The Chamber of Advocates is studying the newly proposed reform into how magisterial inquiries are conducted but is concerned over several proposed measures, chamber president Peter Fenech told Times of Malta in an initial reaction.

Meanwhile, former police commissioner Peter Paul Zammit believes that the “sorely needed” reform introduces important safeguards but does not go far enough to shorten inquiry times.

The reform, presented on Thursday afternoon, is set to make the police the first port of call when requesting a magisterial inquiry, with inadmissible evidence no longer allowed to be part of the request.

Police-first approach could be problematic

Both Zammit and Fenech say that leaving the investigation in the hands of the police for an initial six months could pose a problem, albeit for different reasons.

“Trusting the rule of law in the hands of the police has let us down over the past decades,” Fenech says, hinting at past cases in which police dragged its feet or turned a blind eye when faced with potential criminal action.

Zammit is less categorical but worries that the move could lead to delays in instances where the police and courts disagree on the way forward.

“There have been cases in which the police have not found a case to investigate but a magistrate has,” Zammit says. “These cases already tend to drag on for years, but this won’t help.”

And, he adds, the police are not allowed to appoint third-party experts on their own steam during an investigation, instead relying on the magistrate’s go-ahead before engaging an expert.

Whether this will change with the new legal framework “raises a question mark,” he says.

Any move which curbs the right of the citizen to protect the upholding of the rule of law is a concern- Chamber of Advocates president Peter Fenech

Deadline is too long

More broadly, Zammit believes that the reform doesn’t go far enough in tackling the issue of interminable inquiries and judicial delays, for which he says Maltese courts have frequently been chided by European justice watchdogs.

“The two-year deadline set by the reform is too long,” Zammit says. “An inquiry shouldn’t last two years. Even the initial six-month soft deadline is quite long.”

And it’s also unfair for victims to have to wait half a year before being updated on where the process is at, he believes.

“Victims should be given a monthly update, with important developments being communicated instantly.”

Inquiries shouldn’t rely on hearsay

But Zammit agrees with one of the reform’s more controversial measures, to prohibit the use of inadmissible evidence as part of a request for an inquiry.

“If you’re calling for someone to be investigated you can’t be relying on hearsay,” Zammit says.

Fenech says the chamber agrees in principle but sounds a note of caution.

“We agree that one shouldn’t come forward with hearsay and should have something more substantial in hand,” he says. “But, without having seen the bill, it’s not clear what is meant by admissible in this context. This measure could be of concern.”

And Fenech says that the chamber also has reservations over a measure which would see anyone submitting an abusive or bad-faith request for an inquiry potentially footing the inquiry’s bill, describing the measure as “dangerous” and “a possible deterrent”.

What is defined as inadmissible evidence is as yet unclear, he says.

“Any move which curbs the right of the citizen to protect the upholding of the rule of law is a concern,” Fenech says.

Zammit has a slightly different take.

“If someone is found to be knowingly submitting a false or abusive request, then they are abusing of public funds,” he says. “I don’t see why they shouldn’t be made to pay those funds back.”

Court experts hidden behind a company

Both Zammit and Fenech welcomed the attempt to control expenditure on court experts, although Zammit questions the wisdom of seeking the Chief Justice’s go-ahead to exceed a €50,000 threshold, rather than adopting a more structured approach used in countries like Italy.

And Zammit also agrees “100 per cent” that a magistrate should only name individuals as court experts.

“Courts experts shouldn’t be hidden behind a company, ultimately an individual needs to be responsible.”

But, he says, that doesn’t mean that the individual shouldn’t be allowed to enlist the help of others where necessary.

Experts’ opinions are sometimes needed

A court expert who spoke to Times of Malta under the condition of anonymity also questioned whether the reform would shackle experts’ ability to assess a case, with the new law reportedly clarifying that experts should stick to presenting facts, rather than opinions.

“Opinions based on professional experience shouldn’t be thrown out of the window,” the expert said. “There are situations in which an expert has to assess the probability of an event based on the facts at hand.”

And what would happen if a court expert is later asked for their opinion once they are under cross-examination, the expert asked. Would they be allowed to offer up an opinion in that situation?