The Role of the Public Prosecution in Court
Chapter III
The Role of the Public Prosecution in Court
Under Maltese criminal law, criminal offences may be tried on indictment – a more formal procedure used in the Criminal Court, which is a superior court, usually before a jury) or offences may be tried summarily – a much less formal procedure before the Court of Magistrates presided over only by a Magistrate – or offences may be tried either way, by the Criminal Court or by the Court of Magistrates depending on the decision of the Attorney General and sometimes on the consent of the person charged.
The courts of criminal competence are the Courts of Magistrates, the Criminal Court and the Court of Criminal Appeal. The Court of Magistrates may function as either a Court of Criminal Judicature and has full competence to decide the merits of the charge, in respect of offences which may be tried summarily only, or in respect of offences which may be tried either way subject to the direction of the Attorney General and the consent of the person charged. The Court of Magistrates when dealing with offences which either exceed its competence and are triable on indictment or else in the event that an offence may be tried summarily but the consent for having the case heard summarily of either the Attorney General or of the person charged has been withheld, then this Court functions as a Court of Criminal Inquiry.
The Criminal Court, which is a superior court, has competence to try offences on indictment which indictment is filed by the Attorney General following inquiry proceedings before the Court of Magistrates as a Court of Criminal Inquiry. In trials on the merits, the Criminal Court is assisted by a jury made up of nine lay persons.
Decisions on the merits, i.e. on the guilt or otherwise of the person charged, given by the Court of Magistrates as a Court of Criminal Judicature may be appealed before the Court of Criminal Appeal presided by one judge. Decisions given by the Criminal Court may be appealed before the Court of Criminal Appeal presided by three judges.
The exercise of the criminal action, as has already been seen, lies with the police ex ufficio who also act as prosecutors before the Court of Magistrates whether as Court of Criminal Inquiry or as a Court of Criminal Judicature. Although the Attorney General is never the prosecutor before the Courts of Magistrates the police may be assisted before those courts by the Attorney General or his representative. There are, however certain offences in respect of which criminal proceedings can only be instituted on the authority of the Attorney General, other proceedings can only commence upon a complaint by the injured party or upon the authorisation of some public authority other than the Attorney General for instance the Comptroller of Customs in respect of customs offences.
The original competence of the Court of Magistrates as a Court of Criminal Judicature, as established in sect. 370(1) Criminal Code, appertains only to decide cases dealing with all contraventions (minor offences) established in the Criminal Code, all crimes provided for in the Criminal Code (but whose penalty is that either afforded to contraventions in the Code, or a fine, or imprisonment for a period not longer than six months coupled with or without the payment of a fine or interdiction), and all those other crimes and contraventions created by other laws but whose punishment is that afforded immediately prior unless the special law provides otherwise. The simplified procedure, known as summary proceedings, arises out of sect. 370(4) Criminal Code, whereby if the charges filed against an individual are liable to imprisonment for more than six months but less than four years, the Court is obliged to ask the person so charged, during the questioning, without oath of the same person charged, whether such person objects to his case being heard summarily. In the eventuality that the person so charged does not object to his case being tried summarily, and then the Court asks the prosecuting officer, whether the Attorney General objects to this particular case being heard so. Should the Attorney General agree, then the Court of Magistrates who until that time was a Court of Criminal Inquiry transforms itself into a Court of Criminal Judicature competent to hear all evidence and decide the case itself instead of having the case being referred to the Criminal Court upon an indictment filed against the offender by the Attorney General. This procedure is widely used on a very regular basis. Summary proceedings tend to be more expedient and more cost effective for all parties involved, i.e. the Court, the prosecution and also the defence.
When a person is eventually charged with the commission of an offence triable on indictment only or triable either way, whether as the result of investigations by the investigating magistrate or investigations by the police, the person charged is arraigned before the Court of Magistrates as a Court of Criminal Inquiry. At this stage there is a person formally charged with the commission of an offence. The function of the Court of Criminal Inquiry is to have all available evidence of the charge produced in the presence of the person charged in adversarial judicial proceedings where the person charged is entitled to assistance by legal counsel. At the end of the collection of evidence the court must decide whether there is sufficient prima facie evidence to commit the person charged to stand trial on indictment. If so it will refer the record to the Attorney General for that purpose. If it is of the opinion that there is insufficient evidence for the purpose it will discharge the person charged and again refers the record to the Attorney General.
