial inquiry. Bona fide non-governmental organizations should qualify as interested persons subject to the inquiring magistrate being satisfied that they are truly bona fide and that they do not intend to pervert the course of justice.
Doctrine of juridical interest
The law should automatically recognize as bone fide without the need of taking further steps for judicial ascertainment those non-governmental organizations that are: (a) registered under the Voluntary Organizations Act; and (b) promote: (i) the rule of law, or (ii) good administration, or (iii) good governance; or (iv) democracy; or (v) human rights and fundamental freedom; or (vi) transparency and accountability in government; or (vii) victims’ rights.
Initially no appeal should lie from such ruling though this matter should be revisited after five years from the entry into force of this provision to evaluate past practice and determine whether this rule ought to be relaxed in certain circumstances. It should also be possible for an inquiring magistrate to declare certain bodies corporate who might not be registered under the Voluntary Organizations Act as bona fine such as in the case of newspapers who would be operating under the Companies Act.
This should be in the nature of a general magisterial declaration (not limited to a case by case basis) and notice thereof should be published in the Government Gazette and on the Courts of Justice website (ecourts.gov.mt) for general consumption. Interest should not be established in terms of the doctrine of juridical interest that applies in the courts of civil jurisdiction but on the basis of the common good of society taking into account a number of criteria such as whether the inquiry will affect negatively the rights of an interested person; whether an inquiry will impose new burdens on an interested person; whether a non-government organization or company is one that in terms of its instrument of incorporation and past activities is one that campaigns in relation to the subject matter of the inquiry, or can furnish evidence in relation to the subject-matter of the inquiry, or is acting in a public spirited manner in the interest of the proper administration of justice, or to ensure that alleged criminal behaviour by whosoever committed, including by the public administration, does not go unpunished.
Defect in Maltese law
Once a procès-verbal is submitted to the Attorney General, it would be the latter who would have to carry regular meetings with interested persons. It is imperative that the inquiring magistrate and the Attorney General are both rendered accountable in the exercise of their functions as this is a defect in Maltese Law that is, from a citizen’s viewpoint, perverting the course of justice. It is also imperative that: (i) Inquiring Magistrates are empowered to initiate a magisterial inquiry ex officio without the need of receipt of any report by the Police or any interested person; (ii) should the interests of justice so require, two or more inquiries whose subject-matter is related may be carried out concurrently by two or more magistrates and, should the inquiring magistrates so determine one common report may be drawn up for these two or more inquiries; (iii) the Criminal Code is amended to allow bona fide interested persons (both natural and legal) to lodge a complaint directly with an inquiring magistrate without the need of having (a) to prove juridical interest and (b) to have recourse to the police where the citizen entertain serious doubts that the police will not act on that report or that may contain evidence that might incriminate the police and, in the interests of the proper administration of justice, such evidence should be passed on directly to an inquiring magistrate for preservation purposes and for the taking of further action as the magistrate may deem proper; (iv) should a magistrate refuse to initiate an inquiry, or when a magistrate declares that an interested person may not lodge a complaint to an inquiring magistrate, an interested person should have a right of appeal to the Court of Criminal Appeal (inferior competence) within one month from notification thereto of the magistrate’s decision or, should for some reason or other no such notification is made, within one month that decision is posted on the ecourts.gov.mt website or from the date the interested person came to know of that refusal.
Where an inquiring magistrate has in a procès-verbal directed the police/Attorney General either to carry out further investigations or to arraign person/s in court, the police and Attorney General should be required to comply with that order within such time period, whether original or extended, as the magistrate might have established. Should the Police or the Attorney General disagree with such order, a right of appeal shall lie to the Court of Criminal Appeal and the appellate court’s decision shall be final and conclusive.
In applying the Criminal Code provisions to magisterial inquiries, the inquiring magistrate and the courts of justice of civil and criminal jurisdiction, should be guided by the principle of the common good of society that requires in such instances a wide access to justice to interested persons so as to ensure the proper administration of justice and, should there be doubt as to whether an inquiry should be initiated or not, the scales of justice should tilt in favour of authorising the inquiry to proceed. In this way the right to access justice is safeguarded by giving a right of access to magisterial inquiries to challenge any alleged wrong doing by public authorities that runs counter to law.
