A magisterial inquiry into allegations that the former prime minister’s chief of staff Keith Schembri took a €100,000 kickback on passport sales has been finalised but may never see the light of day. Ivan Martin explains the inner workings of these secretive probes.
What is a magisterial inquiry?
Technically known as a magisterial inquest, according to the Criminal Code, inquiries can be triggered to investigate suspected crimes which carry a prison sentence of three years or more.
Magistrates must receive a request from the police or a private citizen to begin an inquiry, and cannot investigate on their own account.
Investigations do not begin automatically as first the magistrate must ascertain that the necessary requirements for a probe have been met.
Why are magisterial inquiries set up?
Magisterial inquiries are intended to collect and preserve evidence of a potential crime. An inquiry does not establish whether or not a person is guilty or innocent. Instead, its function is to establish if there is enough evidence to file criminal charges.
Each inquiry comes with its own specific terms of reference, which set the parameters within which a magistrate’s investigation must take place.
What does a concluded inquiry look like?
Once satisfied, the magistrate compiles what is known as the procès-verbal. This is an exhaustive blow-by-blow account of every piece of evidence and testimony collected throughout the process.
It can be relatively short, or take up hundreds of pages. Every inquiry ends with the magistrate’s conclusions – these are the last few lines at the end of the hefty document that lay out whether the suspected crime is believed to have been committed.
In recent years, apart from their conclusions, magistrates have also been including re-commendations to address loopholes they discover in the course of their investigations.
Are magisterial inquires made public?
No. According to local law, such inquiries are secret and proceedings are carried out behind closed doors.
The findings, however, can be divulged following a request to the attorney general for a copy of the conclusions.
But this is at the full discretion of the attorney general.
Have any such inquiries been published?
In recent history, some high-profile inquiries have been released.
Most notably, in 2018 the attorney general released the principle conclusions of an inquiry into allegations that then-prime minister Joseph Muscat’s wife Michelle was the owner of offshore company Egrant.
The full inquiry document was eventually made public, but only after opposition leader Adrian Delia won a court battle arguing that an “imbalance” existed in his political opponent being the only one with full access to the findings. It was his decision to publish it.
Criminal lawyers contacted by Times of Malta say that these inquiries are often kept under lock and key by the attorney general, with little known of what comes of them.
Who decides which magistrate leads an inquiry?
Magistrates work to a roster, taking it in turns to be on duty around the clock, seven days a week.
The duty magistrate on the day a report is filed is the one tasked with conducting an inquiry.
How do magistrates carry them out?
Magistrates can summon witnesses, appoint court experts from around the globe, rope in the police, and send evidence to any lab or specialist they wish, all with the aim of deciding whether or not someone ought to be charged with an alleged crime.
Anything said before an inquiring magistrate is admissible as evidence in a court of law, without the need to produce the person to testify in person as a witness.
Anything said during a magisterial inquiry may be used in a trial against an alleged criminal.
What are court experts?
A magistrate has the power to appoint experts who can help assess information relevant to the case at hand.
For an inquiry into a murder, for instance, magistrates usually appoint scene-of-crime officers, ballistics experts, pathologists, photographers and any other expert that the magistrate feels is required to preserve the crime scene.
In the Egrant inquiry, on the other hand, foreign auditing firms and international IT specialists were roped in, along with expert calligraphers to ascertain whether a signature was authentic.
Experts can be given the power to take witness accounts, even under oath.
Who is in charge... the magistrate or the police?
The magistrate is the head of the inquiry, with police offering assistance. However, police often carry out their own investigations into the criminal offence in tandem. There is nothing in the law that stops police from continuing their investigation in parallel with the magistrate’s.
A police inspector or superintendent usually leads the investigation from the police side. These officers have a very important role in the magisterial inquiry, but they work under the guidance of the magistrate at all times.
In the majority of cases, the magistrate and police officers interrogate suspects and witnesses together and they also ask people to come forward as witnesses if they believe that these people could shed any form of light into what they are investigating.
How common are magisterial inquiries?
According to information tabled in parliament before the summer recess, there were 2,027 magisterial inquests ongoing at the start of this year.
Some inquiries have been known to drag on for several years.
Where can one find out more about magisterial inquiries?
Magisterial inquiries are regulated by Articles 546 to 569, Chapter 9 of Malta’s criminal code.
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