210 APPENDIêI V RAPPORT TAL-KUMMISSJONI DWAR IL-HATRA TA’ ESPERTI TAL-QORTI CONTENTS 1. PROJECT BRIEF 1.1 Terms of Reference 1.2 The Commission 1.3 Methodology 2. CONSULTATIONS 2.4 Malta Union of Professional Psychologists 2.5 Department of Correctional Services 2.6 Malta Association of Social Workers (MASW) 2.7 Association of Court Experts 2.8 Chamber of Architects 2.9 Dr. Anna Mallia 2.10 Malta National Laboratory Co. Ltd (MNL) 2.11 Maltese Psychological Association 2.12 Emanuel Mallia and Associates 2.13 Institute of Forensic Studies 2.14 Mortuary Services 2.15 Salient Points 3. RECOMMENDATIONS ATTACHMENT A Letter of Appointment B Terms of Reference C Code of Organisation & Civil Procedure Cap. 12 D Advertisement
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APPENDIêI V
RAPPORT TAL-KUMMISSJONI DWAR IL-HATRA TA’ ESPERTI TAL-QORTI
CONTENTS
1. PROJECT BRIEF 1.1 Terms of Reference 1.2 The Commission 1.3 Methodology 2. CONSULTATIONS 2.4 Malta Union of Professional Psychologists 2.5 Department of Correctional Services 2.6 Malta Association of Social Workers (MASW) 2.7 Association of Court Experts 2.8 Chamber of Architects 2.9 Dr. Anna Mallia 2.10 Malta National Laboratory Co. Ltd (MNL) 2.11 Maltese Psychological Association 2.12 Emanuel Mallia and Associates 2.13 Institute of Forensic Studies 2.14 Mortuary Services 2.15 Salient Points 3. RECOMMENDATIONS ATTACHMENT A Letter of Appointment B Terms of Reference C Code of Organisation & Civil Procedure Cap. 12 D Advertisement
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DOCUMENT A Specialities and Areas of Expertise that may be required in Civil and Criminal Cases B Proposed Tariffs C Measures to reduce reference to Court Experts D Proposed Amendments to the Code of Organisation and Civil Procedures E Recommended amendments to the relevant sections of the Criminal Code relating to the appointment of Court Experts F Establishing procedures for the nomination of Foreign Experts when these are so required G Establishment of a Board to keep a register of Court Experts and to have other related functions ANNEX A Institute of Forensic Studies B Statute of Institute of Forensic Studies C Association of Court Experts; Statute and Bye-Laws D From Professor Alfred J. Vella E Memorandum — Association of Court Experts F Rapport tal-Kamra tal-Periti dwar il-Hidma tal-Esperti Gudizzjarji fil-Qorti G The Malta National Laboratory H Dipartiment tas-Servizzi Korrettivi Servizz ta’ Probation I Maltese Association of Social Workers J Appointment of Psychologists as Court Experts
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1.0 Project Brief The Commission on the Appointment of Court Experts was set up by the Minister of Justice and Local Govemment by letter dated 28 August 2001 (ATTACHMENT A). Its main purpose was to investigate and report on several matters relating to the appointment of Court Experts as detailed in the Terms of Reference and on any other areas or matters it feels are important, and to make recommendations thereon. 1.1 Terms of Reference Whereas both the Criminal Code (Chapter 9) and the Code of Organisation & Civil Procedure (Chapter 12) provide for the appointment of experts to assist the Courts by carrying out the functions assigned to them by the said Codes; Whereas the present method of appointment of experts requires review with a view of: a) establishing which areas of competence require the appointment of experts in both the Civil and the Criminal Courts and in doing so determine in which areas it is imperative that local expertise be developed; b) determining what qualifications are required for each area of competence for a person to be deemed an expert and who should certify such qualifications; c) establishing how panels of experts can be made more open to qualified persons who may wish to offer their services whilst ensuring that persons not so qualified are not included in the panel; d) suggesting methods on how the panels of experts to be nominated by the Minister of Justice are, as far as possible, not subject to the absolute discretion of the Minister; e) establishing procedures for the nominations of foreign experts when these are so required; f) establishing procedures for the independent monitoring of the work undertaken by the experts and for the removal of experts from panels. Whereas it is also required to review the method of operation of experts with a view of: a) possibly reducing the instances where a reference to experts is required without, however, in any way prejudicing the interests of justice; b) increasing the efficiency of experts by reducing the time between their appointment and the delivery of their report; c) reviewing the fees paid to experts and suggesting fixed tariffs in both the civil and criminal field Which, as far as possible, justly remunerate the expert and minimise discretion; d) introduce methods of accountability in order to assess the work produced by experts and devise evolution criteria; e) suggest procedures meant to ensure that appointed experts have equal access to nominations whilst ensuring that experts who do not deliver as required by the Court are duly penalised.
