No one would dare deny that our all too often court delays and logistics problems within the law courts have been contributing to unacceptable and unreasonable length in judicial proceedings, leading to justice being delayed and, consequently, denied. This is chronic and endemic to Malta. Thus, any minimal and simple reform in our judicial system would be more than welcome in speeding up the justice process in the interests of both the accused and the victim in criminal proceedings.

While in the last few years a good number of reforms have been implemented within the justice sector, with others in the pipeline, there is one particular issue that perhaps has not been given its due consideration in the ongoing quest to pre-empt unnecessary and, in many cases, capricious delays attributable to the accused.

In 2008, Maltese courts started recognising court judgments in trials held in absentia in other EU countries following an agreement reached by EU Justice Ministers. In the EU, member states, notably Italy, frequently try defendants in their absence, but the practice is not allowed in other EU member states, including Malta. Maltese criminal law does not provide for the notion of in absentia since, in terms of the law, the presence of the accused must be assured throughout the proceedings.

In 2014, amendments to the Criminal Code were made so that court cases that carry a prison sentence of up to six months can be heard in absentia if the accused does not turn up in court for no valid reason. Those amendments did help, but statistics ostensibly indicate that abuse is more frequent in criminal proceedings that carry a stiffer sentence than six months imprisonment. Our legislators should today consider whether the time is ripe for such exceptions to be widened in order to spread the use of trials in the absence of the accused.

It frequently happens that an accused, despite being duly notified and summoned, voluntarily fails to make court appearances, thus stalling proceedings since the presiding magistrate or judge would have no other option but to adjourn the case to another date much further down the road while ordering the arrest of the accused to ensure his presence for the next sitting. But even there, the accused may, as happens sometimes, resort to all Machiavelli means possible to thwart or hamper the execution of the warrant of arrest.

In absentia trials are a way of allowing society to pursue justice for crimes without permitting the absence of the accused to hamper its aims or fight against impunity. The underlying rationale for holding a trial in absentia is to ensure that the accused cannot delay the administration of justice by opting to be absent from the court.

There are differing criteria as to what constitutes the absence of the accused. Some systems find the accused to be 'present' for legal purposes if they make an initial appearance before the court. For example, if during the initial appearance the accused heard the charges against him and pled 'not guilty', the subsequent proceedings against him will not constitute a trial in absentia, despite the fact that the accused might not be present after the initial appearance.

In the absence of the accused at the time of the trial, the punitive aspect of criminal justice cannot be fulfilled, at least not immediately. Traditionally, a trial in absentia is a step towards accountability but not an end in itself. The punitive aspect is one of the main aims of criminal law. Other aims that must be considered encompass bringing justice to victims and allowing for compensation; fostering reconciliation; creating a historical record; deterring future crimes; and ending the culture of impunity for grave crimes. In principle, all of these aims can be achieved, or at least considerably advanced, through in absentia proceedings.

By allowing the accused to delay or avoid justice by not having a trial for someone who has absconded, the public can be under the impression that the accused is being rewarded for escaping. Trials in absentia may also be seen as supporting the truth-seeking functions of the trial process.

While one can appreciate the reluctance to embrace trials in absentia because of concerns regarding their incompatibility with international human rights standards, those concerns can be easily allayed by providing for a set of necessary safeguards. There should be three such safeguards: notice of the charges, the right to effective representation and the possibility of a retrial.

Regarding the notice of the charges, the State must show that the person concerned was aware of the proceedings. Vague and informal knowledge is insufficient, and any waiver must be expressed. Actual knowledge can be assessed by examining whether concrete steps to give formal and timely notice to the person concerned were taken. Once the test is satisfied, the absence of the accused would mean that he was wilfully not participating in his own trial.

An accused tried in absentia has the right to legal representation. The State must show that the accused was afforded a defence counsel who effectively fulfilled his or her duties. Individuals who are tried in absentia and who later appear before a court must, in all cases, be able to obtain a fresh determination on the merits of the charges, both in law and fact.

Of course, efforts to bring an accused into the custody of the court should remain ongoing.

Dr Mark Said is a lawyer