Some provisions of our criminal procedure, which regulate the prosecution and hearing of certain criminal cases, date back to the 19th century. They are pedantic and lead to inordinate delays before the courts of criminal justice. These delays cause unnecessary hardship to the accused, victims and their families.
In the case of the prosecution of certain serious offences, whose punishment exceeds the jurisdiction of the Court of Magistrates as a court of criminal judicature, there are two state players.
On the one hand, there is the Court of Magistrates sitting as a court of criminal inquiry (which conducts the so called kumpilazzjoni or istruttorja). On the other hand, there is the attorney general (AG).
The scope of this inquiry is to compile all the evidence (even that which could eventually be declared inadmissible by a higher court). The law says that this is to be done within a month, extendable to a maximum of three months, after which the magistrate is to send everything to the AG for the latter to file the bill of indictment in the Criminal Court to kick-start the proceedings in that higher court.
In practice, due mainly to the heavy workload of every magistrate, it works out quite differently.
The magistrate presiding over the compilation of evidence allocates a number of sittings over the course of 30 days. Witnesses are heard and evidence is presented. At the end of that month, the magistrate, having decided that there is sufficient evidence for the indictment to be filed by the AG, sends the voluminous paperwork of that particular case to the AG, even if it may be patently evident that there is still more evidence to be collected. Thus begins the regular carting of box files back and forth between the AG’s office and the law courts – a sad sight indeed.
The AG then has another month within which to read the proceedings of the previous month and to file the bill of indictment. If, however, not all the evidence has been collected by the magistrate, the AG will draw up a note to indicate to the magistrate which witnesses need to be produced during the subsequent month. And the next trip to the law courts with large suitcases – the modern version of wheelbarrows – containing hundreds or thousands of papers takes place.
I believe that the time is ripe for a wholesale root and branch reform of this system
And this judicial, time-consuming and embarrassing ping-pong takes place over the course of many months in each and every major criminal case. Sometimes, it takes close to two years in very major crimes.
At the tail end of this tortuous back and forth, the AG normally files a bill of indictment, usually motivated also by the fact that, if the accused is being held on remand without bail and the indictment is not filed within a certain time, the accused will automatically be granted bail. Eventually, the trial by jury is held, during which practically all the evidence that would have been compiled by the magistrate during the istruttorja is produced yet again.
In other words, the trial is heard twice over – the first time simply as a form of discovery by the accused of the prosecution’s case, the second time to determine the guilt or otherwise of the accused.
In the last few years, major reforms have taken place in the UK, Australia and Canada to bypass this legal monstrosity. This year, Northern Ireland will be adopting a bill precisely to reform their compilation of evidence stage.
In 2012 and 2013, the UK carried out a radical reform of the committal system, with many cases now sent straight to the Crown Court as soon as it is clear the matter is serious enough, rather than having to await a committal hearing, which slows the justice process down significantly.
I am on record as having brought this matter up in parliament various times, as recently as on October 7.
I believe the time is ripe for a wholesale root and branch reform of this system. We can shave off countless months from certain criminal procedures that cause huge delays and prolong the trauma of victims.
In parliament last month, I again encouraged the justice minister to take up this worthy challenge and offered all the cooperation and assistance of the opposition. Needless to say, the Chamber of Advocates and the AG’s office would have to be an essential part of this consultation process.
Immediately after my intervention, the justice minister was kind enough to take up the suggestion and told me that, together, we can do it.
Yes, minister. We can do it. The opposition is waiting for the government’s invitation for us to meet and get cracking to solve this problem and to provide a more efficient form of criminal justice.
Jason Azzopardi is shadow minister on justice.
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