The role and powers of the Attorney General : is there true equality of arms?

Abstract

This thesis analyses two main parallel thoughts on the role of the Maltese Attorney General. It involves a critical analysis of the complexity the Office and the various roles and duties it needs to fulfil, whilst concurrently providing an understanding of the powers the Office holds vis-a-vis the accused in certain aspects of the criminal process. The powers which this Office has assimilated over recent years have expanded; some might argue provoking an imbalance between the State's and the accused's powers within criminal proceedings. From a constitutional stand point, the doctrine of equality of arms, human rights and criminal law will also be assessed. The relationship held between the judiciary and the Attorney General is illustrated in certain instances of the criminal action whilst simultaneously shedding light on the position held by the Attorney General and the accused. Furthermore the amendments regarding the institution of appeals are shown and contrasted. Additionally the thesis examines the notion of prosecutorial discretion, its effect on the accused and ultimately how this form of judgment has mostly revealed to be an unaccountable form of discretion. A specific comparative angle is used to illustrate how systems abroad, specifically the English system, has developed a prosecutorial arm which acts in a transparent manner and in light of the separation of powers has created a devolved prosecutorial branch. The thesis questions whether the structure of the Maltese Office should be altered and allow for a more transparent prosecutorial branch which, whilst providing a better organisation for the administration of justice, effectively improves the situation regarding the equality of arms doctrine.