Why is the prosecution still in the hands of the police?

If the Nationalists have been such a wonderful force for progress in the past 25 years - so much so, that they now expect us all to tear our hair out in sheer terror at the prospect of an imminent change in government (Yikes!) - well, why are we still lagging so far behind on even the most basic, entry-level democratic requirements?

It's a question I've been asking for years, to tell you the truth. And just this week I was forcefully reminded of one of the more sinister and worrying aspects of our failure to ever evolve beyond the earliest tadpole stages of democracy.

You may have read a small story in the papers last Friday, about a hunter (poacher, bird-shooter, call him what you will) who was acquitted on charges of illegally shooting a Barn Swallow at Salina... for the simple reason that the prosecution omitted to mention that he had actually confessed to the crime during interrogation.

OK, I am the first to admit that the underlying issue itself is not exactly overwhelming in its earth-shattering national importance... even if a certain rather famous author did once write that "there is a special providence in the fall of a sparrow" (and no, it wasn't Emilio Lombardi).

Animal rights activists may even hate me for this, but I for one can certainly live with the idea that a single man can get off scot-free after killing a single bird... unless, I suppose, the 'bird' in question happened to be Christina Hendricks ... in which case I would probably be leading the lynch mob myself.

What I find slightly harder to live with, however, is the fact that our law-courts are increasingly rendering themselves impossible to take seriously. And no, not just because of the occasional anomalous (and often just plain daft) cock-up like the one outlined above. If I can't take the law-courts seriously any more, it is because - after 25 years of a government that seems to think it 'modernised' Malta, instead of actively keeping it from ever evolving - the county's single most important institution has remained endemically, systemically, procedurally and institutionally flawed at every goddamn level you care to name.

Let's take a closer look at this latest fiasco, shall we? And let's do so while closing an eye at the rather inconsequential offence for which this man ultimately walked. In fact, let's forget entirely that the story is about a dead swallow (after all, the prosecution seemed to forget this detail too); and for argument's sake let's imagine instead that the same pattern of behaviour can be emulated in much more serious matters... like murder, extortion, assault, armed robbery, organised crime, and so on.

And finally, let us consider the fact that... this is the Office of the Prosecution we are dealing with here. It doesn't have all that very much to do, other than... um... prosecute.  And in this particular case, prosecution involved presenting three major articles of evidence:

Exhibit Number One: a video showing the hunter picking up the dead bird and giving it to his dog (in order to train it for retrieving purposes, etc);

Exhibit Number Two: the testimony of two witnesses, both RSPB officials, who saw him shoot the bird, and;

Exhibit Number Three: a confession by the defendant himself, who had earlier told the police that: 'yup, guilty as charged. It was me what done it', etc.

Now: if the Office of the Prosecution was guilty only of an oversight in this case, it would be bad enough... given that th result can only diminish the credibility of the law-courts as a whole.

But this particular omission cannot realistically be described as an oversight at all, for two rather glaring reasons.

One, the chief prosecuting officer persisted in failing to even mention the confession in court, even after the defence lawyer argued (quite rightly, it must be said) that 'exhibits 1 and 2', on their own, did not exactly add up to cast-iron evidence of guilt.

Two, it seems to consistently escape everybody's notice in this country, but - just like Belarus, Khazakhstan and similar places... but entirely unlike the vast majority of the free and democratic countries to which we should be really be comparing ourselves - in Malta, the Office of the Prosecution IS the Police Force, and vice versa.

Yes indeed, folks. This means that the same people who extracted the confession in the first place, also presented the case against the accused in court. And they now expect us to believe that, having obtained the confession, they somehow managed to totally forget about it when it mattered the most... even when (thanks to a defence lawyer doing his job properly) it became the single the most important article of evidence in the entire case.

I'll leave you to mull over the possibilities for yourselves, but I for one find it simply impossible to believe that this was, in fact, a genuine mistake. If it was, then the sheer carelessness and lack of professionalism involved would be of simply staggering proportions... truly epic, in fact... and I suppose we can consider ourselves lucky that the crime was ultimately so trivial. (Just imagine if a man confessed to a homicide, yet got off scot-free because the 'it slipped the prosecution's mind' that he confessed).