There should be a pool of magistrates who only perform magisterial inquiring duties, their office should not be in the courts building but in the vicinity of Police Headquarters, that would have the necessary staff and that it would be this pool of magistrates that decides on matters related to staff vacancies, selection of staff, etc. The government or the civil service should have absolutely no say on how non-judicial staff are appointed to this office. All expenses related thereto are to be a charge on the Consolidated Fund without the need of any further annual appropriation. These measures will ensure that not only inquiring magistrates but even their direct staff are independent from government.
Other Related Reforms
In the case of proceedings before the Court of Magistrates, the following reforms are suggested.
Where the Attorney General decides to enter a nolle prosequi (abandonment of proceedings) in the records of a preliminary inquiry (kumpilazzjoni) that decision, once taken, shall be forthwith entered in a Nolle Prosequi Public Register. This register should be available for public inspection on the ecourts.gov.mt website. Such decision will not come into effect unless confirmed by the Court of Criminal Appeal. Notification of such decision must also be afforded to interested persons who are to be automatically joined in those proceedings as parties before the Court of Criminal Appeal for any observations or evidence they might want to produce. They should also have a right of audience.
Where a person is undergoing criminal proceedings and that person is acquitted due to a mistake by the Police in the charge sheet or the Attorney General in the bill of indictment, a magisterial inquiry should be initiated to determine who was responsible for such mistake and to recommend what measures should be taken in the future to avoid such mistakes. The inquiry should also establish who should be disciplined for such negligent mistake/s. The Criminal Code should be amended to establish the offence of perverting the course of justice in the case of mistakes committed by the Police and the Attorney General that lead to an accused’s acquittal where the mistake is not the result of negligence but of criminal culpability. A finding of guilt in the criminal proceedings should lead to permanent interdiction from public office.
A copy of each charge sheet and bill of indictment and amendments thereto should always be notified to interested persons, though lack of notification thereof should not invalidate criminal proceedings against the accused but amount to the crime of perverting the proper administration of justice or disciplinary offence, as appropriate. In those cases where a court concludes that some irregularity has taken place, an appellate court shall not acquit an accused but revoke the judgment of the court of first instance, declare which evidence is inadmissible, confirm which evidence is admissible and allowed to be produced afresh for the purpose of a new trial, and return the record of the proceedings to the court of first instance so that the case can be reheard in the absence of the inadmissible evidence.
The Police and the Attorney General should inform victims of crime of all criminal proceedings undertaken by them together with adjournments thereof. Such notification should be given directly to interested persons, not to their lawyers so that the latter in turn inform their clients. Such notification can include email notification, text message notification or notification via social media; the notification will be valid when the interested person concerned confirms to the Police or Attorney General receipt of notification. This will ease the Police’s task of having to hand deliver all notifications to the residence of the interested persons concerned, cut on expenses and waste of time, and allow the Police to focus more on their duties. The government should ensure that all persons residing in Malta have a government email through which all such notifications can be made thereby eliminating the need for hand delivery of court notifications.
Dr Joe Brincat, when Dr Alfred Sant was Prime Minister, had drafted for the government a bill (subsequently published as Bill No. 45 in the Malta Government Gazette on 31 October 1997) that proposed the establishment of the Office of Special Inquiring Magistrate against Corruption. It would be appropriate when amending the Criminal Code to take on board this bill and abolish the Permanent Commission Against Corruption that has failed miserably the country.
The Commission of Police and the Attorney General should be appointed by the Judicial Appointment Committee, not by the Prime Minister. In this way, their office’s independence from government is strengthened.
Finally, government should seek expert advice on how the institution of inquiring magistrate functions in France from where this office originated and in Italy that adopted it so that it can benefit from the acquired experience of these two jurisdictions that also have a similar system like ours of inquiring magistrates.
Kevin Aquilina is Professor of Law, University of Malta