Joseph Muscat and key figures face charges in the hospitals deal scandal and will be arraigned under summons, not arrest.

The former prime minister, his chief of staff, Keith Schembri, ex-minister Konrad Mizzi and others will likely be informed this week of the charges they face.

So too will deputy prime minister Chris Fearne, Central Bank governor Edward Scicluna and others who stand accused of fraud. 

But when they eventually face Magistrate Rachel Montebello, they will not do so under a state of arrest.

When the attorney general and the police want to issue criminal charges against a person, there are two ways to go about it. The person can either be arraigned under arrest or they can receive a court summons at home ordering them to appear in court to face charges on a specific date and time and in front of a specific magistrate.

What is the difference between an arrest and summons?

A person charged under arrest is taken to court by the police in a state of arrest. After the charges are read out in open court and the person pleads guilty or not guilty, that person has to be granted bail to be released from the state of arrest pending the outcome of the court case. If they aren’t granted bail, they are remanded in custody. The bail conditions usually include depositing their passport in court to ensure they cannot leave the island as well as other conditions that may include signing the police bail book, a curfew, house arrest and a deposit or personal guarantee.

In the case of a summons, bail is not needed since that person was never in the state of arrest.

They, therefore, do not risk being remanded in custody but the court has the discretion to order that the accused deposits his or her passport in court.

In other words, Muscat and all those charged will be free to return home after they - presumably - plead not guilty to charges during their arraignment. But the court will still be able to temporarily confiscate their passports, if it deems that necessary. 

The former prime minister, his chief of staff, Keith Schembri, ex-minister Konrad Mizzi and others will likely be informed this week of the charges they face. Photo: Times of Malta

On what grounds is one system picked over the other?

According to the law, when the attorney general and the police issue charges they have to consider the risks.

The decision centres around three questions:

1. Is there the risk that the person absconds?
2. Could that person tamper with evidence?
3. Is there a chance of the person committing another crime?

If the answer to any of the three questions is a ‘yes’, then the person is charged under arrest.

If all three questions result in a ‘no’, then the arrest is not justified and the person is charged by summons.

The goal of the law is to ensure the accused turns up to face charges while maintaining the presumption of innocence and the fundamental right to liberty.

The severity of the crime does not come into it, unless it can result in fears of absconding, tampering with evidence or committing another crime.

What if a person charged by summons does not turn up in court?

When the prosecutors opt for summons, they first send the charges to court.

The case is assigned to a magistrate, in this case Magistrate Montebello, and the summons sheet (containing date, time and magistrate) is delivered to the accused by police officers.

If a person who is served with a summons does not turn up for the sitting, then an arrest warrant is issued against that person.

This is spelt out clearly in the summons document that is delivered to the person facing the charges.