Nick Cowdery, former Director of Public Prosecution in New South Wales, Australia. Photo: Chris Sant Fournier

Magistrates should have jurisdiction on all charges that carry maximum penalties of up to 10 years’ imprisonment, according to a Commonwealth legal consultant.

The proposal was made in a report drawn up by Nick Cowdery, the former Director of Public Prosecution in New South Wales, Australia, after consultations in Malta earlier this month.

Such a move will help speed up criminal justice cases that are currently dogged by delays at the compilation of evidence stage, which is the first step in the legal process.

The report, seen by this newspaper, argues that with “a well-educated and fully professional magistracy” the move should not cause concern.

Today, in cases where punishment can be for more than four years in prison, a magistrate hears evidence to establish whether there are sufficient grounds for the accused to be sent to trial.

Compilation of evidence hearings should not ordinarily require the calling of witnesses to give oral evidence

This process – known as the compilation of evidence – should last no more than three months but this stage can be prolonged when the court sends the file to the Attorney General for the case to go to trial and the AG then sends the file back to the court for further evidence to be heard.

Although offences with a jail term of up to 10 years can be referred to trial before the Magistrates’ Court instead of a trial by jury, it is the Attorney General and the accused who have to give their consent.

Only cases that carry punishments of fewer than six months’ jail can be heard summarily by magistrates.

Prof. Cowdery argued that by giving magistrates wider jurisdiction on the crimes they can decide on, the AG’s discretion to decide whether somebody can be tried summarily or by indictment becomes unnecessary.

He also called for changes in the way compilation of evidence hearings are conducted by having witness statements taken by the police, who would then grant full disclosure to the prosecution and the defendant.

“Compilation of evidence hearings should not ordinarily require the calling of witnesses to give oral evidence,” Prof. Cowdery said.

The court would then decide whether to send the case for trial after examining the brief of evidence, including statements, and after hearing submissions from both sides.

However, the court would have the discretion to allow limited requests for examination or cross-examination of any witness.

The report was not intended to be a rigorous analysis of the justice system but a summary of the main points that cropped up during meetings Prof. Cowdery had in Malta.

But according to Justice Parliamentary Secretary Owen Bonnici, the expert was impressed by the work currently done by magistrates.

“He sat in for some proceedings apart from meeting various stakeholders and his recommendations have been passed on to the Justice Reform Commission for consideration,” Dr Bonnici said.

Without committing himself to implement the proposal on magistrates, Dr Bonnici said it could help remove some of the main contributors to delays in the criminal justice field.

Prof. Cowdery also proposed the depenalisation and even decriminalisation of some minor offences, without identifying which these should be.

“Minor criminal and regulatory offences should not need to occupy expensive court time,” he said.

Another proposal is for all court proceedings to be digitally audio recorded.

Prof. Cowdery said these systems were available at comparatively low cost but that would reap continuing financial savings.

Such systems would enable recordings to be indexed as they go and relevant parts subsequently identified to enable transcription if required.

ksansone@timesofmalta.com