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The Commission was set up to investigate and report on all the above matters as well as any other areas or matters it felt important on the said subject and consequently gave its recommendations. Relevant excerpts from the Code of Organisation and Civil Procedure and from the Criminal Code, (ATTACHMENT B), were also presented with the terms of reference for the perusal of the Commission. Examination of such legal provisions along with the practices and procedures currently operative at the Courts of Justice, and the various suggestions by interested persons and associations formed the basis for discussions and final recommendations. 1.2 The Commission Mr. John Gatt — Permanent Secretary, Ministry of Justice & Local Government Chairperson Mr. Justice David Scicluna - nominated by the Chief Justice Magistrate Consuelo Scerri Herrera — nominated by the Chief Justice Dr. Joseph Giglio — nominated by the Minister of Justice & Local Govemment Dr. Joseph Micallef Stafrace — nominated by the Minister of Justice & Local Government Mr. John Rizzo — Assistant Commissioner - representing the Commissioner of Police; Supt. Pierre Calleja substituted Mr. John Rizzo upon the appointment of the latter to Commissioner of Police Dr. Stephen Tonna Lowell — nominated by the Attorney General Dr. Donatella Frendo Dimech — nominated by the Attomey General Dr. Victor Zammit - Director Legal Services - representing the Director General, Law Courts Dr. Francesco Depasquale — nominated by the Chamber of Advocates Mr. Saviour Azzopardi - Assistant Director — Secretary 1.3 Methodology The Commission held twenty-eight meetings during which it held consultations with the various associations and other persons who were interested in the subject matter. It also interviewed persons whom it considered resourceful for its conclusions. Select groups and individual members held a number of other sessions in the preparation of topic papers. The Commission held its first meeting on 19 October 2001 and others as shown hereunder: except for the recess periods in April and August. 26 October 2001 9 November 2001 23 November 2001 30 November 2001 14 December 2001 21 December 2001 4 January 2002 18 January 2002 25 January 2002 1 February 2002 8 February 2002 15 February 2002 22 February 2002 1 March 2002 8 March 2002 14 March 2002 22 March 2002 10 April 2002 9 May 2002 16 May 2002 22 May 2002 29 May 2002 5 June 2002 12 June 2002 20 June 2002 26 June 2002 1 July 2002 9 July 2002
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2.0 Consultations 2.1 The fulcrum of the Commission’s work was the wide experience of Commission
Members in the matter related to Court Experts coupled with that of interested parties and their suggestions. To reach one of its objectives of basing its report on as wide a consultation process as possible, the Commission invited organisations and interested persons to come forward and pronounce and discuss their ideas on the matter. To this effect an advert was published on the local media (Annex C).
The persons who expressed their interest were the following: Mr Natalino Agius — Motor Damage Assessor and Valuer Prof Alfred J. Vella, on behalf of (o.b.o.) Association of Court Experts Dr Ramona Frendo, o.b.o. Emmanuel Mallia & Associates (Advocates) Arch. Guido J. Vella Dr Bridget Ellul — Chairperson Board of the Institute of Forensic Studies University of Malta Arch. Joseph P. Dimech, o.b.o. J.P. Dimech & Associates (Architects & Civil Engineers) Arch. Paul Camilleri — President Chamber of Architects Mr Manuel Mangani — Secretary, Maltese Association of Social Workers Mr George M. Mangion, o.b.o Pannell Kerr Forster, Malta, (Certified Public Accountants & Auditors) Arch. David P. Pace Dr Anna Mallia Ms Bella Hili, o.b.o. Ocean Finance Consultants Ltd. Ms Miriam Sevasta, o.b.o. Probation Services of the Department of Correctional Services Dr Martin Balzan Secretary, The Medical Association of Malta Ms Clarissa Sammut Scerri, P.R.O. Maltese Psychological Association Dr Paul Bartolo, Malta Union of Professional Psychologists Inspector John Ellul, Forensic Science Laboratory, Police General HQ Mr Josef N Grech and Mr Mario Mifsud from Malta National Laboratory Co.Ltd.
2.1.1 The Commission also interviewed Mr Francis Galea — Director Criminal Courts and Criminal Tribunals, who for a number of years had been directly involved in the Taxation of Experts’ reports.