The Attorney General at this stage has several powers that he can exercise. The decision as to which of these powers he shall use, is an exclusive decision reserved to the Attorney General, who in practise delegates this decision to one of his officers. Some of the most important powers/options available to the Attorney General as listed hereunder:
- if the person charged has been discharged by the court of magistrates, the Attorney General may, if he is of the opinion that sufficient evidence for an indictment exists, and a judge not ordinarily sitting in the Criminal Court or in the Court of Criminal Appeal agrees with him, order the re-arrest of the person discharged so that the proceedings may continue to take their course;
- if the person charged has been committed to stand trial on indictment, the Attorney General if he disagrees with the Court of Magistrates may discharge that person by filing a note to this effect before the Criminal Court – the power of nolle prosequi;
- if the person charged has been committed to stand trial on indictment, and the Attorney General finds the same record to be defective, he may send it back to the Court of Magistrates and request that the defect be remedied;
- if the person charged has been committed to stand trial on indictment, and the Attorney General believes that further evidence, considered by him to be appropriate, should heard, then he may re-submit to the Court of Magistrates the record of the case asking it to hear such evidence, which request cannot be refused by the court nor altered in any manner;
- if the Attorney General is of the opinion that there is not sufficient evidence of an offence within the competence of the Criminal Court but there is evidence of an offence within the competence of the Court of Magistrates as a Court of Criminal Judicature, he will not file a bill of indictment but will send the record back to the Court of Magistrates for a decision in respect of the charge within its competence. Once the Court of Magistrates as a Court of Criminal Inquiry receives this record accompanied with the Attorney General’s note to this effect, should the person charged not object to his case being tried summarily, then this court converts itself into the Court of Magistrates as a Court of Criminal Judicature; or
- if the Attorney General is satisfied that sufficient evidence exists he may file a bill of indictment before the Criminal Court.
Should the need be felt to change or amend the bill of indictment while that case is pending in court, this may only be done according to the provisions of sects. 597(1) and 597(2) Criminal Code. The Criminal Court may order the correction of the bill, in the first scenario contemplated, either upon a plea filed by the accused or upon the Court’s own initiative (ex officio) and in the second scenario upon a plea filed by the Attorney General upon the identification of a mistake or procedural error. Furthermore sect. 599 Criminal Code holds that the Criminal Court may order the correction of the bill at any instant prior to the issuing of the verdict by the jury provided that such correction relates to an error that is found in the bill as a result of the evidence heard before the same court. Provided such errors relate to circumstances of time, place and person, when, where, against whom the offence was committed, or as to the indication or description of the things on which the offence was committed. What has to be clearly kept in mind is the fact that, under no circumstance may the offence be changed into one of a graver nature following the correction. Furthermore should the error in the bill of indictment amount to a wrong reference to the article of the law under which punishment is being requested, a correction in this regard may be corrected at any stage up to the delivery of the judgment.
When dealing with withdrawal of a bill of indictment 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. The Attorney General files a note to this effect before the Criminal Court – the power of nolle prosequi. 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.
The role of the Attorney General during and after the trial stage before the Criminal Court is heavily regulated by the provisions of the Criminal Code. The Attorney General makes an opening speech, presents the evidence for the prosecution, examines witnesses produced by him and cross-examines witnesses produced by the accused, makes submissions to the Court on all points of fact and law and after conviction produces evidence, if any, and makes submissions as to the appropriate sentence. The Attorney General is not directly concerned with the execution of sentences which fall within the competence of the officers of the competent court but he does monitor the execution of such sentences should the need arise.
The prosecution’s right of appeal from judgments of the Court of Magistrates lies with the Attorney general although he is not a party to the case in which judgment has been given by that Court. The police have to decide whether to file a note of appeal but it is the Attorney General who has the final say as to whether an appeal should be filed or not. Should the person charged upon being asked by the Court, at the very beginning, whether he declares himself guilty or not guilty, declare himself guilty, the Court is to give judgment as soon as possible and practicable. In such a case the Court is obliged to submit the record of this case together with a copy of its decision to the Attorney General. Should he decide to file an appeal from this latter decision, no note to this effect needs to be filed by the police.
