It was quite a flashback, last week when the PN shadow justice minister, reacting to a statement by his counterpart in government about the committal stage in criminal proceedings, penned an interesting opinion piece about changes to criminal procedure.
It seemed to echo my exact same proposal of almost 10 years earlier, effectively constituting the solid foundations and general structure of a holistic justice and constitutional reform that has been unfolding in the years since then.
However, as so many of those proposals have since been implemented, in a process that has gained momentum in recent months, while some fine-tuning could be necessary, I am not so sure now that any radical overhaul is required, as also hinted by The Sunday Times’ well researched, pragmatic and down to earth editorial of last Sunday.
The compilation of evidence (kumpilazzjoni) is one of the main three stages in criminal proceedings, the first being the police investigation and magisterial inquest (inkjesta) intended to preserve the evidence and, possibly, determine the identity of the perpetrator/s.
While the third stage is that of the trial proper, which may be either a trial by jury in the most serious crimes or else by the court of magistrates in less serious offences, the compilation of evidence is the second or intermediate stage, where a suspect has been arraigned, formally charged and evidence is heard by the Court of Magistrates as court of criminal inquiry in his presence.
One crucial function of committal proceedings is to determine if there is a prima facie case to answer and, thus, either commit the accused to trial or else order a discharge, thus preventing the unjust continuation of proceedings based upon very weak or blatantly insufficient evidence.
Moreover, committal are discovery proceedings where witnesses are examined and cross-examined, a process where evidence is compiled serving as a basis for the drawing up of the bill of indictment by the attorney general and, subsequently, presented at the trial proper, while allowing the accused to discover and examine the evidence brought against him so that he can prepare his defence accordingly.
The terms criminal inquiry, compilation of evidence and committal proceedings, all referring to the same stage, serve to show the multipurpose function and important role of the kumpilazzjoni. Far from being some unnecessary or trivial formality it is one of the various criminal justice safeguards against miscarriages of justice.
One should always strive for quality in justice rather than quantity- Franco Debono
Secondly, only a small single-digit percentage of cases eventually end up in front of juries, with the already compiled evidence having to be reheard since the rest are decided by the same magistrate that conducted the inquiry (kumpilazzjoni), where the evidence would not be reheard before final judgment and, thus, no duplication would take place!
Furthermore, one must keep in mind that anti-delay mechanisms are already built in the equation. Article 401 of the Criminal Code provides that the inquiry must be concluded within a month and article 550 provides that, during the inquiry (kumpilazzjoni), there is no need to resummon witnesses who already testified in the inquest (inkjesta) unless expressly requested by the parties.
Thus, the real problem with delays doesn’t seem to lie in the inquiry itself but in what are known as rinviji (notes of renvoi). Since it is very difficult if not impossible or impractical to close the inquiry in the one-month time limit, the law provides for the acts to be remitted to the attorney general who would, within six weeks, by means of a note of renvoi, indicate what witnesses and other evidence he wishes to be produced.
However, the recent implementation of what I had proposed in parliament way back on November 18, 2008 goes a long way in addressing these inquiry shortcomings: “In our system, in the inferior courts, before magistrates, it is the police who prosecute, ... so from investigators the police become prosecutors. I think the time has come for them to be assisted in court by lawyers with the attorney general helping in the prosecution. And this for the good of the whole judicial process.”
For, now, attorney general lawyers are actively and directly participating in cases, being physically present in court, whereas, previously, they only followed remotely when they received the records of the case at the attorney general’s office! Just like the remote participation of attorney general lawyers had necessitated rinviji, their direct participation is bound to make rinviji, the real headache, redundant and obsolete in due course.
The attorney general’s office also needs more human resources and the judicial complement needs to increase.
Moreover, magistrates who very efficiently wrap up inquiries in a few months, which is the rule, rarely hit the headlines and it is, unfortunately, the exceptional delays that make it to the news.
Moreover, the separation between the investigative and prosecution roles of the executive police, the right to legal assistance during interrogation, the recently introduced separation of the attorney general’s roles as public prosecutor and counsel to the government, all elements of the radical overhaul in criminal procedure – points two, five, seven and eight respectively of my 2011 private members’ motion – as well as my proposal from 2008 to involve attorney general lawyers in the compilation of evidence stage all emanate from a holistic vision for justice I had formulated in parliament, which holistic approach is so important in this sector as clearly highlighted in last Sunday’s editorial.
Granting the system some breathing space after such important reforms, allowing it to absorb them before further fine-tuning interventions could lead the system itself to show the way ahead in a natural way.
Justice at a snail’s pace is not justice within a reasonable time but then neither is justice at the speed of light. One should always strive for quality in justice rather than quantity. As I had said in parliament in a June 2012, speech statistics can be grossly misleading for people are not numbers. While a ‘lazy’ justice system is not good, one which rushes hastily is even worse. Both extremes are wrong and somewhere in the middle lies the Aristotelian golden mean.
Further improvements? By all means. Examine the Irish model perhaps. Yet, even when one seeks to tackle delays and speed up proceedings, the guiding principle should be less haste more speed, always keeping in mind that individual liberty is at stake.
Franco Debono is a criminal trial lawyer and a former Nationalist MP.