Should Malta keep presenting evidence twice?

Speaking in Parliament this week Justice Minister Edward Zammit Lewis confirmed that a review of court procedures was underway.

Among other changes, the reform could significantly shorten, if not altogether remove, the phase of criminal proceedings called the compilation of evidence. 

This stage sees the prosecution present the court with evidence against the accused before deciding if there is enough evidence for them to stand trial before a criminal court.

The system results in significant duplication of work, given that evidence against the accused is presented once again before the criminal court once the proper trial starts. 

Without elaborating, the minister said the reform would prioritise efficiency while respecting principles such as the right to a fair trial and equality of arms between the prosecution and the defence. 

Criminal lawyer and Chamber of Advocates vice-president Stephen Tonna Lowell agreed that the system needed an overhaul but stopped short of saying that the compilation of evidence could be done away with. 

“What definitely needs to be changed is the system of having the court file going back and forth between the court and the Attorney General’s (AG) office,” he said.

“I’d say that 70-80% of the time, the file is outside the court and sitting on some lawyer at the AG’s desk.”

Tonna Lowell also said there needed to be a dedicated pool of magistrates whose job it was to lead magisterial inquiries, which he said were becoming more complex with time. “We’re no longer talking about preserving evidence in a simple traffic accident, some of these inquiries are very complex and end up taking time away from court cases.”

Speed not always a good thing

Asked if Malta could ever achieve the same speed seen in the George Floyd case, Tonna Lowell stressed that this wasn’t necessarily desirable, adding that having a decision so soon after a controversial act could be just as problematic as excessive delays.  

“I wouldn’t look at it as a best practice example,” he said, stressing the difference between expediency and haste when it came to such cases.

“Every case is different. Some have many witnesses and a lot of technical and preparatory work required. At the end of the day, we need to create a structure that takes everything into consideration.”

Indeed, there have been many cases where new information has come to light over the course of proceedings, or where witnesses have changed their testimony in order for justice to be better service, but in general, there is a consensus that more efficiency is needed.

Are trials by jury necessary in drug cases?

Another recommendation Tonna Lowell said could significantly speed up matters in the criminal sphere relates to the trials by jury in drug cases. 

Because the maximum punishment in many of these cases was life, it wasn’t possible to have a trial without jurors, and all of the administrative considerations that go into them. 

With roughly half of the pending trials by jury all related to drug-related crimes, Tonna Lowell said that this should be changed.

“The jury system isn’t something to be criticised, but with drug cases, it isn’t necessary. Nobody has ever been sent to life imprisonment because of a drug case.” 

Like Tonna Lowell, criminal lawyer Joe Giglio also pointed to the case file being transferred back and forth between the courts and the AG’s office as one of the main sources of delays. 

“We have court sittings once every six weeks and the reason for this is that the file is at the AG’s office for one month and in court for another month. Half the year is lost to the file being moved about.” 

Moreover, he said it was problematic that the court was often bound by requests made by the AG, for example when it came to hearing witnesses deemed to be unnecessary by the prosecution and the court.

Better-paid court experts

The fact that the court did not have the discretion to decide for itself when the compilation of evidence should end, was also problematic, Giglio insisted. 

Another factor he pointed to was a lack of court experts as another concern. 

He said it wasn’t sustainable for a handful of people to act as court experts in all cases, especially when considering that some were appointed as experts in different areas. “I don’t think we can go with IT experts who also double as handwriting experts.”

In addition to creating workload issues, Giglio said this also meant a lack of specialisation, adding that it could be addressed by having the courts increase their fees for experts in order for more to offer their services.

Delays aren’t just a problem in criminal proceedings. There’s also a significant backlog of civil cases, especially in the superior courts. 

Chamber of Advocates President Louis Degabriele said there were several initiatives that could be taken to cut down on such delays. “None are radical, but the cumulative effect will lead to more efficiency.” 

Ditch the 19th-century procedures 

Degabriele, a partner at Camilleri and Preziosi who specialises in commercial, corporate and finance law, started by saying that the reason for prolonged court delays was partly due to a number of “obsolete and redundant practices”. 

“At the moment, we’re still working on the basis of processes and procedures drafted in the 19th century. This remains the core of the problem,” he said.

Degabriele added that unless there was an overhaul of such procedures, the country was doomed to keep “patching up” the same inefficient processes. 

One example, Degabriele said, was that processes in court were based on sworn applications. Rather than have people go to the public registry to submit sworn applications, he said it should be possible to submit applications without an oath, which can then be administered in court. 

Similarly, he said that the system of requiring officials from public entities to be summoned for them to submit a single document also needed to be rethought.

While those in the legal profession needed to provide the parameters for any reform, there was also the need for an outside perspective to achieve the desired efficiency.

More magistrates, easier said than done

Malta’s complement of judges and magistrates is another area that has often been described as a stumbling block for increased efficiency. 

“If you look at EU statistics, we are one of the countries with the lowest number of members of the judiciary. This needs to be viewed within the context of the Maltese being very litigious, so the effect is amplified even more.”

Degabriele pointed out that this was easier said than done since, more magistrates also meant the need for more support staff, as well as courtrooms for them to work in. 

Malta’s system, he said, also needed to move towards written pleadings rather than having the need to have “case management hearings” which only serve the purpose of providing information on a case.  

For this to happen, he said that deputy registrars needed to be trained to be able to preside over such hearings themselves, allowing judges and magistrates more time to focus on more important matters. 

Yet another recommendation was making better use of the court building. “It is only used three times a week in the morning. Why can’t we have sittings in the afternoon, or at least have case management hearings in the afternoon?”

System evolved to cater to a small society

Asked whether it was the case that Malta’s judicial system was inherently more inefficient and whether it needed changing from a more fundamental perspective, Degabriele noted that the system reflected, to some extent, the requirements of a small society like Malta. 

“For example, the US has a system where the court is less intrusive. Ours tends to be more intrusive. One can almost say that the judiciary makes the case its own,” Degabriele explained.

“On the other hand, in the US, the judge almost never intervenes, especially if the prosecution and the defence agree about certain things. If there is this agreement, a judge will simply rubberstamp what has been decided. Though this can give you more efficiency, it would also likely raise suspicions here in Malta.” 

Such a system, he said, could lead to a decline in confidence in the courts and the judicial system in general.

Full digitisation on the cards 

In his address to parliament, Zammit Lewis also suggested that work was underway for the courts to become “fully digitised”.

Eunice Grech Fiorini was recently appointed Court Services CEO, with the minister insisting that the priority over the coming months was to improve efficiency. 

“I have had the opportunity to be present in court for a case that was fully digitised, including the submissions,” the minister said, stressing the need for court procedures to be made easier both for lawyers and the general public. 

He said he hoped that there would be ‘wholehearted support on the part of the judiciary’ in this regard. 

It remains to be seen whether the proposed changes will be enough to bring about a significant improvement and to cut down on Malta’s backlog of cases, but it appears that quite a few changes are in the pipeline. 

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