The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
The investigation of criminal offences is shared between the Police and the Magistrates. When an offence is disclosed and there is the need to conserve the scene of the crime and to preserve evidence a Magistrate is informed. The Magistrate will conduct the necessary investigations and order the necessary inquest on site, if need be with the help of experts appointed by him. The inquest is conducted by the Magistrate with the assistance of the police. At the end of the inquest the Magistrate draws up a report, known as a proces verbal, where his conclusions and findings are stated. Should a suspect be identified the investigating Magistrate may order his arrest and may order that criminal proceedings be taken against him.
At this stage the Attorney General does not have a formal institutional role. He does not as such have a formal supervisory role over the criminal investigations. He has no authority to impose on the police or on the investigating magistrate how the investigations should be conducted. In practice, however, the police do very often seek guidance from the Office of the Attorney General on any legal issue that may arise and which may need to be resolved. The advice of the Office may be sought on the elements of offences being investigated, the evidence that needs to be produced, avenues of investigation that could be pursued, on ways and means to further the investigation such as special investigative techniques that could be utilised, international assistance that could be sought and other issues. The investigating Magistrate may also, should it be deemed appropriate, consult the Office for any guidance that may be required. While the Attorney General’s opinion at this stage does not bind either the police or the Magistrate, it must be stated that his opinion is invariably complied with by the police and is certainly given great weight by the investigating Magistrate.
Following the drawing up of the proces verbal by the investigating Magistrate the same proces verbal is sent to the Attorney General and at this stage the Attorney General assumes a formal role in the investigative process and he may refer back the record of the proces verbal to the investigating Magistrate whenever further investigation is to take place. At this point there is still no person formally charged with a criminal offence.
In the proces verbal the Magistrate may have ordered the taking of criminal proceedings against a suspect on one or more charges. Should the police opine differently, they may consult the Attorney General who may direct that no proceedings should be taken or that proceedings should be taken for charges different from those specified by the Magistrate in the proces verbal. Where the Attorney General directs that, contrary to the conclusions of the Magistrate, no proceedings are to be taken he is obliged, in the interests of transparency, to make a report of the fact to the President stating the reasons for his action.
If there is no material evidence which requires to be preserved, or where the material traces of the offence might have disappeared because the offence is reported or disclosed a long time after its commission, the police might not report the offence to an investigating magistrate and instead carry on their own investigations since amongst the duties of the Police is the investigation of offences having as a final aim the eventual bringing of offenders, whether principals or accomplices, before the competent judicial authorities as soon as possible together with all the evidence that may have been collected in respect of the offence (sects. 346 and 356 Criminal Code, Chapter 9 of the Revised Edition of the Laws of Malta). As a result of these duties, the Police cannot channel an offence aside. What happens in practice is that unless a competent Court delivers a verdict of guilt against an individual for having committed such an offence, the relative Police investigation is considered and is actually kept on going. It must also be noted that although an individual may have been declared guilty by a Court of having committed such an offence, if the Police believe that others may have been involved in any manner whatsoever, in such a case the investigation is still kept going with the aim of identifying such other persons.
Since no organic link exists between the Prosecution service and the Police, should a proces verbal not be drawn up by an investigating Magistrate, the Attorney General would not be in a position to know what investigations are being undertaken by the Police. No obligation exists upon the Police to report all or any criminal offence to the Attorney General and no penalties exist for not doing so.
Nevertheless, in this light one must also consider that the Attorney General may and does suggest crime policy guidelines to the police to be utilised in investigations being undertaken solely by them, but these guidelines are not of a binding nature on the Police. These guidelines are only binding once they are endorsed by the Commissioner of Police, who is the commander of the police force. It can be said, however, that in practice such guidelines are endorsed by the Commissioner of Police as a matter of course. The Minister responsible for Justice and Home Affairs and the Commissioner of Police are the authorities primarily responsible for laying down such binding guidelines to the Police.
Theoretically, the Attorney General may be involved in the police investigation process from its commencement. In practice this practise is only utilised with regards to cases raising public alarm and/or outcry more than is customary with criminal investigations. Public alarm and/or outcry which is generally, though not necessarily, related either to the persons who allegedly have committed the offences or due to the nature of the alleged offence or both.
On the other hand one must also consider the fact that a number of coercive measures exist which may be utilised to facilitate an investigation. Although these are obviously applied by the Police, the involvement of the Attorney General is necessary and at times obligatory, depending on what type of coercive measure is required. Examples of these coercive measures are investigation orders, attachment orders, and orders for the freezing of property of persons accused with offences cognizable by Courts outside Malta (sects. 435A to 435E Criminal Code, Chapter 9).
