By Dr Arthur Azzopardi – Managing Partner
What is a Magisterial Inquiry?
As the name implies, a Magisterial Inquiry is an investigation carried out by a Magistrate not acting as a court but rather as an impartial officer for justice seeking to delve deeper upon the receipt of any report, information or complaint received by the Police regarding any offense liable to the punishment of imprisonment exceeding three years.
Why is it held?
The primary focus is, if the subject-matter of the offense still exists, the state thereof, with each particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated. To any such investigation, an inquest on the spot shall be held. The inquest shall be held by a magistrate or, in certain cases before the Court of Magistrates (Gozo), by the registrar of that court if no Magistrate can physically be present.
What happens if the Magistrate does not have the necessary skills to carry out the inquest?
Then the Magistrate shall engage the necessary experts to this end and assist in the inquest. Examples of such experts are scene of the crime officers, DNA experts, computer experts, financial experts. If it is deemed to be expedient, the Magistrate may empower the experts to receive documents and to examine witnesses on oath and to take down their depositions in writing. Experts employed in the inquest for the purpose of collecting and examining any fingerprints and samples for analysing human DNA are to transmit their findings not only to the Magistrate but also to the Police simultaneously and immediately. Experts are qualified persons in any art, science or trade who may be competent to ascertain the traces left by the offense, the condition and particulars of the permanent fact, the material means by which probably the offense was committed, the effects produced by the offense, the further effects which the offense might produce, and their probable duration. The experts shall, in connection with anything forming the subject-matter of their appointment make all such observations and experiments as their art, science or trade may suggest. They shall state the facts on which their observations are based and shall give their opinion by means of a written report. Report of experts and depositions of witnesses heard by them are to be confirmed under oath by the experts and are to be annexed to the procès-verbal – i.e. the report drawn up by the Investigating Magistrate.
What happens once the procès-verbal is concluded?
The procès-verbal, if regularly drawn up, shall be received as evidence in the trial of the cause. The witnesses, experts or other persons who took part or gave evidence during the Magisterial inquest shall be included in the list of witnesses of the Attorney General. Similarly, all documents and articles exhibited at the inquest and any other material object, in respect of which a procès-verbal has been drawn up, and which can be preserved and conveniently exhibited, shall always be produced at the trial, together with the procès-verbal, by the Attorney General during the trial.
Is there a time-limit for the Magistrate to conclude this investigation?
Where the procès-verbal is not drawn up within sixty days from receiving the report, information, or complaint, the magistrate shall draw up a report stating the reason for the delay, and this report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the sixty days. At the end of every month after the first report shall have been drawn up, the magistrate shall draw up another report stating again the reason for the delay, and every such subsequent report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the month.
What rights do victims have during this process?
After the lapse of the period of sixty days, every interested person may by application, request the magistrate to be heard as a witness, or to hear as witnesses the persons indicated in the application. The application shall be served on the Attorney General who may reply within four days. The Magistrate will then decide whether to accede to such a request or not.
Is the Attorney General kept in the dark until the procès-verbal is concluded?
No. The Magistrate is to communicate to the Attorney General such information about the inquest as may be requested by the Attorney General who moreover shall, always, have access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest including the reports of experts and depositions of witnesses. Similarly to the Attorney General, the Magistrate prior to the conclusion of the procès-verbal may, upon a request made by the Financial Intelligence Analysis Unit, on a case by case basis and where the information is necessary for the prevention, detection and combating of money laundering, associate predicate offenses and terrorist financing, give access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest, including the reports of the experts and deposition of witnesses, provided that this information shall only be used by the Financial Intelligence Analysis Unit for the purpose for which it was provided.
Does the Magistrate have a limit as to what can be done during this type of an investigation?
No. The truth is priceless, and justice should not have any limits for the truth to be uncovered.
Consider for instance in the case of death. A magistrate may, where necessary, order the dissection and the internal examination of the body. The magistrate may appoint a medical expert or experts and he may also empower such expert or experts to hear evidence on oath for establishing the identity of the body and to ascertain the cause of death. If the body has been buried, it shall be lawful for the magistrate to order the disinterment thereof with all due precautions, if such disinterment can be affected without prejudice to public health. It shall be lawful for the magistrate to order the arrest of any person whom, at any inquest, he discovers to be guilty, or against whom there is sufficient circumstantial evidence, as well as to order the seizure of any papers, effects, and other objects generally, which he may think necessary for the discovery of the truth. It shall also be lawful for the magistrate to order any search into any house, building or enclosure, although belonging to any other person, if he shall have collected evidence leading him to believe that any of the objects identified or referred to during the inquest may be found therein. It shall also be lawful for the magistrate to order that any suspect be photographed or measured or that his fingerprints be taken or that any part of his body or clothing be examined by experts appointed by him for the purpose. During such an investigation, the magistrate shall have the same powers and privileges of a presiding magistrate of the Court of Magistrates as court of criminal inquiry. In collecting evidence in connection with such an inquiry, it shall be lawful for the magistrate to order, if he deems it expedient so to do, that no person shall leave the place where the investigation is being held. If the door of the place where any inquiry is to take place, is found closed, and no one shall appear to open it, it shall be lawful for the magistrate to order the said door to be forced open.
What happens in practice when the Magisterial Inquiry is concluded?
The record of the inquiry, i.e., the procès-verbal, all annexes and all documents are forthwith transmitted by the magistrate to the Attorney General within the period of three working days upon conclusion. Where in the procès-verbal the magistrate shall have ordered that a person be arraigned in court on any one or more charges, the magistrate shall order that a copy of the same procès-verbal shall be transmitted by the registrar to the Commissioner of Police who, shall proceed accordingly. In case of doubt the Commissioner of Police may consult with the Attorney General who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate in the procès-verbal. Provided that where the Attorney General shall have directed that no proceedings are to be initiated as suggested by the Investigating Magistrate, then the Attorney General shall inform in writing the President of Malta with the reasons as to why such a decision was taken.