Same Experts, Same Results? Keith Schembri Slams Inquiries In New Legal Battle
Keith Schembri, former chief of staff to Joseph Muscat, has warned of significant flaws in the court-appointed expert system through a new constitutional case.
Schembri’s case warned that, in every single magisterial inquiry he has been subjected to in recent years, the same experts were assigned to analyse the evidence – namely the now-defunct Harbinson Forensics, Miroslava Milenovic, and Ansec IA Ltd.
He claimed that the courts’ constant reliance on the same experts endangers their “factual independence” through the following means:
- Confirmation bias and preformed conclusions: Schembri is arguing that experts feel constricted to reach certain conclusions so as to protect their conclusions in previous inquiries.
- Financial incentives: With experts paid large sums of money for their work, Schembri is arguing that they are scared they could lose this income if their conclusions don’t align with the magistrate’s beliefs.
- Lack of fresh scrutiny: Schembri is arguing that fresh pairs of eyes could apply different methodologies and bring in new perspectives, whereas the constant reliance on the same experts leads to a sense of “institutional inertia”.
And while the experts don’t take decisions per se, he noted that their findings significantly influence the magistrate’s judgement, particularly in technical cases.
Moreover, Schembri warned that there is an uneven playing field between the experts – who have access to a seemingly unlimited pool of state funds with no checks and balances – and the people they are investigating.
Jeremy Harbinson
He said that while experts send invoices for all sorts of small things, down to their hours while flying to Malta, and that they get to stay in “lavish” hotels, suspects are often unaware that they are being investigated.
This means that they can only request the recusal of these experts after they have been charged in court. However, by that time, they are often subjected to a freezing order, which limits their ability to hire their own experts who can offer a different perspective.
Moreover, if a suspect is found guilty, they must also make good for the court expert’s fees. If they can’t afford this, the fee is convertible to prison time.
“Therefore, if the state decides to pay €20 million on experts in a magisterial inquiry and the suspect is found guilty, they must pay the €20 million themselves or see the fee converted to prison time,” Schembri wrote.
Robert Abela has proposed a revamp of the inquiry system
“This is in breach of EU human rights to enjoy their possessions, as well as the right to a fair hearing. The imprisonment conversion amounts to inhumane and degrading punishment.”
Schembri is asking the constitutional court to declare that the current system breaches the rights of suspects to a fair hearing, creates an unfair disparity of arms against suspects, and breaches their right to enjoy their own possessions due to the risk of convertible prison time.
The case was initially assigned to Judge Doreen Clarke, but Schembri has requested her recusal since she had nominated these experts in one of the cases herself.
Meanwhile, a new government bill revamping magisterial inquiries is proposing more checks and balances on court-appointed experts.
The bill clarifies that experts should only establish facts, and not provide opinions, and must be specialised in Maltese criminal law in their field of speciality. If they aren’t professionally accredited, they will have to be approved by the Department of Justice and the Court Services Agency.
And if expert bills in an inquiry exceed €50,000, the Chief Justice will have to give his consent.
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