The status of 'compellable witnesses' in Malta and its application in practise

Abstract

Witnesses are vital tools in the process of justice and calling witnesses to testify is part and parcel of the right to a fair trial. Nonetheless, compiling evidence from witnesses might prove to be difficult and this is due to various facts, one of which might be that witnesses fail to appear at Court on the day required. Thus, in order to avoid this, often times a subpoena is issued. This compels the witness to attend to the sitting on the date and at the time stipulated. Failing this, a fine will be imposed and the court may decide to impose a warrant of escort or a warrant of arrest, if they deem it fit. Such punishment may be remitted if it is seen that the witness had reasonable grounds for failing to show up. Interestingly, not all persons can be compelled witnesses, and this dissertation delves into this and establishes who can and cannot be compelled. Apart from that, this dissertation also discusses under what conditions a witness might be exempted, the procedure that is taken in order to summon witnesses and the different ways in which a witness may testify. A comparative analysis with English, Italian and French Law is taken and it emerges that Maltese Law is in line with these jurisdictions. A question that arises when discussing the issue of compellable witnesses is whether this is counter-productive or not. While there cannot be a clear-cut answer to this, it is seen that compelling persons to testify generally produces adverse effects and thus various modes of testifying are opted to with the aim of easing them into testifying. An analysis of these modes is taken and it results that our law provides for such measures however, more intervention is required to ensure protection.