What happened to that judicial reform?

Perhaps I lean towards the impatient side of things, but… why, exactly, is the judicial reform process taking so long? Labour has been in power for 15 months now. All the spadework has already been done. The Justice Reform Commission has presented its proposals, which were accepted with much fanfare at what was evidently a JAPO (‘Just Another Photo Opportunity’) for the minister concerned.

Yet all these months later I am unaware of a single change to the procedures in the justice system. The only changes I have discerned since then involve beefed-up security procedures upon entry to the law courts… and they only resulted in massive queues down Republic Street on certain days of the week, thus creating even more delays and frustration among the public at large.

As for reforms which expedite justice, or which ensure a more rational, sane and above all consistent approach by the judiciary… absolutely zilch. Perhaps the progressive Labour government was too busy delivering on promises it never actually made – or which it made in secret, to the hunters’ lobby, to the construction and development, and so on – to find time to concentrate on the single most paramount and fundamentally important pledge on its electoral manifesto. It seems, in a word, to have lost its mojo, on the single issue where mojo is most urgently required.

As things stand, hardly a week goes by without multiple court cases graphically illustrating why this reform is so utterly urgent. But the most recent is perhaps also the most telling about what, exactly, needs to change.

I imagine you are all familiar with the details so I’ll make short shrift of them here. A man was unjustly imprisoned for allegedly sexually abusing his 14-year-old daughter. The accusation had been brought forward by the daughter herself and her mother (his wife)… but the daughter eventually confessed that the rape claim had been fabricated, and that she had lied about her father at her mother’s instigation.

It turned out that there was no legal mechanism to release a man from prison despite such dramatic proof of innocence. The Constitutional Court had to produce ‘interim measures’ to have him freed. Later still it transpired that the same daughter had separately filed 20 police reports against her mother, which were being investigated by the same police force concurrently with the mother’s report against the father. Yet when questioned about this in court, investigating (and later prosecuting) officer Louise Calleja admitted she was entirely unaware of their existence.

In a rather roundabout way, this grotesque and unsettling story places its finger squarely on several – though by no means all – of the myriad shortcomings of Malta’s archaic legal and judicial set-up. People have rightly expressed shock and dismay upon discovering that a police investigation resulting in such a serious conviction had been conducted so blithely, so shabbily and so carelessly.

There was consternation at the social implications, too: as though the case had rent a hole in the fabric of a society that still prides itself on its intrinsic family values… allowing us all a sneak peek at the sometimes hideous reality on the other side.

But while all of this and more is very eminently the subject of intense debate, I myself was struck by a few of the seemingly minor details: none of which, as far as I can see, has been discussed yet. And the closer I look, the more connections I seem to find with other questionable aspects (not all necessarily applicable to this case) of the court system.

It’s a little like the classic domino effect. You flick one tile over, it hits another, that one flips the next one over, and in seconds the entire domino structure comes crashing down about your ears.

Let’s start with what this case tells about the office of the prosecution. The prosecuting officer was Louise Calleja. That’s right, the same Louise Calleja who had also investigated the case and decided there was enough evidence to prosecute (though evidently she hadn’t looked too hard for evidence to the contrary... otherwise she might have noticed the existence of no fewer than 20 conflicting police reports, all being investigated by the same police force, at the same time).

This knocks the first tile over. Personally, I don’t know what it is that makes the Maltese justice system so utterly blind to the gargantuan conflict of interest staring us all in the face here. But it is simply unacceptable to have the same police inspector who investigated the case to also present that evidence in court.

The reasons should be flamingly obvious by now, yet to date no one seems to have even noticed that the problem even exists. No one, that is, except for a couple of Somali immigrants accused some years ago of importing Khat (a type of drug) to Malta. I remember reporting at the time how the suspects in question had flagged as ‘anomalous’ the fact that the same police investigator who had interrogated them, also doubled up as their chief prosecuting officer.

Now: I don’t want to sound patronising towards our African friends, or anything… but Somalia is not exactly cited as a role model for international justice systems throughout the developed world. Yet even people who had fled from that country – which at the time had only just emerged from 10 years of civil war and anarchy – could easily recognise a glaring discrepancy when they saw one.

It is in fact perfectly visible to everyone who cares to look… except, it seems, the entire Maltese judiciary, the entire police force, the entire government (which is ultimately responsible for reforming such things as judicial system) and the entire Opposition, which had a full 25 years in which to do something about this state of affairs, but never lifted a finger. 

Why is it so important? Well, the miscarriage of justice we are now talking about answers that question rather neatly. There were glaring lacunae and inconsistencies in the police investigation which somehow went unnoticed. The daughter claimed to have been raped, but there was forensic evidence suggesting that this was not the case.

