Investigating magistrates’ pool requires massive investment

Justice Minister Owen Bonnici has remained cautiously upbeat amid mounting calls for a complete overhaul of the criminal justice system, promising that his ministry will continue streamlining proceedings.

Earlier this month, on the occasion of his inaugural sitting as a judge, Mr Justice Giovanni Grixti highlighted the need for the restructuring of criminal prosecutions and the more prominent role of the office of the Attorney General.

He proposed the separation of the investigative and prosecutorial functions of the executive police: the creation of a pool of magistrates who would specialise in conducting criminal inquiries and the entrusting of all prosecutions to the office of the Attorney General.

“While being in agreement with Mr Justice Grixti’s proposals that prosecutions should be led by lawyers answerable to the Attorney General, the actual implementation brings with it significant logistical and capacity building challenges which the Ministry for Justice will tackle,” the minister said in his reply to questions sent by this newspaper.

“The government will shortly initiate a pilot project under which the prosecutions in front of the traffic sittings presided by Magistrate Francesco Depasquale will be led by a lawyer, and not by the police. We will then draw up on the lessons learnt by this experience and then consistently but judiciously extend lawyer-led prosecutions to other Halls,” he added.

This will no doubt come as a relief to the beleaguered police inspectors, who must investigate crimes, gather the evidence and subsequently come up with a “game plan” on how to prosecute the majority of criminal cases.

A quick straw poll of police inspectors unanimously backed any plan to reduce their court duties, which take up most of their mornings and often trickle on into the afternoon. Shifting prosecutorial duties to the Attorney General’s office would allow the police to dedicate their full focus onto investigating crimes, they argue.

The calls for reform – and indeed the ideas – are not new. As far back as November 2011, lawyer and former MP Franco Debono had tabled several related proposals over five years, as well as a private member’s motion on the matter.

Debono’s contribution to the inexorable, but glacially-paced, move towards reform is undeniable, he having highlighted the need for fundamental reform in separating the adjudicating role of magistrates from their inquiring role, as well as the separation of the investigative and prosecutorial roles of the police in his very first parliamentary adjournment speech in May 2008.

“Justice reform, and the need for justice reform originates from the law courts,” he had said then.

“The courts should be a living monument to all those people whose rights were breached as a consequence of an outdated justice system which had been left in neglect for years.”

Debono, now Commissioner of Laws, assures that he continues to work closely with Bonnici and is in the process of implementing further reforms “in the coming months”.

He is evidently gratified that the wheels of his reforms were finally turning. “The findings of the so called [Giovanni] Bonello report strengthen and confirm what can be referred to as the ‘Debono Reform’ which I presented in Parliament over a period of five years culminating in my private member’s motion of November 2011. Even a superficial analysis of the report reveals that the very core and vast majority of proposals therein originate from my proposals made two years earlier in Parliament or even before.”

Debono praised the government’s decision to appoint an independent commission, which he says, essentially reached the same conclusions and confirmed his proposals.

In his speech welcoming Mr Justice Grixti, the president of the Chamber of Advocates, George Hyzler, did not mince his words, highlighting the fact that while Malta lays claim to the third-highest number of lawyers per capita vis-à-vis the rest of the world, it still ranks among the bottom countries insofar as the number of judges and magistrates and court spending per capita are concerned.

And more spending there must be. Criminal defence lawyer and former prosecutor at the office of the Attorney General, Stephen Tonna Lowell, estimates that for Mr Justice Grixti’s proposals to be implemented, the office of the Attorney General would need to increase its complement by 20 lawyers “at the very least.”

Tonna Lowell explains that shifting prosecutions away from the police would require a complete overhaul of the Attorney General’s Office.

“The lawyers who work in the criminal section of the Attorney General’s office have to deal with an enormous workload: they go through every single compilation of evidence once a month, they go through judgments of the Court of Magistrates and, where necessary, file appeals, they draft indictments,” he says in an exhaustive list of duties for them.

And then there is the pre-trial stage after the filing of the indictment, prosecution in trials by jury and before the Court of Criminal Appeal, reviewing magisterial inquiries, mutual legal assistance with EU and non-EU countries, attend seminars and conferences abroad to write reports and carry out follow-up work, and reply to a multitude of applications sent to them by the various courts of criminal jurisdiction.

“They choose the court before which proceedings should be taken in drug and money laundering cases, they review bail conditions, act as advisers to the Police,” Tonna Lowell says.

“And all this with a complement of around 10 lawyers. In other words Mr Justice Grixti’s proposals are excellent but not doable without a restructuring of the Attorney General’s Office. Restructuring means manpower – not only lawyers, as well as financial resources and work space – the premises are full to the brim and cannot take many more lawyers.”

Is it viable, Tonna Lowell asks himself. “That is the question.”

More importantly, is the government ready to put its hand in its pocket to finance these much-needed and long overdue reforms?

Putting aside the tribulations of the notoriously and permanently overstretched prosecutors and police force, even if only for the sake of the gains in expediency, efficiency and effectiveness in the administration of justice, one certainly hopes so.