Justice is not provided to the community when court cases take four years or longer to be resolved, according to Australian Commonwealth consultant Nick Cowdery.
“The idea that a criminal case takes four or five years, or more, to be resolved, I think, is not justice. The community expects these matters to be resolved,” said Prof. Cowdery, the former Director of Public Prosecution in New South Wales, Australia.
You can certainly have a shorter deadline than the ones that currently exist in a lot of cases
Prof. Cowdery, who specialises in procedural reforms, is volunteering his consultancy to the Maltese Government, which is in the process of reforming the justice system.
Court delays are one of the elements being tackled by the Justice Reform Commission, which is expected to publish its final report at the end of this month.
In March an EU Justice Scoreboard report found that Maltese citizens faced the longest delays of any justice system within the 27 member states. Justice Parliamentary Secretary Owen Bonnici had described such delays as “totally unacceptable” as they violated the fundamental right to a fair hearing in a reasonable time.
Last month a man was awarded €6,000 in compensation because his case, which started in 2005, had been unjustifiably prolonged. In July a family, whose court cases are still dragging on 40 years after having been filed, were awarded €12,000 in compensation.
Asked if he ever came across 40-year delays, Prof. Cowdery said: “Not in our system, no, though I have been to India and criminal cases were 24 to 25 years old.”
While, he said, there was no perfect time for a case to be resolved he was proposing the setting of time standards to act as a guideline.
In the Australian courts it was estimated that criminal cases, including murders, should be dealt with within 12-18 months.
In the case of Malta, he said, “you can certainly have a shorter deadline than the ones that currently exist in a lot of cases”.
During his three-day stay in Malta Prof. Cowdery visited the law courts. One thing stood out to him as a contributing factor to delays.
“It was slightly more chaotic than the type of hearings we have, which are much more disciplined because we list matters in a different way. Instead of having 30 to 40 cases listed in one day, at 9am, we have appointments for cases to begin and to continue, until they finish,” he said. Scheduling cases would make a difference, he said.
Another factor that contributed to delays was the manner in which the compilation of evidence was conducted, he said.
At the moment witnesses give evidence at that stage and then repeat everything when the case goes to trial. Time and resources can be saved by opting for written statements at the compilation stage. He also noticed a lack of continuity, in terms of record-keeping, between the appeal courts and the lower courts which was leading to repeated work.
He spoke about the importance of having support structures for victims and witnesses adding that this also helped ensure they gave better evidence.
He described the proposal, made by the Reform Commission, to establish the director of public prosecutions as “a good move”. It would help to increase the confidence of the community in the independent conduct of prosecutions, he pointed out.
He also agreed with introducing disciplinary structures to hold members of the judiciary accountable in cases of deliberate avoidance of work or misconduct. It was important that this did not impinge on their independence, which was “absolutely vital”.