The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The Office of the Attorney General in its present form was constituted by the Attorney General and Counsel for the Republic (Constitution of Office) Ordinance of 1936. The Attorney General under this law is the public prosecutor and the principal legal counsel for government with the right of audience in all Courts. The Attorney General’s political independence was strengthened and enhanced when in 1964 his Office was entrenched in the Independence Constitution. The 1964 Independence Constitution provided that there shall be an Attorney General whose office shall be a public office. In the Constitution the Attorney General is deemed to be part of the Executive but it is also provided that in exercise of his powers to institute, undertake and discontinue criminal proceedings the Attorney General shall not be subject to the direction or control of any other person or authority (sect. 91(3) Constitution).
The hierarchical setup of the Office is delineated by the aforementioned law as sees the Attorney General as the head of this hierarchy, assisted by a Deputy Attorney General, and assisted by Assistants to the Attorney General, Senior Counsel for the Republic and Counsel for the Republic.
The Attorney General is appointed by the President acting in accordance with the advice of the Prime Minister. For a person to be appointed as the Attorney General, sect. 96(2) Constitution, such individual must satisfy the criteria necessary for that individual to be appointed as a judge of the Superior Courts. For a person to be so appointed he must have practised either as an advocate or served as a Magistrate or has partly so practised and partly so served for not less than twelve years. The advocates employed by the Office of the Attorney General must first be in possession of a warrant allowing them to serve as advocates and must then either go through the rigorous selection process as established by the Public Service Commission (constitutionally setup independent body responsible for recruitment within the public service) or are appointed by a direct nomination submitted by the Prime Minister to the Public Service Commission for its recommendation. Upon an advocate being recruited into the public service, the actual appointment to serve Government in an advocate’s capacity is issued under the seal of the Prime Minister. When the advocate is eventually posted with the Office of the Attorney General, it is solely at the discretion of the Attorney General to decide who from amongst his legal staff is to be delegated as a public prosecutor acting on his behalf. Nevertheless in the exercise of their functions, these advocates enjoy the same privileges and protection as are by law attributed to the Attorney General.
Apart from the provisions of sect. 91(3) Constitution, the Attorney General is afforded the same independence that members of the judiciary enjoy. The Attorney General may not be removed from office except by the President upon an address by the House of Representatives supported by the votes of not less than two-thirds of all the members thereof and such removal is to be asked on the grounds of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.
Disciplinary powers over members of the legal staff of the Office of the Attorney General are exercised by the Attorney General as the head of this Office. In serious cases disciplinary charges have to be made by the Attorney General and are heard by the Public Service Commission which determines the charges. In certain cases the Attorney General may, after due investigation according to regulations, personally deal with cases involving a warning, fine, withholding or deferment of increments or a reprimand. In addition in the case of disobedience of a lawful order, the Attorney General may summarily suspend an officer for a period of time as may be prescribed in the Public Service Management Code. Furthermore they may also be liable to administrative, civil and penal responsibility depending on the nature of the fault.
The advocates who have been delegated with the Attorney General’s prosecutorial powers may receive instructions from their direct superior or from the Attorney general in particular, but not exclusively, on matters of a general nature dealing with crime policy. In theory they may also receive such instructions with respect to specific cases and such instructions could relate not only to collecting evidence but also to the modalities of prosecution. In practice, however, such instructions with respect to specific cases are hardly ever resorted to although a process of internal consultation may take place with the final decision, however, usually left to the individual in charge of the investigation or prosecution although statutorily the decision lies with the Attorney General, who may, if he feels the need, exercise his right.
This right has to be considered in light of the fact that the Attorney General has a limited role in the definition of crime policy. His role is limited to that area which is concerned with the institution, conduct and termination of criminal proceedings and it is to the extent that such proceedings have a bearing on the prevention of crime that he also has a role in the formulation of a crime prevention policy. The Attorney General’s functions in connection with criminal proceedings necessarily places the Attorney General in a position to be in touch with changing trends and patterns of crime and with the persons who willingly or unwillingly are involved in crime and/or the consequences of crime whether as offenders, victims, witnesses, investigators, social workers, probation officers, etcetera. Other authorities concerned with the formulation of crime policy and/or crime prevention policy therefore inevitably rely on the Attorney General’s insights for the carrying out of their mandate. While the Attorney General is not directly responsible for assistance to victims of crime or to other categories of persons involved in crime the Attorney General is always on the alert and sensitive to the needs of these persons and uses his authority to secure for them the assistance which they might require. The Attorney General being also the chief legal counsel to government he is also well placed to push through such legal reforms as he may consider to be called for by emergent criminal trends and to monitor the constitutionality of legislative proposals.