2.2 Members of the Commission were entrusted, either in sub-groups or individually
to prepare papers on specific matters deriving from the terms of reference. These topic papers were later on discussed, amended and adopted collectively by the Commission, keeping also in view the suggestions and comments that emerged from the consultations.
2.3 Salient points emanating from the reports and formal consultations held with the Commission.
The proposals listed hereunder do not necessarily imply acceptance and approval by the Commission, but were referred to when the Commission worked on its own recommendations
2.4.0 Malta Union of Professional Psychologists (MUPP)
Report presented by Dr. Paul A Bartolo Ph.D. (Lond) 2.4.1 Psychological issues are to be dealt with by qualified psychologists.
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2.4.1.1 In the absence of appropriate legislation, in agreement with the MUPP, Management and Personnel Office has established the criteria for Educational and Clinical Psychologists. In January 2001 the MUPP and the Maltese Psychologists Association had agreed on a draft bill of the Psychologists and Profession Act, including the conditions required for qualifications as for a Warrant.
2.4.1.2 The Commission is invited to urge Government to pass this law as soon as possible.
2.4.2 Since psychology is a Wide discipline, it is suggested that the inquiring
Magistrate indicate clearly the issues involved for the incumbent psychologist “expert” to decide whether he/she is competent enough for the assignment.
2.4.3 Appointment of psychologists as Court Experts should be spread evenly on all
qualified psychologists due to pressure of work. 2.5.0 Department of Correctional Services — Probation Services
Report presented by Ms. Miriam Sevasta — Senior Probation Oflicer 2.5.1 The functions of the Probation Officer in the judicial system include Supervision
of Probation Orders, Suspended Sentences, preparation of Pre-sentence Inquiry Reports and Social Inquiry Reports.
2.5.2 Recommendations / Comments: 2.5.2.1 Reports are to be presented on the date appointed by the Court (eliminating
possibilities of invalidation). 2.5.2.2 Some members of Judiciary request the probation officer to supervise the person
upon Whom a report would have been drawn, however, tantamount to a probation order without specific conditions being imposed thus impeding the Probation Officer from exercising any control on the “accused”.
2.5.2.3 The time lag between the reporting period and the pronouncement of the Sentence in some instances runs into months — whilst there is no obligation on the Probation Officer to supervise the accused in the absence of a Probation Order.
2.5.2.4 Reports are sometimes requested by the defence; in fact it is suggested that this be done against payment by the defence to the Department.
2.5.2.5 Reports are to be requested in genuine cases not to shift responsibility on the Probation Officer.
2.5.2.6 Probation Officers lack protection — it was suggested that the Presiding Magistrate or Judge requires the address of the reporting Probation Officer, the official (departmental) address would be sufficient.
2.5.2.7 Distinction is to be made between types of Reports thus avoiding the collection of certain details that are not required.
2.5.2.8 Undue waiting time in the Courts Corridors rendering the Officers idle. 2.5.2.9 Some members of the Judiciary are not utilising the probation services to the
benefit of the accused — Conditional discharge being granted instead of a Probation Order accompanied by supervision.
2.5.2.10 When a probation order is proclaimed, the Adjudicator should check Whether a Probation Officer has already been appointed in the same case to avoid having more than one Probation Officer following the same case.
2.6.0. Maltese Association of Social Workers (MASW)
Report presented by Christina Borg — Chairperson - 17 January 2002
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2.6.1 Qualification is the most appropriate benchmark to ensure that a person is qualified to act as a court expert in social work.
2.6.2 The Social Workers Professional Act is in the Pipeline. It is envisaged that a register of social workers be kept by the Social Workers Board.
2.6.3 Until passage of this Act in Parliament, it is recommended that only members of the Association be appointed Court Experts because only these members are bound by a Code of Ethics.
2.6.4 Only social workers not previously involved in a particular case are to be appointed as Court Experts on that particular case.
2.6.5 Court Experts are to be given clear terms of reference and realistic time frames within which to present their report.
2.6.6 Concern was shown at the inefficient court system when it comes to giving evidence in court (mainly cancellation of proceedings).
2.6.7 Payment Procedures: 2.6.7.1 MASW has reservations on the practice of clients themselves paying for the services — when generally they cannot afford it. 2.6.7.2 The method of payment has to be reviewed MASW suggests a method whereby the court appoints an established agency to prepare reports for clients who cannot afford to pay the fees (means-tests are to be used)
2.7.0 Association of Court Experts
Report by Prof Alfred J. Vella and Prof M. Therese Camilleri Podesta
2.7.1 Target date for submission of Report.
2.7.1.1 a specific time period for submission of forensic report has to be established. An eight-week period is suggested 2.7.1.2 allow formally for an extension in cases of necessity
2.7.2 Method of submission of Report
2.7.2.1 at the moment, the submission of a report requires several visits to the courts 2.7.2.2 a signed report submitted under oath to the Court Registrar should involve only one visit to the courts 2.7.2.3 court experts should be asked to attend judicial proceedings only if cross-examination is required 2.7.3 Giving evidence during trial by jury 2.7.3.1 lacks of facilities at the Law Courts — precludes expert witnesses from doing any useful work during waiting time 2.7.3.2 experts could be summoned on the mobile phone 30 to 45 minutes before they are truly required.