The Role of the Public Prosecution in Court
Under Maltese criminal law, criminal offences may be tried on indictment – a more formal procedure used in the Criminal Court, which is a superior court, usually before a jury) or offences may be tried summarily – a much less formal procedure before the Court of Magistrates presided over only by a Magistrate – or offences may be tried either way, by the Criminal Court or by the Court of Magistrates depending on the decision of the Attorney General and sometimes on the consent of the person charged.
The courts of criminal competence are the Courts of Magistrates, the Criminal Court and the Court of Criminal Appeal. The Court of Magistrates may function as either a Court of Criminal Judicature and has full competence to decide the merits of the charge, in respect of offences which may be tried summarily only, or in respect of offences which may be tried either way subject to the direction of the Attorney General and the consent of the person charged. The Court of Magistrates when dealing with offences which either exceed its competence and are triable on indictment or else in the event that an offence may be tried summarily but the consent for having the case heard summarily of either the Attorney General or of the person charged has been withheld, then this Court functions as a Court of Criminal Inquiry.
The Criminal Court, which is a superior court, has competence to try offences on indictment which indictment is filed by the Attorney General following inquiry proceedings before the Court of Magistrates as a Court of Criminal Inquiry. In trials on the merits, the Criminal Court is assisted by a jury made up of nine lay persons.
Decisions on the merits, i.e. on the guilt or otherwise of the person charged, given by the Court of Magistrates as a Court of Criminal Judicature may be appealed before the Court of Criminal Appeal presided by one judge. Decisions given by the Criminal Court may be appealed before the Court of Criminal Appeal presided by three judges.
The exercise of the criminal action, as has already been seen, lies with the police ex ufficio who also act as prosecutors before the Court of Magistrates whether as Court of Criminal Inquiry or as a Court of Criminal Judicature. Although the Attorney General is never the prosecutor before the Courts of Magistrates the police may be assisted before those courts by the Attorney General or his representative. There are, however certain offences in respect of which criminal proceedings can only be instituted on the authority of the Attorney General, other proceedings can only commence upon a complaint by the injured party or upon the authorisation of some public authority other than the Attorney General for instance the Comptroller of Customs in respect of customs offences.
The original competence of the Court of Magistrates as a Court of Criminal Judicature, as established in sect. 370(1) Criminal Code, appertains only to decide cases dealing with all contraventions (minor offences) established in the Criminal Code, all crimes provided for in the Criminal Code (but whose penalty is that either afforded to contraventions in the Code, or a fine, or imprisonment for a period not longer than six months coupled with or without the payment of a fine or interdiction), and all those other crimes and contraventions created by other laws but whose punishment is that afforded immediately prior unless the special law provides otherwise. The simplified procedure, known as summary proceedings, arises out of sect. 370(4) Criminal Code, whereby if the charges filed against an individual are liable to imprisonment for more than six months but less than four years, the Court is obliged to ask the person so charged, during the questioning, without oath of the same person charged, whether such person objects to his case being heard summarily. In the eventuality that the person so charged does not object to his case being tried summarily, and then the Court asks the prosecuting officer, whether the Attorney General objects to this particular case being heard so. Should the Attorney General agree, then the Court of Magistrates who until that time was a Court of Criminal Inquiry transforms itself into a Court of Criminal Judicature competent to hear all evidence and decide the case itself instead of having the case being referred to the Criminal Court upon an indictment filed against the offender by the Attorney General. This procedure is widely used on a very regular basis. Summary proceedings tend to be more expedient and more cost effective for all parties involved, i.e. the Court, the prosecution and also the defence.
When a person is eventually charged with the commission of an offence triable on indictment only or triable either way, whether as the result of investigations by the investigating magistrate or investigations by the police, the person charged is arraigned before the Court of Magistrates as a Court of Criminal Inquiry. At this stage there is a person formally charged with the commission of an offence. The function of the Court of Criminal Inquiry is to have all available evidence of the charge produced in the presence of the person charged in adversarial judicial proceedings where the person charged is entitled to assistance by legal counsel. At the end of the collection of evidence the court must decide whether there is sufficient prima facie evidence to commit the person charged to stand trial on indictment. If so it will refer the record to the Attorney General for that purpose. If it is of the opinion that there is insufficient evidence for the purpose it will discharge the person charged and again refers the record to the Attorney General.