The Attorney General also has, as shall be demonstrated further on, a decisive role in the judicial pre-trial stage and he is very much in charge of this phase after the Magistrate’s decision on whether the person charged should be committed for trial on indictment.
Prior to court proceedings the initial decision to prosecute or not lies with the Commissioner of Police who may consult the Attorney General on the decision. There are certain offences, however, in respect of which only the Attorney General may authorise a prosecution for instance such as offences under the Security Service Act, under the Gaming Laws and offences under the Electoral Laws. After the commencement of proceedings leading to a bill of indictment the decision to continue with the prosecution or not lies with the Attorney General. The decision not to continue with the prosecution is in practice reserved to the Attorney General personally. No set of established reasons exist in any form whatsoever on the basis of which the Attorney General is to take such a decision.
The Private party does have a right to institute the criminal action against another, albeit limitedly according to the provisions of sect. 373 Criminal Code. Such prosecution is capable only with respect to the offences referred to in sect. 370(1) falling within the original competence of the Court of Magistrates. The prosecution lies with the injured party or with the persons mentioned in sect. 542 (e.g. by a spouse on behalf of the other spouse, by an ascendant on behalf of a descendant, by a descendant on behalf of an ascendant, by a brother on behalf of his sister or vice versa, etc.) on behalf of such party, where proceedings cannot be instituted except on the complaint of the injured party: Nevertheless, if the offence in respect of which no prosecution may be instituted except on the complaint of the injured party, is aggravated by public violence or is accompanied with any other offence affecting public order, or if, in the absence of any such circumstances, the injured party shall fail to institute proceedings and shall not have expressly waived the right to prosecute within four days from the commission of the offence, it shall be lawful for the Police ex officio to institute proceedings in respect of the offence.
Amongst the main grounds in this regard, is the application of sect. 433(1) Criminal Code (cases necessitating a nolle prosequi). Should the Attorney General disagree with a court who has committed a person to stand for trial, on the basis that there are not sufficient grounds for trial on indictment he may discharge that person and file a declaration to that effect before the Criminal Court. This power of nolle prosequi is still retained by the Attorney General even after he has filed a bill of indictment. In every case in which the Attorney General exercises this power, he must in addition to the declaration to that effect to the Criminal Court, make a report to the President of Malta justifying such a decision.
Sects. 433(2) and 600 Criminal Code, have to be read together in this regard. The withdrawal may only be made at the sole discretion of the Attorney General, prior to the accused pleads to the general issue of guilty or not guilty, and in any such case all further proceedings shall be stayed, and the accused shall be discharged. Should the accused have already pleaded to the general issue of guilty or not guilty, the indictment may not be withdrawn without the consent of the accused. Furthermore, in either case, the withdrawal of the indictment shall not operate so as to bar the taking of entirely new proceedings against the accused, on the discovery of fresh evidence.
Further grounds of non-prosecution arise upon the application of sects. 636(b) Criminal Code and 19 Chapter 326 entitled Permanent Commission against Corruption. Both provisions relate to what is widely referred to as ‘Turning State Evidence’. The distinction between the two lies in the fact that under the provisions of the Criminal Code such an exemption must be granted by the State, thus such exemption must be issued under the signature of the President of the Republic while in the latter case, the exemption is issued by the Attorney General under his signature. Whilst the former exemption bars prosecution in front of all Courts of law, the latter exemption only bars prosecution of the individual being so pardoned only with regards to offences relating to any corrupt practice or any offence connected therewith, which cases are being heard before the Permanent Commission against Corruption and/or, any Court of Criminal Jurisdiction.
In all his actions the Attorney General is guided by the overriding consideration that he is an officer of the court actively committed to the determination of the truth in any particular case and to the correct application of the law to the facts as so determined. He is not concerned with obtaining a conviction at any cost nor does he have any interest in misleading the court as to the correct application of the law. He will therefore desist from having recourse to falsehood in pursuance of his objectives, and to the extent that it is within his power to do so. Will not allow anyone to resort to falsehood to the prejudice of the accused. The Attorney General’s only interest is in ensuring that justice according to law is administered with fairness to the accused, the victim and the community.
The Attorney General seeks to ensure the effectiveness of the criminal justice system by carrying out his duties honestly, diligently and to the utmost of his abilities, without fear or favour, in conformity with the law. He will seek to ensure that cases are investigated fully and within the confines of the law and with full respect of the rights and freedoms of all persons involved whether as accused, victims or witnesses. The Attorney General only seeks the conviction of those persons whom he believes to be guilty and will desist from prosecuting persons whom he believes to be innocent.
