An average of three magisterial inquiries are launched in Malta every day, and that says more about our country’s penchant for investigations by magistrates – largely a relic of colonial times – than the effectiveness of our justice system. In fact, many of these inquires drag on inordinately – more than 2,000 are currently active, according to figures submitted in Parliament, and some have remained unconcluded for more than 20 years.

Yet what is striking is not so much the delays – we have become inured to delays in all things associated with our courts – but that the Minister for Justice explained the reasons for the delays without announcing any new initiatives or measures of reform. (Experts, he said, had not completed investigations assigned to them, or witnesses hadn’t been tracked down or evidence had not been located.)

I would have expected the minister to grapple troublingly with the figures and take a critical look at the continued relevance of magisterial inquiries in the context of justice reform. The reform in the justice system – oft promised by this government, still undelivered in large part – requires much more than tweaking the systems and increasing the complement of magistrates. It requires holistically overhauling the systems that have become unwieldy and archaic.

In this sense the prevalence of magisterial inquiries is one of the most obvious spots for reform that can yield considerable benefits.

In these inquiries, magistrates take charge of cases in which evidence has to be preserved in crimes punishable by a minimum of three years’ imprisonment, and also hold inquests into unexplained or sudden deaths. Death by falling down a cliff or suicide or household fire could be unexplained or have criminal implications; traffic fatalities can also bear criminal liability – in all these cases an inquest is launched by the duty magistrate.

More widely, magisterial inquiries are held virtually when any serious crimes happen or come to be known unexpectedly, in which evidence can be lost unless secured at speed. (I could simplify or generalise by saying that the only serious crimes beyond the remit of magisterial inquiries are those uncovered in the course of investigations by police over a period of time.)

The chief rationale, as already pointed out, is the immediate preservation of evidence. But in many crimes, evidence does not lie around awaiting preservation; evidence has to be discovered or extracted from witnesses or suspects, and the magistrate becomes something akin to the lead investigator who deploys the police and engages court experts in the investigation.

It is counterintuitive that magistrates should be transformed overnight into investigators-at-large without any training in criminology

In some cases, duplicate work ensues: the police take statements from suspects, the suspects are then separately interrogated again by magistrate-appointed experts. There is no set procedure for the sharing of notes between the police and the magistrate. The methodology of the inquiry is solely in the hands of the magistrate, and inquiries are secret – the police do not have access to reports or evidence gathered by the magistrate.

There is something oddly unscientific about magistrates running police-style investigations. It is counterintuitive that magistrates, who studied law and practised as lawyers prior to becoming magistrates, should be transformed over­night into quasi criminal investigators-at-large without any training in criminology. A magistrate is qualified in law; a police inspector is supposedly qualified in criminology – there is little doubt about who’s best qualified to lead investigations and gather evidence.

Another flaw is the absence of standard investigative methodology in magisterial inquiries. Each magistrate designs the investigative methodology and appoints the experts s/he deems fit. These individual designs may lead to variances that reinforce the widespread perception – which is only partly justified – that the courts are inconsistent or unjust. Such variances are less likely in police investigations given that senior police take the same criminology courses.

In fact, our predilection for widespread magisterial inquiries is anachronistic in modern criminal justice systems: the modern custom is to entrust criminal investigations in the hands of capable police forces and limit judicial inquiries to occurrences or incidents or accidents of public interest. (It’s judicial inquiries, not magisterial inquires – the latter is an obsolete coinage in English.) 

The magistrate’s role in these police investigations is best limited to issuing warrants for seizure and arrests and searches. Yet there could still be scope for limited, narrowly-defined magisterial inquiries. Corruption is an obvious candidate, especially because magistrates possess the clout and operational independence to take on powerful interests. The idea would be to task a couple of magistrates to specialise in investigating corruption. And deaths in prison or in police custody should also automatically trigger a judicial inquiry.

Yet any reform in this matter has to ameliorate the current limitations of the police. The police need a wider range of specialised units, and greater access to a wide range of experts, to carry out complex, specialised investigations or the gathering and analysis of evidence. Moreover, a unit of coroners can be created within the police to hold inquests into generic, unexplained deaths. 

In this way, freeing magistrates from the bulk of investigations would allow them to focus solely on their core court duties. It would more importantly serve to reduce their overburden of work, and expedite the infamously slow court processes in Malta.

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