The Attorney General at this stage has several powers that he can exercise. The decision as to which of these powers he shall use, is an exclusive decision reserved to the Attorney General, who in practise delegates this decision to one of his officers. Some of the most important powers/options available to the Attorney General as listed hereunder:
- if the person charged has been discharged by the court of magistrates, the Attorney General may, if he is of the opinion that sufficient evidence for an indictment exists, and a judge not ordinarily sitting in the Criminal Court or in the Court of Criminal Appeal agrees with him, order the re-arrest of the person discharged so that the proceedings may continue to take their course;
- if the person charged has been committed to stand trial on indictment, the Attorney General if he disagrees with the Court of Magistrates may discharge that person by filing a note to this effect before the Criminal Court – the power of nolle prosequi;
- if the person charged has been committed to stand trial on indictment, and the Attorney General finds the same record to be defective, he may send it back to the Court of Magistrates and request that the defect be remedied;
- if the person charged has been committed to stand trial on indictment, and the Attorney General believes that further evidence, considered by him to be appropriate, should heard, then he may re-submit to the Court of Magistrates the record of the case asking it to hear such evidence, which request cannot be refused by the court nor altered in any manner;
- if the Attorney General is of the opinion that there is not sufficient evidence of an offence within the competence of the Criminal Court but there is evidence of an offence within the competence of the Court of Magistrates as a Court of Criminal Judicature, he will not file a bill of indictment but will send the record back to the Court of Magistrates for a decision in respect of the charge within its competence. Once the Court of Magistrates as a Court of Criminal Inquiry receives this record accompanied with the Attorney General’s note to this effect, should the person charged not object to his case being tried summarily, then this court converts itself into the Court of Magistrates as a Court of Criminal Judicature; or
- if the Attorney General is satisfied that sufficient evidence exists he may file a bill of indictment before the Criminal Court.
Should the need be felt to change or amend the bill of indictment while that case is pending in court, this may only be done according to the provisions of sects. 597(1) and 597(2) Criminal Code. The Criminal Court may order the correction of the bill, in the first scenario contemplated, either upon a plea filed by the accused or upon the Court’s own initiative (ex officio) and in the second scenario upon a plea filed by the Attorney General upon the identification of a mistake or procedural error. Furthermore sect. 599 Criminal Code holds that the Criminal Court may order the correction of the bill at any instant prior to the issuing of the verdict by the jury provided that such correction relates to an error that is found in the bill as a result of the evidence heard before the same court. Provided such errors relate to circumstances of time, place and person, when, where, against whom the offence was committed, or as to the indication or description of the things on which the offence was committed. What has to be clearly kept in mind is the fact that, under no circumstance may the offence be changed into one of a graver nature following the correction. Furthermore should the error in the bill of indictment amount to a wrong reference to the article of the law under which punishment is being requested, a correction in this regard may be corrected at any stage up to the delivery of the judgment.
When dealing with withdrawal of a bill of indictment 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. The Attorney General files a note to this effect before the Criminal Court – the power of nolle prosequi. 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.
The role of the Attorney General during and after the trial stage before the Criminal Court is heavily regulated by the provisions of the Criminal Code. The Attorney General makes an opening speech, presents the evidence for the prosecution, examines witnesses produced by him and cross-examines witnesses produced by the accused, makes submissions to the Court on all points of fact and law and after conviction produces evidence, if any, and makes submissions as to the appropriate sentence. The Attorney General is not directly concerned with the execution of sentences which fall within the competence of the officers of the competent court but he does monitor the execution of such sentences should the need arise.
The prosecution’s right of appeal from judgments of the Court of Magistrates lies with the Attorney general although he is not a party to the case in which judgment has been given by that Court. The police have to decide whether to file a note of appeal but it is the Attorney General who has the final say as to whether an appeal should be filed or not. Should the person charged upon being asked by the Court, at the very beginning, whether he declares himself guilty or not guilty, declare himself guilty, the Court is to give judgment as soon as possible and practicable. In such a case the Court is obliged to submit the record of this case together with a copy of its decision to the Attorney General. Should he decide to file an appeal from this latter decision, no note to this effect needs to be filed by the police.