The Relation between the Public Prosecutor and the Minister of Justice
The Office of the Attorney General in its present form was constituted by the Attorney General and Counsel for the Republic (Constitution of Office) Ordinance of 1936. The Attorney General under this law is the public prosecutor and the principal legal counsel for government with the right of audience in all Courts. The Attorney General’s political independence was strengthened and enhanced when in 1964 his Office was entrenched in the Independence Constitution. The 1964 Independence Constitution provided that there shall be an Attorney General whose office shall be a public office. In the Constitution the Attorney General is deemed to be part of the Executive but it is also provided that in exercise of his powers to institute, undertake and discontinue criminal proceedings the Attorney General shall not be subject to the direction or control of any other person or authority (sect. 91(3) Constitution).
The hierarchical setup of the Office is delineated by the aforementioned law as sees the Attorney General as the head of this hierarchy, assisted by a Deputy Attorney General, and assisted by Assistants to the Attorney General, Senior Counsel for the Republic and Counsel for the Republic.
The Attorney General is appointed by the President acting in accordance with the advice of the Prime Minister. For a person to be appointed as the Attorney General, sect. 96(2) Constitution, such individual must satisfy the criteria necessary for that individual to be appointed as a judge of the Superior Courts. For a person to be so appointed he must have practised either as an advocate or served as a Magistrate or has partly so practised and partly so served for not less than twelve years. The advocates employed by the Office of the Attorney General must first be in possession of a warrant allowing them to serve as advocates and must then either go through the rigorous selection process as established by the Public Service Commission (constitutionally setup independent body responsible for recruitment within the public service) or are appointed by a direct nomination submitted by the Prime Minister to the Public Service Commission for its recommendation. Upon an advocate being recruited into the public service, the actual appointment to serve Government in an advocate’s capacity is issued under the seal of the Prime Minister. When the advocate is eventually posted with the Office of the Attorney General, it is solely at the discretion of the Attorney General to decide who from amongst his legal staff is to be delegated as a public prosecutor acting on his behalf. Nevertheless in the exercise of their functions, these advocates enjoy the same privileges and protection as are by law attributed to the Attorney General.
Apart from the provisions of sect. 91(3) Constitution, the Attorney General is afforded the same independence that members of the judiciary enjoy. The Attorney General may not be removed from office except by the President upon an address by the House of Representatives supported by the votes of not less than two-thirds of all the members thereof and such removal is to be asked on the grounds of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour.
Disciplinary powers over members of the legal staff of the Office of the Attorney General are exercised by the Attorney General as the head of this Office. In serious cases disciplinary charges have to be made by the Attorney General and are heard by the Public Service Commission which determines the charges. In certain cases the Attorney General may, after due investigation according to regulations, personally deal with cases involving a warning, fine, withholding or deferment of increments or a reprimand. In addition in the case of disobedience of a lawful order, the Attorney General may summarily suspend an officer for a period of time as may be prescribed in the Public Service Management Code. Furthermore they may also be liable to administrative, civil and penal responsibility depending on the nature of the fault.
The advocates who have been delegated with the Attorney General’s prosecutorial powers may receive instructions from their direct superior or from the Attorney general in particular, but not exclusively, on matters of a general nature dealing with crime policy. In theory they may also receive such instructions with respect to specific cases and such instructions could relate not only to collecting evidence but also to the modalities of prosecution. In practice, however, such instructions with respect to specific cases are hardly ever resorted to although a process of internal consultation may take place with the final decision, however, usually left to the individual in charge of the investigation or prosecution although statutorily the decision lies with the Attorney General, who may, if he feels the need, exercise his right.
This right has to be considered in light of the fact that the Attorney General has a limited role in the definition of crime policy. His role is limited to that area which is concerned with the institution, conduct and termination of criminal proceedings and it is to the extent that such proceedings have a bearing on the prevention of crime that he also has a role in the formulation of a crime prevention policy. The Attorney General’s functions in connection with criminal proceedings necessarily places the Attorney General in a position to be in touch with changing trends and patterns of crime and with the persons who willingly or unwillingly are involved in crime and/or the consequences of crime whether as offenders, victims, witnesses, investigators, social workers, probation officers, etcetera. Other authorities concerned with the formulation of crime policy and/or crime prevention policy therefore inevitably rely on the Attorney General’s insights for the carrying out of their mandate. While the Attorney General is not directly responsible for assistance to victims of crime or to other categories of persons involved in crime the Attorney General is always on the alert and sensitive to the needs of these persons and uses his authority to secure for them the assistance which they might require. The Attorney General being also the chief legal counsel to government he is also well placed to push through such legal reforms as he may consider to be called for by emergent criminal trends and to monitor the constitutionality of legislative proposals.