The Relation between the Public Prosecutor and the Police
The investigation of criminal offences is shared between the Police and the Magistrates. When an offence is disclosed and there is the need to conserve the scene of the crime and to preserve evidence a Magistrate is informed. The Magistrate will conduct the necessary investigations and order the necessary inquest on site, if need be with the help of experts appointed by him. The inquest is conducted by the Magistrate with the assistance of the police. At the end of the inquest the Magistrate draws up a report, known as a proces verbal, where his conclusions and findings are stated. Should a suspect be identified the investigating Magistrate may order his arrest and may order that criminal proceedings be taken against him.
At this stage the Attorney General does not have a formal institutional role. He does not as such have a formal supervisory role over the criminal investigations. He has no authority to impose on the police or on the investigating magistrate how the investigations should be conducted. In practice, however, the police do very often seek guidance from the Office of the Attorney General on any legal issue that may arise and which may need to be resolved. The advice of the Office may be sought on the elements of offences being investigated, the evidence that needs to be produced, avenues of investigation that could be pursued, on ways and means to further the investigation such as special investigative techniques that could be utilised, international assistance that could be sought and other issues. The investigating Magistrate may also, should it be deemed appropriate, consult the Office for any guidance that may be required. While the Attorney General’s opinion at this stage does not bind either the police or the Magistrate, it must be stated that his opinion is invariably complied with by the police and is certainly given great weight by the investigating Magistrate.
Following the drawing up of the proces verbal by the investigating Magistrate the same proces verbal is sent to the Attorney General and at this stage the Attorney General assumes a formal role in the investigative process and he may refer back the record of the proces verbal to the investigating Magistrate whenever further investigation is to take place. At this point there is still no person formally charged with a criminal offence.
In the proces verbal the Magistrate may have ordered the taking of criminal proceedings against a suspect on one or more charges. Should the police opine differently, they may consult the Attorney General who may direct that no proceedings should be taken or that proceedings should be taken for charges different from those specified by the Magistrate in the proces verbal. Where the Attorney General directs that, contrary to the conclusions of the Magistrate, no proceedings are to be taken he is obliged, in the interests of transparency, to make a report of the fact to the President stating the reasons for his action.
If there is no material evidence which requires to be preserved, or where the material traces of the offence might have disappeared because the offence is reported or disclosed a long time after its commission, the police might not report the offence to an investigating magistrate and instead carry on their own investigations since amongst the duties of the Police is the investigation of offences having as a final aim the eventual bringing of offenders, whether principals or accomplices, before the competent judicial authorities as soon as possible together with all the evidence that may have been collected in respect of the offence (sects. 346 and 356 Criminal Code, Chapter 9 of the Revised Edition of the Laws of Malta). As a result of these duties, the Police cannot channel an offence aside. What happens in practice is that unless a competent Court delivers a verdict of guilt against an individual for having committed such an offence, the relative Police investigation is considered and is actually kept on going. It must also be noted that although an individual may have been declared guilty by a Court of having committed such an offence, if the Police believe that others may have been involved in any manner whatsoever, in such a case the investigation is still kept going with the aim of identifying such other persons.
Since no organic link exists between the Prosecution service and the Police, should a proces verbal not be drawn up by an investigating Magistrate, the Attorney General would not be in a position to know what investigations are being undertaken by the Police. No obligation exists upon the Police to report all or any criminal offence to the Attorney General and no penalties exist for not doing so.
Nevertheless, in this light one must also consider that the Attorney General may and does suggest crime policy guidelines to the police to be utilised in investigations being undertaken solely by them, but these guidelines are not of a binding nature on the Police. These guidelines are only binding once they are endorsed by the Commissioner of Police, who is the commander of the police force. It can be said, however, that in practice such guidelines are endorsed by the Commissioner of Police as a matter of course. The Minister responsible for Justice and Home Affairs and the Commissioner of Police are the authorities primarily responsible for laying down such binding guidelines to the Police.
Theoretically, the Attorney General may be involved in the police investigation process from its commencement. In practice this practise is only utilised with regards to cases raising public alarm and/or outcry more than is customary with criminal investigations. Public alarm and/or outcry which is generally, though not necessarily, related either to the persons who allegedly have committed the offences or due to the nature of the alleged offence or both.
On the other hand one must also consider the fact that a number of coercive measures exist which may be utilised to facilitate an investigation. Although these are obviously applied by the Police, the involvement of the Attorney General is necessary and at times obligatory, depending on what type of coercive measure is required. Examples of these coercive measures are investigation orders, attachment orders, and orders for the freezing of property of persons accused with offences cognizable by Courts outside Malta (sects. 435A to 435E Criminal Code, Chapter 9).
