A comparative study of prosecution systems leading to a reform of the Maltese prosecution system and the establishment of a prosecution service

Abstract

The restructuring of the Prosecution System in Malta has been the subject of debate for the past sixteen years. There have been two major instances in which proposed amendments to the prosecutorial function, currently attributed to the Attorney General, were put forward. The first one dates back to 2001, when a bill to establish the Office of the Prosecutor General separate from that of the Attorney General was debated in the House of Representatives. A consensus was never reached between the two sides of the House and thus this proposal never materialised. The issue resurfaced in 2013, when the Bonello Report recommended that the prosecutorial function should be vested in the Office of the General Prosecutor. The rationale behind both proposals was the same. Both had in common the raison d’être that the Attorney General has too many different tasks to perform and that thus there should be a separation of his functions. The latter would have his prosecutorial function removed but would still retain his other powers such as defending urgent constitutional matters, collecting money owed to the government, giving advice to Ministers and to the Public Service and drafting laws. In essence, this thesis involves a comparative analysis of the prosecutorial function of various jurisdictions. It delves into the establishment of the Office of the Public Prosecutor and the organisation of prosecution services, and examines the decision to prosecute. It further explores the extent of the public prosecutor’s involvement in the investigation of offences, the manner in which evidence is compiled and the admissibility thereof. Ultimately, the result of this thesis is a set of recommendations which, in the author’s belief, should contribute towards the improvement of our prosecution system. These should also strengthen the separation of powers between the three organs of the state and consolidate the principle of equality of arms in criminal proceedings.