Admittedly this fact alone does not place the suspect in the clear – penetration is not actually required to prove a charge of sexual assault or abuse – but it is a clear-cut indication that something was wrong with the accusation to begin with. The girl’s claims did not quite match up to other facts that were also known to the investigating officer. Yet Calleja proceeded with a prosecution that could very easily be challenged on these grounds.

What would happen in a normal judicial set-up? The investigating officer would pass on the collected evidence to an independent office of the prosecution (which of course doesn’t exist in Malta: the prosecution is handled by the Attorney General, who in turn makes use of police officers in court), which would REVIEW the evidence to determine whether it is actually sufficient to stand up in court.

The same prosecution office would ideally be composed of lawyers, who would (or should) be trained to immediately spot such glaring inconsistencies. If an investigation turns out to have been sloppy, as was clearly the case here, the prosecutors would be able send the evidence back to the police and insist that its investigators pull their socks up and work harder to secure a conviction.

This serves as a double insurance policy against injustice: on one hand it would help lessen the number of frivolous cases (though this is admittedly a secondary concern) which continue to over-encumber the entire court system. Much more pertinently, it would also help to weed out any serious flaws that may result in miscarriages of justice such as the one we have just seen.

Conversely, the same mechanism can only strengthen individual prosecutions by insisting on proper evidence being presented in court… thus maximising the chances that people who really are guilty will pay their dues in the end.

There is another consideration that is uniquely pertinent to the case at hand. It emerged from the ongoing Constitutional case against Calleja that the separate reports filed by mother and daughter had been handled by different police departments. Calleja herself acts only on cases referred to the police by Appogg (the government agency that covers domestic violence and abuse, among other things). The reports filed by the daughter against the mother, on the other hand, were made at a police station, and were therefore handled by other units within the police force.

That, I suppose, is inevitable. But had the conclusions of all these separate investigations been submitted for review by the same office, it would have been easier to flag the glaring conflicts between the different reports in time to avoid disaster. I admit it is not, in itself, any form of guarantee: but it at least erects one extra buffer zone to ward against injustice.

As things stand, however, the opposite is true. Not only are there no buffer zones of any kind; but with seemingly zero communication taking place between the various police departments concerned, there is virtually no chance at all that any such anomaly will ever be spotted until after the individual cases are determined by the courts. By which time, of course, it will be too late.

As we went along, you might have noticed that we flicked over a second tile in passing. An independent prosecution office would also be empowered to refuse to present a case in court if the evidence is considered too flimsy (or for any other analogous reason). Prosecuting officers should have this discretion: it is in fact vital, if we are to avoid a plethora of vexatious court actions without resorting to other, more draconian means: for instance, increasing court fees across the board.

But the same is NOT true for the police when acting as an investigating body (as opposed to an prosecution office, which it shouldn’t be acting as anyway). As the police themselves tirelessly remind us, they have no choice but to investigate all received reports of criminal behaviour, no matter how frivolous or seemingly absurd. Up to this point they are correct. The police are obliged to act on all complaints, provided the complaint does in fact involve a breach of the criminal code.  They can, of course, take action against the person who filed the report if it turns out to be false.

But that only goes for criminal investigations. Prosecutions, as already explained, are another matter. Yet it seems the local police do not make this distinction when switching hats between their two conflicting roles. Instead, they carry into court with them the same baggage of duties that only apply to their other role as investigating officers.

We have seen this in connection with a number of questionable prosecutions in recent years. For instance, the police claimed they had ‘no choice’ but to prosecute author Alex Vella Gera and editor Mark Camilleri for breaching obscenity laws with the infamous ‘Li Tkisser Sewwi’ case.

What they meant to say was that they had no choice but to investigate the report when it was filed by University rector Juanito Camilleri. But when it came to actually pressing ahead with a prosecution, they had all the choice in the world… though whether they knew this at the time, or know it even now, is another question.

In the end the courts twice rejected the case, arguing that to find the defendants guilty would have been to violate their human rights and contradict the Constitutional guarantee of freedom of speech.

All along, an independent prosecution with a proper understanding of the law would have come to the same conclusion immediately, and rejected the case out of hand: thus sparing the defendants a lot of hassle and grief; allowing the Law Courts to invest their resources and energies more productively; and saving the taxpayer a tidy sum of money to boot.

Take all these considerations together – the fact that the police are under no real pressure to ensure that the case they prosecute are watertight; the fact that they feel compelled to prosecute all cases, when this is not true at all; the fact that different police departments investigate crimes independently of each other without comparing notes… even the fact that the justice system lacks an escape clause that can facilitate speedy redress for miscarriages of justice… and it all points towards colossal structural deficiencies that have been known to successive administrations of government for decades.

There has even been pressure by the Council of Europe to address many of these same issues. The Nationalists simply brushed off this criticism for years; Labour said it would take action, yet all these months later nothing has been done.

So allow me to return to my original question. How many more gross miscarriages of justice must this country see, before we finally realise that the entire system needs to be overhauled from scratch?