The role of the court expert has come under recent scrutiny, following forensic accountant Jeremy Harbinson’s refusal to travel to Malta to testify in the Vitals criminal case.

Harbinson is one of the authors of a 1,200 page report into the privatisation of Karin Grech, St Luke’s and Gozo general hospitals used as a basis for corruption charges against dozens of prominent people, including former prime minister Joseph Muscat.

In an affidavit last month, Harbinson said he would not travel to Malta out of fear for his safety, adding that if experts were expected to testify, this should come against payment as part of a new contract.

Harbinson also said the report was not meant to be used directly as a basis for prosecutions and was intended for the magistrate’s eyes only, not to be shared with third parties.

Madam Justice Edwina Grima took exception to Harbinson’s claims, insisting that he could be summoned to testify under Maltese law.

Meanwhile, NGO Repubblika accused the government of failing to implement regulations that would allow Harbinson to testify by video, a claim promptly rebutted by Justice Minister Jonathan Attard.

This all comes against the backdrop of a proposed reform that is set to transform how court experts are selected and hired.

What exactly is the role of a court expert?

The actual duties and obligations of court experts are set out by the criminal code, which includes a broad outline of what is expected of them.

Meanwhile, the duties of court experts are fleshed out a little more in a set of guidelines published by the Council of Europe, which are meant to provide a “reference framework” for all the council’s member states, including Malta.

These guidelines set out the selection criteria against which experts are to be appointed, what sort of work they are expected to carry out and how they are to present their findings.

Malta’s criminal code says that whenever a case requires some form of specialised knowledge or skill, the courts (or, in this case, a magistrate) is at liberty to engage “the necessary experts” and direct them to “receive documents and to examine witnesses on oath”, among other things.

If the experts are collecting fingerprint or DNA data, they must hand a copy of their findings over to the police, the law adds.

With the law as it now stands stating that a magisterial inquiry should be completed within two months, the experts appointed by the court are, at least on paper, also expected to finish their work within this window, although many inquiries often drag on longer than that.

Once their work is complete (or the inquiry closed), the expert submits a report to the magistrate, who then uses it to decide how to proceed in the case.

Does their work become part of the inquiry’s report?

Yes, an expert’s written report must be annexed to the inquiry report (referred to fancifully as the procés-verbal), effectively becoming part of the report, Maltese law says.

This is the same procedure as to what takes place with, for instance, witnesses’ statements, which are also annexed to the report.

And the inquiry report, together with any other documents or material used to draw it up, “shall always be produced at trial”, the law says.

This means that, by default, any report produced by an expert is destined to make its way beyond the magistrate’s reach and will be exhibited in court as evidence.

The expert has the duty to appear in court

Do experts have to testify?

Once the inquiry is concluded and the process moves towards the compilation of evidence stage, the law says that the police or the attorney general can summon experts to give evidence.

They can also be summoned “for the purpose of cross-examination”, the law says.

Additionally, aside from the police or the AG, the court can “order the production of any expert or other witness” to be included in the list of witnesses to testify at any stage of the trial.

The Council of Europe’s guidelines on court experts also leave little room for interpretation on the matter. “The expert has the duty to appear in court and to explain his report verbally if required,” the guidelines say.

What do court experts say?

Court experts who spoke to Times of Malta confirmed that testifying is widely understood to be an automatic obligation once a court expert agrees to take on a job.

But, they said, this is never presented to them black on white, with the courts typically failing to even notify them of their appointment formally in writing, let alone draft a contract outlining their obligations.

The same applies when it comes to court experts’ compensation, with experts saying that they are not asked to list their fees before being appointed on a job.

“But since there are relatively few court experts, the authorities usually have a broad idea of what we charge,” one expert said.

As one expert pithily put it, “the system ultimately works on a basis of trust”.

Court expert fees have become a bone of contention in recent months, with experts on the Vitals case reportedly paid over €10m for their work on the case.

A reply to a 2024 parliamentary question suggests that Harbinson Forensics alone received some €18.3m in payments to act as court experts on several cases between 2017 and mid-2024.

What will change with the proposed reform?

A proposed reform unveiled last month is set to change how court experts are appointed, with the authorities arguing the changes will bring about greater accountability.

For a start, the new rules say that only individuals, rather than companies, can be appointed court experts, bringing Maltese law in line with the Council of Europe’s guidelines.

And while magistrates will still be at liberty to select experts, they will have to explain their reasons if they pick somebody who is not already on a court-approved list of experts.The new rules also try to place greater controls on court experts’ fees, saying that foreign experts will have to be paid at a rate “as much as possible normally applicable to payments made to professionals for comparable work in Malta”.

Meanwhile, a magistrate would need permission from the chief justice if the cost of an inquiry’s court experts will top €50,000.