Inconsistent judgements

Every now and then we read contributions in this newspaper on conflicting court judgements. This applies both to criminal and civil cases.

There are many factors that lead to such inconsistent judgements, ranging from lack of sufficient knowledge on the part of the judiciary and judicial assistants of the existence of a previous judgement on the same merits to a different appreciation of the punishment to be inflicted depending on the forma mentis of a particular judge or magistrate who may be perceived to be too lenient or too harsh with the accused in a criminal forum. Let me give a few examples.

The Constitutional Court, within a period of less than a year, has declared mandatory arbitration to be both legal and illegal at one and the same time.

The Court of Appeal (superior jurisdiction) has decided that it is possible for the Planning Appeals Board to decide two appeals in one judgement while the same Court of Appeal sitting in its inferior jurisdiction has decided the obverse!

Again, in the criminal law field, our courts have been criticised to be weak with locals but very harsh with foreigners when inflicting punishments. At other times, when one compares the punishment inflicted by one court to that of another with regard to what appears to be a similar charge, one notes quite a discrepancy in punishment.

Of course – to be just with our courts – there are several factors that have to be considered before making odious comparisons and rushing to premature conclusions. These include the ages of the offender and victim; the probative force of the evidence adduced by the prosecution; the criminal record of the accused; the credibility of the witnesses; the conclusions of expert witnesses; the effectiveness of defence counsel; the aggravation or otherwise of the crime charged; whether the accused has admitted the charge on arraignment; whether the accused has cooperated with the prosecution and to what extent etc.

That said, however, several letters to the editor continue to criticise the courts for lack of consistency in meting out punishment.

Being a lawyer by profession who worked at the court of justice, especially within a criminal court context for several years, I do read these contributions with a pinch of salt knowing that the members of the public who would have written those letters would probably not have read the actual text of the judgement let alone the court file. Hence, the objectivity needed to criticise such court judgements would be manifestly lacking. However, this does not exclude the fact that, in certain similar situations, the punishment inflicted by one member of the judiciary differs considerably from another punishment awarded by another member of the judiciary on similar facts.

What is the solution to avoid judicial inconsistency? Various measures can be adopted, including the following.

Judicial training: The more the law becomes complex, more time needs to be invested in judicial training. The Judicial Studies Committee is doing an excellent job but attendance to such training sessions should be made compulsory by law and intensified to at least one seminar every three months. The parties to a case should have a right to a well-trained adjudicator.

Research for the judiciary: Although judicial assistants do carry out invaluable research, the office of judicial assistant is limited to the courts of civil jurisdiction and only to the superior courts. Judicial assistants should be appointed to all courts, whether civil or criminal, whether superior or inferior or whether it is a court or other tribunal presided by the judiciary.

Moreover, research should be organised. It should be accessible to all members of the judiciary and not only to that member who has commissioned it. Information technology should, thus, be used to ensure a wider dissemination of such research among the judiciary.

Sentencing policy: Insofar as the criminal courts are concerned, the courts should formulate their own sentencing policy rather than leaving it up to Parliament or the Executive to do so. This should ensure more consistency in the awarding of punishments in the criminal law field.

Case annotations to the laws: The Law Commission should be tasked with the duty of publishing an annotated version of the Laws of Malta, at least, initially, starting with the Civil Code, the Criminal Code and the Code of Organisation and Civil Procedure. This essentially means that, next to each provision of the law, the pertinent case law on that provision is listed so that when a judge or magistrate comes to deliver a judgement on a specific provision of the law, s/he would at least know the obtaining case law on that provision.

It does happen, especially with old unpublished judgements, that the judiciary would be unaware of a previous judgement delivered on a similar point because there is no synopsis or summary of all the judgements delivered by Maltese courts available to consult. This tool will also be useful for judicial assistants and the legal professions.

Giving of reasons for judgements that run counter to established case law: Although Malta does not adopt the doctrine of precedent, there is no doubt that judgements of the Constitutional Court, the Court of Appeal and the Court of Criminal Appeal are authoritative in nature and of persuasive value. Hence, if one of these superior courts of second instance or a lower court were to bring about a shift in case law, and this is acceptable by current practice, the court in question should be obliged, on pain of nullity, to give detailed reasons why established case law is not followed.

I do recollect a judgement of the Civil Court where the presiding judge had ditched a long string of consistent case law decided by the Court of Appeal on a specific area of the law without even giving reasons why he had departed from established case law.

Plan for the justice sector: A plan for the justice sector needs to be drawn up to identify all the difficulties that exist in this sector with a view to proposing concrete solutions and ensuring that these solutions are implemented. A sub-committee of the Commission for the Administration of Justice should be tasked to carry out this task. The commission needs to be more proactive in the field of judicial reform and if it does not have the necessary resources to do so then it should be given adequate resources. Otherwise, piecemeal solutions, as have been adopted over the years by diverse administrations, will take us nowhere.

Prof. Aquilina is the Dean of the Faculty of Laws at the University of Malta.