Does the disclosure of evidence in Maltese criminal proceedings fulfill the requirements of the fundamental right to a fair trial under article 6 of the European convention on human rights?

Abstract

It is an essential role of any State to maintain law and order on behalf of society; to hold people responsible for crimes they have committed and to ensure that justice is done – and seen to be done. However, this comes with a heavy responsibility as convicting someone with a criminal offence resulting in, taking away a person’s liberty is one of the most serious measures the State can take against an individual. Taking someone’s liberty can only be justified after the person has been given a fair trial. A fair trial ensures that citizens of a State are confident that their criminal justice system is sincere and impartial. In return, it prevents abuse of power by the state. This thesis seeks to bring to light that pre-­‐trial disclosure is an indispensable requirement to a fair trial. The Maltese criminal trial is dominated by the adversary system, which is based on the presumption that the resources available to the parties are near to equal to ensure a fair dispute in court. This presumption may hold when the criminal proceedings come to trial, however in the investigative stage of the case -­‐ in the pre-­‐trial proceedings – such presumption is manifestly unsound. The inequality of resources between the State and the defence during the investigative stage is undisputed, and such can only be ameliorated by the obligation on the prosecution to make available all material to the defence. In this way the latter may be put on par with the prosecution, which in return provides equality of arms between the parties.