2.7.4 Tariffs
2.7.4.1 the association is against a system of flat tariffs, at least, for certain categories of Court work 2.7.4.2 the tariff should be calculated on the basis of 3 — tier formula (1 : 1.5 : 2) according to which payment would be established 2.7.4.3 reimbursement of expenses should be separate from the professional fee
2.7.5 Other matters:
2.7.5.1 there is a need to vet rigorously the personal and professional qualifications of people who are entrusted with serving the courts, as experts 2.7.5.2 proper screening is to be made by a special committee appointed for this purpose 2.7.5.3 such Committee is to review its position from time to time
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2.8.0 Chamber of Architects
Report presented by Architect David Pace General
2.8.1 The term “perit tekniku” to be substituted by “espert gudizjarju”
2.8.2 Concern was shown about the waste of time usually experienced by court
experts; this is leading to refusal on the part of persons to be appointed court experts; if more persons were willing to accept court appointments, then distribution of work would be on a greater number of people resulting in greater efficiency
Oher matters 2.8.3 Space: adequate place where court experts could examine plans is needed
lockers are required where one could keep court files and other documents 2.8.4 Appointment: should be clear and limited to needs. 2.8.5 Sittings: a programme assignment of sittings should be determined prior to
assignment being given 2.8.6 Notifications: it often happens that a court expert is informed of his appointment
much before he is fonnally notified 2.8.7 Records of the proceedings (Processi): in cases where it is not practical to
photocopy large documents, it becomes necessary that the court experts withdraw the whole file; here it is being suggested that excerpts are prepared in time for the next sitting following such nomination
2.8.8 Police Stations (Ghases): there are instances when court experts encounter difficulty in communicating with the duty inspector.
2.8.9 Court Halls: it is recommended that court experts be given controlled access to electronic case lists system so that they could register their progress electronically without having to attend at the Law Courts.
2.8.10 Taxation: uniformity in taxation is called for; perhaps this could be attained if this is done by a dedicated court official or an ad hoc unit
2.8.11 Register: (i) a register of court experts should be kept indicating the expertise and experience of experts
(ii) short courses are to be organised for prospective court experts and are to be organised in collaboration with the Ministry of Justice and the Chamber of Architects
2.9.0 Dr. Anna Mallia - Points from discussion held on 21 December 2001 2.9.1 There is a need for an official register of court experts (as in fact is already
required by law) 2.9.2 Determination of qualifications is necessary 2.10.0 Malta National Laboratory Co. Ltd. (MNL) - Points from discussion held on 21
December 2001 2.10.1 Tariffs for the services rendered by MNL do not exist 2.10.2 Presentation of reports at Court was time consuming
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2.10.3 Ethical conduct is required 2.10.4 MNL would like to be nominated as a juridical person instead of having physical
persons nominated 2.11.0 Maltese Psychological Association Points from discussion held on 14 December 2001, Dr. Angela Abela President, Ms.
