The position of the co-defendant in Maltese law : the criminal law and the human rights law perspectives

Abstract

This work examined the problem being faced by a co-defendant under Maltese Law, whereby due to what is known as the economy of justice, two persons or more, accused of the same offence or of connected offences, have their case heard simultaneously before the same Judge and jurors. This problem emerges from the fact that a defendant is not granted the right to cross-examine his/ her co-accused on the justification that the Presiding Judge directs the jury that that evidence should be considered only in respect of the person tendering it as it was given in completely separate proceedings. Accordingly, to prove this theory erroneous, three interviews were carried out with leading Psychologists who all concluded that as human beings, jurors cannot simply disregard certain important information in their possession. Also, the parliamentary debate leading to the amendment to article 639 (3) of the Criminal Code was analysed and a comparative study with the United Kingdom and Italian Law of evidence was carried out. Actual Maltese cases impacted by this procedural anomaly were examined in detail with particular attention given to establishing whether this procedural issue had any effect on the decision making process undertaken by the jurors. Consequently, a thorough examination of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights was carried out, with reference to the Strasbourg Court’s case law. Reference to the law of evidence adopted by the United States of America and by the Republic of South Africa was also made with particular analysis of their respective case law as regard the right to cross-examine witnesses. In conclusion, a proposal for an introduction of a new provision of the Criminal Code was submitted.