The constitution of an independent prosecution service within the Maltese criminal justice system

Abstract

However fundamental he may appear, the public prosecutor was a historical latecomer, serendipitously becoming a regular figure of Maltese criminal procedure only in the early nineteenth century. The surmise would be that the office of the public prosecutor first appeared under the governorship, if often absent, of Sir Thomas Maitland from 1813-1824. “King Tom”, an autocrat, superimposed the complexities of Anglo-British criminal procedure on the existing bricolage of Continental traditions in Malta. With it inevitably came the public prosecutor. Maitland introduced the principle of a public, viva voce and adversarial form of trial and the oral questioning of witnesses in open court. Also, keeping in mind that the prevailing AngloBritish procedural intricacies were derivative of the Law of Evidence, a system of citizen (private) prosecution had been destined to fail, or rather, prove unreliable. The prosecutorial function had already begun to crystallize into the rational institution of modern law, removed in function from the community and lodged with the public prosecutor. As a result of this running ‘altercation’ between accused and accusers, some other entity had to come forward to assume this adventitious function in Maltese criminal procedure. These were the formative years, from which much survives into our own day. Different than was the course in most Common Law jurisdictions, development in Malta did not involve a supplanting of older institutions by newer, but a sharpening of function within a framework of institutional continuity. As such, this study aims to give currency to the constitution of an independent prosecution service within the Maltese criminal justice system.