Issue link: https://maltatoday.uberflip.com/i/1520358
6 maltatoday | WEDNESDAY • 8 MAY 2024 NEWS MATTHEW AGIUS magius@mediatoday.com.mt An inquiry, criminal charges what's next for Muscat & Magistrate Gabriella Vella concluded her inquiry into the Vitals hospitals deal and passed on the findings to the Attorney General. Subsequently, formal charges against several individuals were filed in court. MATTHEW AGIUS tries to unravel some of the procedural and legal questions on the next steps in this saga. What is the aim of a magisterial inquiry? What does an inquiry do? In simple terms, magisterial in- quiries are there to do two things: Collect and preserve all evidence and material traces relating to an incident; recommend wheth- er or not the police should press charges and if so, what charges to press. Does an inquiry have to be concluded in 60 days? Contrary to disinformation in circulation, inquiries do not have to be concluded within 60 days. The law only states that if it is not completed in 60 days, the magis- trate shall draw up a report stat- ing the reason for the delay, and this report shall be transmitted to the Attorney General with- in three working days from the lapse of the 60 days. After that, the magistrate has to send re- ports, explaining the reasons for the delay, to the Attorney Gener- al, at the end of every subsequent month. Do suspects under investigation have a right to testify during an inquiry? The Criminal Code doesn't con- template such a scenario, much less grant this as a right. How- ever, should this argument be raised, it will probably be based on a fundamental human rights approach, which is more flexi- ble and has a much wider scope. Suspects who are identified in an application filed by a private cit- izen requesting a magisterial in- quiry have a right to be notified with the application and to file an objection. No such rights are en- joyed by individuals who emerge during the course of the inquiry. In the Vitals inquiry, the original request was filed against Konrad Mizzi, Chris Cardona and Ed- ward Scicluna. Wait a minute, that doesn't seem fair on the suspects. If the decision is taken to press charges, they will receive disclo- sure of all the evidence against them after arrest; or if not ar- rested, during the compilation proceedings. It must be noted that during the compilation of evidence, the court does not es- tablish guilt, but takes custody of the evidence and decides wheth- er there is sufficient evidence for the defendant to stand trial on indictment, or whether further evidence is required. Do suspects have a right to release a police statement before being charged? This does not emerge from the law, either. However, a practice has developed whereby suspects are given the opportunity to re- lease statements by the police be- fore they press charges. This takes on added significance in money laundering proceedings, where the burden of proof is inverted. Whereas normally, the prosecu- tion must prove their charges be- yond reasonable doubt, in money laundering cases, the prosecution only has to reach a lower level of proof, known as prima facie (in layman's terms 'on the face of it'), after which the defendant is required to prove that the funds came from a legitimate source. Joseph Muscat is being arraigned by summons. What does this mean? Arraignment by summons is the less glamorous sister of ar- raignment under arrest. Instead of being put in handcuffs and driven to court in a police van, the suspect is ordered to appear in court on a given date and at a given time. The law doesn't give much in the way of criteria as to whether the prosecution should arraign under arrest or by sum- mons and only says that the latter shall be used "where there are not sufficient grounds according to law for the arrest of any person charged with an offence." The summons has to contain a clear designation of the per- son being summoned and a brief statement of the facts of the charge, together with other de- tails deemed necessary on a case by case basis. It must also con- tain a warning to the effect that, should the person summoned fail to appear in court on the speci- fied date, they will be arrested and arraigned under arrest. But besides the obvious doing away with the necessity for bail, this method of pressing charges has a number of important impli- cations which aren't immediately apparent. There is a tactical downside to charging suspects by summons, because the law does not oblige the police to send for or interro- gate – or even inform – the sus- pects before deciding to issue the charges. The corollary to this is that, as there is no arrest, there will be no interrogation, and therefore neither does the sus- pect have the right to be shown what evidence the police have against the individual (commonly referred to as 'the right of disclo- sure'). Although there may well have been good reasons for the pros- ecution to have gone down this route it is equally likely that the defence lawyers will now begin filing constitutional cases or con- stitutional references claiming their clients had suffered a breach of their right to disclosure, and consequently their right to a fair trial. Will the accused ask for bail? They don't need to ask for bail. A bail request is made when the defendant is charged under ar- rest. Since arrests don't feature in