If not... well, what on earth might have possessed the prosecution to engineer an acquittal, when it was their job to secure the clean opposite?

While I'm on the subject of asking pointless questions which will never be answered anyway: how many members of the Malta police force are themselves hunters. I wonder? How seriously does the Malta Police Force take wildlife crimes to begin with? And most important of all... why has nobody ever really questioned the glaring anomaly, whereby there is no such thing as an independent office of the prosecution in our country?

I mean seriously, people. Never mind the swallow, or even the hunting issue as a whole. Is it possible that our law-courts are still in that troglodyte phase of development, where they still see nothing wrong with the fact that the same people who compile evidence against you, me and everybody else... also get to present it in court?

Oh, OK, it's not entirely true to say that 'no one' has ever asked these questions. The last person who raised this issue was... my, how very unexpected... Franco Debono: the same man whose sanity is routinely questioned by the most obviously potty among us, for all the world as though 'seeing through the nakedness of GonziPN' is now (of all things) a symptom of mental illness.

Nor was Debono the only oddball to recognise the anomaly. In 2009 I wrote about a Somali national - that's right, from Somalia: a country that spent almost an entire decade without a functional government at all, and which is still torn by civil war, poverty, famine, pestilence, death and other inconveniences - who found himself accused of drug trafficking in a Maltese court. He had written a letter to the President at the time, and among the many oddities he raised about our legal system was the fact that the same police officers who had interrogated him, also doubled up as the prosecuting officers in court.

I remember thinking to myself back then: how is it even possible, that a refugee from wartorn Somalia would instantly recognize this as a bizarre anomaly... whereas Malta's entire legal sector: the judiciary, the Chamber of Advocates, the Justice Ministry (now ensconced within the Office of the Prime Minister), the Commission for the Administration of Justice, etc... simply never saw anything wrong with it at all?

I mean, do these people even know what happens in other jurisdictions?  A cursory internet search (keywords: 'independent prosecution office') instantly yielded a veritable treasure trove of research papers, articles, etc, on this issue. I picked one at random, and this is a quote:

"In launching the Crown Prosecution Service on the 1 October 1986 the [Director of Public Prosecutions] in England, Sir Thomas Hetherington, summarised its main objectives as follows:

1. To be, and to be seen to be, independent of the Police;

2. To ensure that the general quality of decision making and case preparation is of a high level, and that decisions are not susceptible to improper influence;

3. To provide flexibility to take account of local circumstances;

4. To continue prosecutions while, and only while, they are in the public interest;

5. To conduct cases vigorously and without delay;

6. To undertake prosecution work effectively, efficiently and economically;

7. To seek to improve the performance of the criminal justice system as a whole."

(Source: The independence of the prosecutor and the rule of law, by D. Bugg)

I could have stopped at number one, but there you have it. Malta's prosecution office is not independent of the police; it is not independent of the Attorney General; it cannot by definition be trusted to prosecute Government officials, for the simple reason that - not being independent - it is itself a Government department; and for all the same reasons it cannot guarantee that its decisions are not 'susceptible to improper influence'.

In brief, the office of the prosecution cannot be trusted, full-stop. And this is not at all the sort of set-up you would expect from a 21st century EU member state, after 25 years of a government which is supposed to have 'modernised' the flipping country.

On the contrary: it is the sort of abject rubbish you would expect from a third world country with no tradition of democracy at all; and whose government still does not comprehend even the most elementary principles of justice.

And yet there they all are: the regressive, unimaginative and hopelessly clueless people responsible for this shocking state of affairs - a state of affairs whereby our entire criminal justice system is in some respects less advanced than that of Somalia, for crying out loud - expecting us to quake in terror at the thought that they might be unceremoniously booted out of power very soon.

And who was it again we were all supposed to think is insane...?