Duty magistrates are required to open inquiries if an accident could lead to persons being criminally charged for offences that could lead to three years or more of imprisonment, a criminal defence lawyer said.

What are the criteria which trigger magisterial inquiries? Why are inquiries appointed in some cases, and others not? These were the questions raised following Caroline Micallef’s story, who remained clueless as to why a magisterial inquiry was never appointed after her home in Guardamangia collapsed in 2019.

Then Justice Minister Edward Zammit Lewis had told her the reason why, while sitting next to her on an episode of Xarabank, in a debate which discussed the dangers of construction sites and what the government has a hand in to ensure health and safety within, and around, these sites.

Micallef’s home was adjacent to a construction site at Guardamangia Hill when it had crumbled and Zammit Lewis had told her that a magisterial inquiry in her case was not appointed because nobody had been injured, or had died, despite being minutes away from being caught under the rubble, as well as losing everything she owned.

She had then read up on another case, that of Janet Walker's, where a wall had collapsed in her building. A magisterial inquiry had been appointed in Walker's case, despite no injuries or deaths.

The Malta Independent on Sunday contacted a criminal defence lawyer, asking what exactly triggers a magisterial inquiry.

The lawyer, who did not want to be named, said that in Malta, duty magistrates are assigned from 9am to 8.59am the next day, and they are responsible for anything which happens in those 24 hours.

“Accidents, sudden deaths, homicides, whatever happens, they have to decide whether to open an inquiry or not,” she said.

“Put simply, if the result of that accident or crime may result in a person being charged with a crime, the punishment of which is more than three years imprisonment, then the magistrate is constrained to open up an inquiry,” the lawyer continued.

She said that the law then offers provisos to this general rule, which leaves the appointment or otherwise of a magisterial inquiry up to the duty magistrate.

These conditions to the general rule were not explained further, which could ultimately suggest that the duty magistrate can decide, of their own volition, to appoint a magisterial inquiry, or otherwise.

The episode on Xarabank in which Micallef featured in followed the tragic death of Miriam Pace, who died under the rubble of her Hamrun home in 2020. Her residence collapsed as work was taking place in an adjacent plot.

“All economic success and all development must not be done at the expense of a life. Life has value which cannot be measured by any amount, development and success,” Zammit Lewis had said.

Micallef had replied, saying that in her opinion, a magisterial inquiry must always be appointed, especially in her case, where things seemed shady from the start. A magistrate had come to the site, but decided not to appoint an inquiry, and the police shut the doors on the residents, who were the victims of the collapse.

Micallef had said that she lost her home due to negligent developers and contractors. Nobody was charged in her case.

“That is in the discretion of the magistrate, and not the government,” Zammit Lewis fumbled to say in response.

Zammit Lewis had said that the construction industry had a failed system and that government (at the time) is doing a lot to reform it. At the same time, he continued to say that developers, architects and contractors have responsibilities they must shoulder, and it is easy to constantly blame the government.

More recently, Prime Minister Robert Abela has said that his government was considering the appointment of magistrates who would focus specifically on inquiries, to help with the workload, and increase resources.

The criminal defence lawyer was asked if this was enough to deal with the current nearly 1,700 pending magisterial inquiries.

“This was an idea which had been spear-headed by Dr Franco Debono when he was a Member of Parliament for the Nationalist government. I do believe that this is the way forward,” the lawyer said.

She said that one has to realise that a magistrate in Malta has many roles to fulfil; currently, they have to be duty magistrates when it's their turn on the roster, they have to do magisterial inquiries, they have to listen to Compilations of Evidence, they have to decide cases as a Court of Criminal Judicature and they have to write judgements.

“Having magistrates who would be specialised to hear solely magisterial inquiries would reduce the load on magistrates deciding cases, and would make the process go faster,” she continued.

These specifically appointed magistrates would take on a new workload, leaving the current pending ones in the hands of the current magistrates. The lawyer was asked if this proposal was feasible.

She suggested a plan where, inquiries in the hands of current sitting magistrates, would be disseminated to the new ones which would be appointed.

“However, definitely the separation of the two roles is the way forward to help with the backlog at hand,” she said.

Since Pace’s death, several other deaths followed in relation to construction sites, including that of 20-year-old Jean Paul Sofia, who died under the rubble of a timber factory under construction in Kordin on 3 December 2022.

Just over seven months later, the magisterial inquiry into his death was concluded and has led to the arraignment of five people who are charged with negligently causing Sofia’s death and injuring others.

The incident was one which sparked nation-wide anger towards the way things have not changed in spite of several accidents which have taken place in the construction industry. A magisterial inquiry into Sofia’s death was concluded a few days ago, with the Prime Minister’s Office publishing the conclusions of the inquiry last Wednesday.

The PM, after initially resisting the idea of a public inquiry, which will look into the administrative failings, succumbed to public pressure and will be setting up one. But he has repeatedly pointed out that the magistrate responsible for the Sofia inquiry extended her original 60-day deadline in which she should have completed her inquiry, finishing it after seven months.

The criminal defence lawyer was asked if the 60-day stipulated timeframe in which a magistrate must conclude a magisterial inquiry is enough, considering that often, the magistrates ask for an extension.

“It depends on the case, sometimes no it's not enough. Sometimes the magistrate may not even be at fault for the delay,” she said.

The lawyer added that one also has to contemplate the fact that the magistrate in the magisterial inquiry appoints experts to help her in the investigation and there have been scenarios where a court-appointed expert would need more time to report to the magistrate on their findings.

“The extension is so much a case-by-case basis, that the law itself contemplates that the 60 days may be extended,” the lawyer explained.

How many of these inquiries are actually concluded in 60 days? She was asked.

“It depends whether the case is straight forward or not. If it is straight forward, it is usually concluded within the 60 days,” she said.

However, the lawyer reiterated that the magistrate may actually be restrained from giving her final decision, because there may be pending expert reports.

“I know for a fact that, considering the load magistrates have, they do try their very best to conclude these inquiries within the 60-day time period, but unfortunately the reality is that most of the time, an extension over and above the 60 days is asked for due to the circumstances of the inquiry before them,” the lawyer said.