An inquiry, criminal charges and what’s next for Muscat & Co.

Former Prime Minister Joseph Muscat, his chief of staff Keith Schembri and former minister Konrad Mizzi are among a group of people to be criminally charged in connection to the hospitals deal.

Below we break down the next steps in what will happen in court:

What is the aim of a magisterial inquiry? What does an inquiry do?

In simple terms, magisterial inquiries are there to do two things: Collect and preserve all evidence and material traces relating to an incident; recommend whether or not the police should press charges and if so, what charges to press.

Does an inquiry have to be concluded in 60 days?

Contrary to disinformation in circulation, inquiries do not have to be concluded within 60 days. The law only states that if it is not completed in 60 days, the magistrate shall draw up a report stating the reason for the delay, and this report shall be transmitted to the Attorney General within three working days from the lapse of the 60 days. After that, the magistrate has to send reports, explaining the reasons for the delay, to the Attorney General, at the end of every subsequent month.

Do suspects under investigation have a right to testify during an inquiry?

The Criminal Code doesn’t contemplate such a scenario, much less grant this as a right. However, should this argument be raised, it will probably be based on a fundamental human rights approach, which is more flexible and has a much wider scope. Suspects who are identified in an application filed by a private citizen requesting a magisterial inquiry have a right to be notified with the application and to file an objection. No such rights are enjoyed by individuals who emerge during the course of the inquiry. In the Vitals inquiry, the original request was filed against Konrad Mizzi, Chris Cardona and Edward Scicluna.

Wait a minute, that doesn’t seem fair on the suspects.

If the decision is taken to press charges, they will receive disclosure of all the evidence against them after arrest; or if not arrested, during the compilation proceedings. It must be noted that during the compilation of evidence, the court does not establish guilt, but takes custody of the evidence and decides whether there is sufficient evidence for the defendant to stand trial on indictment, or whether further evidence is required.

Do suspects have a right to release a police statement before being charged?

This does not emerge from the law, either. However, a practice has developed whereby suspects are given the opportunity to release statements by the police before they press charges. This takes on added significance in money laundering proceedings, where the burden of proof is inverted. Whereas normally, the prosecution must prove their charges beyond reasonable doubt, in money laundering cases, the prosecution only has to reach a lower level of proof, known as prima facie (in layman’s terms ‘on the face of it’), after which the defendant is required to prove that the funds came from a legitimate source.

Joseph Muscat is being arraigned by summons. What does this mean?

Arraignment by summons is the less glamorous sister of arraignment under arrest. Instead of being put in handcuffs and driven to court in a police van, the suspect is ordered to appear in court on a given date and at a given time. The law doesn’t give much in the way of criteria as to whether the prosecution should arraign under arrest or by summons and only says that the latter shall be used “where there are not sufficient grounds according to law for the arrest of any person charged with an offence.”

The summons has to contain a clear designation of the person being summoned and a brief statement of the facts of the charge, together with other details deemed necessary on a case by case basis. It must also contain a warning to the effect that, should the person summoned fail to appear in court on the specified date, they will be arrested and arraigned under arrest.

But besides the obvious doing away with the necessity for bail, this method of pressing charges has a number of important implications which aren’t immediately apparent.

There is a tactical downside to charging suspects by summons, because the law does not oblige the police to send for or interrogate – or even inform – the suspects before deciding to issue the charges. The corollary to this is that, as there is no arrest, there will be no interrogation, and therefore neither does the suspect have the right to be shown what evidence the police have against the individual (commonly referred to as ‘the right of disclosure’).

Although there may well have been good reasons for the prosecution to have gone down this route it is equally likely that the defence lawyers will now begin filing constitutional cases or constitutional references claiming their clients had suffered a breach of their right to disclosure, and consequently their right to a fair trial.

Will the accused ask for bail?

They don’t need to ask for bail. A bail request is made when the defendant is charged under arrest. Since arrests don’t feature in proceedings by summons, there is no need for bail.

What are the charges?

Not all individuals are facing the same charges. Joseph Muscat and Konrad Mizzi are being charged with money laundering, fraud and making fraudulent gain, as well as conspiracy to commit an offence punishable by imprisonment for more than four years and participating in a criminal organisation with more than 10 members. They are also being charged with accepting bribes and corruption in public office. Keith Schembri is being charged with offences related to the solicitation of bribes and abuse of his office to exact an unlawful advantage “through threats or abuse of authority”. Other people are being charged with assisting or facilitating the wrongdoing of the politicians involved, while others have been charged with corrupting public officials.

The names of several people who will be charged are public. What about the rest?

The charges are understood to have been issued in batches, the first against 14 people and eight companies. The rest will be charged in another batch.

Will the magistrate hearing the case be the same as the inquiring magistrate?

The cases have been divided in two groups and assigned to two different magistrates, neither of whom is the magistrate who led the inquiry. The first batch, which includes Muscat, Mizzi and Schembri, has been assigned to Magistrate Rachel Montebello.

Will the accused go to jail?

This depends on the offences with which they are charged but the more serious offences such as money laundering, corruption, bribery and fraud, all carry prison sentences should guilt be found. There are also other factors and sentencing considerations, which will come into play. Lawyers will no doubt complicate matters further in due course and we don’t recommend you hold your breath. It will be a long time before these cases are concluded.