A magisterial inquiry, requested by Prime Minister Joseph Muscat, is under way into the allegations made by Daphne Caruana Galizia that his wife, Michelle Muscat, owns a Panama-registered company, Egrant Inc, into whose account in Dubai a million dollars was transferred. Matthew Xuereb explains the inner workings of a magisterial inquiry with the help of legal experts.
When is a magisterial inquiry requested?
There need to be two criteria for a magistrate to start an inquiry: the crime carries more than a three-year jail term and the evidence requires immediate preservation.
Can the magistrate start an inquiry on his own account?
No. He or she needs to receive a request from the police or form a private citizen following a report, information or complaints. Magistrates have a roster whereby one is on duty around the clock, seven days a week.
Can the police start an investigation on their own account?
Yes. According to article 346 of the Criminal Code, the police are duty-bound to act on any information that comes to their attention, because it is their duty to preserve public order, to investigate offences, collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders to court.
Do the magistrate and police compete?
No. The inquiring magistrate and the police usually work in tandem. The magistrate heads the inquiry with police assistance, but it is the magistrate who has the lead role and the police should follow his orders.
The police inspector or superintendent, who usually lead the investigation from the police side, have a very important role in the magisterial inquiry but they work under the guidance of the magistrate. The specific role are quite clearly defined in the law.
In the majority of cases, the magistrate and police officers interrogate suspects and witnesses together and they also ask people to come forward as witnesses if they believe that these people could shed any form of light into what they are investigating.
Does the magistrate work in a vacuum?
No. The main tool the magistrate has to carry out the inquiry in the best way possible is the appointment of experts, depending on the case being investigated. If it’s a murder, for example, the magistrate appoints scene-of-crime officers, ballistic experts if firearms were used, pathologists, photographers and any other expert that the magistrate feels is required to preserve the crime scene.
Experts can be given the power to take witness’ accounts, even under oath.
There is nothing in the law that stops the police from continuing their investigation in parallel with the magistrate’s.
Can one refuse to appear before an inquiring magistrate?
No. Although a magistrate presiding over an inquiry is doing this in his personal capacity as a magistrate, rather than in representation of the Court of Magistrates, he or she still has the powers of a magistrate presiding over a court.
If a magistrate summons anyone to appear, this must be obeyed. Usually, people are summoned by word of mouth, but if a person fails to appear, police summons will be issued. If the person still fails to appear, the magistrate can find them in contempt of court and issue an arrest warrant for the person to be escorted to court by the police.
What weight does a magisterial inquiry have?
Anything said before an inquiring magistrate is admissible as evidence in a court of law, without the need to produce the person to testify in person as a witness. Anything said during a magisterial inquiry may be used in a trial.
What happens to the magisterial inquiry conclusions?
When the magistrate finishes his investigation, he compiles the conclusions with transcripts of the testimonies and the expert evidence along with their findings. In recent years, magisterial inquiries have been making a set of recommendations along with the conclusions.
The document, known as the proces verbal, is sent to the Attorney General. If the magistrate is recommending that the police take action against anyone in particular, the AG will send the file to the police.
If the AG feels that more is needed, he could send the file back to the magistrate asking for further investigation.
There are cases when the police take someone to court before the magistrate concludes his inquiry. In those cases, the police ask the inquiring magistrate to conclude his inquiry at that stage and send it to the magistrate presiding over the case for inclusion in the file, to be beefed up through the compilation of evidence.
Are magisterial inquires public?
No. They are secret and proceedings are carried out behind closed doors. The findings, however, could be divulged following a request made to the Attorney General for a copy of the conclusions but this is at the discretion of the AG.