The Attorney General also has, as shall be demonstrated further on, a decisive role in the judicial pre-trial stage and he is very much in charge of this phase after the Magistrate’s decision on whether the person charged should be committed for trial on indictment.
Prior to court proceedings the initial decision to prosecute or not lies with the Commissioner of Police who may consult the Attorney General on the decision. There are certain offences, however, in respect of which only the Attorney General may authorise a prosecution for instance such as offences under the Security Service Act, under the Gaming Laws and offences under the Electoral Laws. After the commencement of proceedings leading to a bill of indictment the decision to continue with the prosecution or not lies with the Attorney General. The decision not to continue with the prosecution is in practice reserved to the Attorney General personally. No set of established reasons exist in any form whatsoever on the basis of which the Attorney General is to take such a decision.
The Private party does have a right to institute the criminal action against another, albeit limitedly according to the provisions of sect. 373 Criminal Code. Such prosecution is capable only with respect to the offences referred to in sect. 370(1) falling within the original competence of the Court of Magistrates. The prosecution lies with the injured party or with the persons mentioned in sect. 542 (e.g. by a spouse on behalf of the other spouse, by an ascendant on behalf of a descendant, by a descendant on behalf of an ascendant, by a brother on behalf of his sister or vice versa, etc.) on behalf of such party, where proceedings cannot be instituted except on the complaint of the injured party: Nevertheless, if the offence in respect of which no prosecution may be instituted except on the complaint of the injured party, is aggravated by public violence or is accompanied with any other offence affecting public order, or if, in the absence of any such circumstances, the injured party shall fail to institute proceedings and shall not have expressly waived the right to prosecute within four days from the commission of the offence, it shall be lawful for the Police ex officio to institute proceedings in respect of the offence.
Amongst the main grounds in this regard, is the application of sect. 433(1) Criminal Code (cases necessitating a nolle prosequi). Should the Attorney General disagree with a court who has committed a person to stand for trial, on the basis that there are not sufficient grounds for trial on indictment he may discharge that person and file a declaration to that effect before the Criminal Court. This power of nolle prosequi is still retained by the Attorney General even after he has filed a bill of indictment. In every case in which the Attorney General exercises this power, he must in addition to the declaration to that effect to the Criminal Court, make a report to the President of Malta justifying such a decision.
Sects. 433(2) and 600 Criminal Code, have to be read together in this regard. The withdrawal may only be made at the sole discretion of the Attorney General, prior to the accused pleads to the general issue of guilty or not guilty, and in any such case all further proceedings shall be stayed, and the accused shall be discharged. Should the accused have already pleaded to the general issue of guilty or not guilty, the indictment may not be withdrawn without the consent of the accused. Furthermore, in either case, the withdrawal of the indictment shall not operate so as to bar the taking of entirely new proceedings against the accused, on the discovery of fresh evidence.
Further grounds of non-prosecution arise upon the application of sects. 636(b) Criminal Code and 19 Chapter 326 entitled Permanent Commission against Corruption. Both provisions relate to what is widely referred to as ‘Turning State Evidence’. The distinction between the two lies in the fact that under the provisions of the Criminal Code such an exemption must be granted by the State, thus such exemption must be issued under the signature of the President of the Republic while in the latter case, the exemption is issued by the Attorney General under his signature. Whilst the former exemption bars prosecution in front of all Courts of law, the latter exemption only bars prosecution of the individual being so pardoned only with regards to offences relating to any corrupt practice or any offence connected therewith, which cases are being heard before the Permanent Commission against Corruption and/or, any Court of Criminal Jurisdiction.
In all his actions the Attorney General is guided by the overriding consideration that he is an officer of the court actively committed to the determination of the truth in any particular case and to the correct application of the law to the facts as so determined. He is not concerned with obtaining a conviction at any cost nor does he have any interest in misleading the court as to the correct application of the law. He will therefore desist from having recourse to falsehood in pursuance of his objectives, and to the extent that it is within his power to do so. Will not allow anyone to resort to falsehood to the prejudice of the accused. The Attorney General’s only interest is in ensuring that justice according to law is administered with fairness to the accused, the victim and the community.
The Attorney General seeks to ensure the effectiveness of the criminal justice system by carrying out his duties honestly, diligently and to the utmost of his abilities, without fear or favour, in conformity with the law. He will seek to ensure that cases are investigated fully and within the confines of the law and with full respect of the rights and freedoms of all persons involved whether as accused, victims or witnesses. The Attorney General only seeks the conviction of those persons whom he believes to be guilty and will desist from prosecuting persons whom he believes to be innocent.