Clarissa Sammut Scerri PRO 2.11.1 No register of psychologists exists; it is the Court that decides on appointments 2.11.2 Lawyers are allowed to call psychologists as experts (ex parte) for defence
purposes to obtain custody of children 2.11.3 Minimum requirements for recognition are important — at present M.Sc. (Psych.) 2.11.4 Draft legislation to regulate psychologists is in the pipeline 2.12.0 Emmanuel Mallia and Associates
Points raised by Dr. Ramona Frendo 2.12.1 New doctors do not know the procedure to be followed when compiling a report
for the courts 2.12.2 Therefore there is a dire need for training in basic legal procedures relating to
reports (perizji) 2.13.0 Institute of Forensic Studies
Points from discussion held on 30 December 2001 with Dr. B. Ellul and Ms. S. Scicluna
The Institute was set up by Legal Notice 27 of 1996 with the aims of: 2.13.1 Teaching and conducting research in Forensic Sciences and Criminology 2.13.2 Acting as a resource centre for the provision of court experts and expertise in the
various fields of its activity to the courts 2.13.3 Acting as an advisory body to the Government on matters pertaining to Criminal
Justice 2.13.4 No resources are available to carry out the above functions 2.14.0 Comments raised by Dr B Ellul, Chairperson, Mortuary Services 2.14.1 The method of appointment of court experts needs to be reviewed while it is felt
necessary that a more detailed decree is required. 2.14.2 Hospital staff is not formally appointed but are required to give evidence in court. 2.14.3 The law requires three experts even though they are hard to find; no additional
professionals are being trained at present 2.14.4 Equipment for court use is not being maintained by the Health Services 2.15.0 Salient Points 2.15.1 The present procedure for presenting the reports is very cumbersome 2.15.2 Court experts lack protection 2.15.3 Some photographs are presented to the Inquiring Magistrate separately, it is
therefore difficult to make cross-references
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2.15.4 Court experts fees are quite reasonable except when they are called to the Courts of Justice in Malta (Lm1.50 per day)
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3.0 Recommendations From an examination of the minutes held in every sitting it transpires that the following matters were raised and proposed, thus the Commission is putting forward the following recommendations: Recommendations
1. The Commission, in line with its terms of reference, has listed the areas of expertise that may be required in both Civil and Criminal cases. This can be evidenced from document Specialities and Areas of Expertise (Doc A).
2. The Court decree nominating a court expert should be specific, clear, detailed and
served on the expert as soon as possible, so that the court-nominated expert will not perform his duties outside his nomination. The report will relate solely to the terms of reference of the decree.
2.1 The Commission is of the opinion that Court nominations should only concern
physical persons and not judicial persons as was suggested by various bodies. 3. Amendments to the Criminal Code and the Code of Organisation and Civil
Procedure should be introduced so that presentation of reports by experts to be taxed and subsequent collection should be centralized within an office possibly with an officer in charge for Civil matters and one for Criminal matters. In criminal matters the court expert would be able to appear before this office, have his report taxed and confirmed immediately, before such officer who will be appointed as a commissioner of oaths so that the same expert would not be required to confirm his report again before the Court or Inquiring Magistrate who nominated the expert. Thus this report will then be passed on to the relevant Court. The witness should not be summoned to testify in court unless a cross examination is warranted. This is precisely in line with Section 550 (1) of the Criminal (Cap. 9). Before the Court of Magistrate as a Court of Criminal Judicature or Court of Inquiry, the report would be able to be presented by the Court Registrar just as happens in the case of presenting a proces verbal in the acts of proceedings. This would reduce waste of time and red tape for the expert Witness and also the necessary signature of the police officer and the member of the judiciary signing on the relative voucher.
4. The Government should provide a mechanism for the Court to have records/database of expertise available through foreign laboratories.
5. The problems regarding lack of experts in certain fields, was highlighted on a
number of meetings. This matter should be given priority especially those fields regarding data examination, calligraphy, counterfeit documents, fingerprints, cyber crime, forensic accountancy, toxicology and forensic dentistry. The Government should encourage and help the Institute of Forensic Studies to be able to work better and obtain better results in recruiting potential people who are interested in any of the above specifically for foreign training and if need be, commit them to government service for a period of time.
6. The Commission recommends that the government should create an adequate
mechanism so that existing police officers employed with the Forensic Science Laboratory (FSL) — would be released from their duties under the police force and thus be able to serve as independent Witnesses to the Courts and this in line
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with recent judgments given by the Constitutional Courts of Malta. 6.1. Furthermore, the Commission strongly recommends that the appropriate
government organs give immediate attention to the restructuring and strengthening of the Malta National Laboratory particularly in regard of the definite transfer of personnel from the FSL and for the provision of adequate apparatus.
7. A provision in the Criminal Code should be introduced regarding the collection of taxed expenses carried out in a Magisterial Inquiry. It was suggested that in the case of a conviction, the Court in its discretion, should be able to order the accused to pay for the expenses incurred in the inquiries in its final judgment. In view of this the Commission suggests that the existing Section 533 of the Criminal Code (Cap. 9) be amended to include expenses incurred in course of the inquiry relating to the in genere and consequently the existing term “shall” shall be substituted by the word “may”.
8. The Commission notes with pleasure that one of the proposals that it was going
to suggest in particular that an inquiry should not be carried out if the punishment of that crime does not exceed 3 years imprisonment has already been introduced by means of Section 130 (a) (i) of Act III of 2002.
9. Agreement was reached in that certain tariffs currently applied should be
reviewed to better reflect the extent of the work involved. Vide new tariffs suggested in document Proposed Tariff (Doc B). The Commission suggests that revision of expenses should be made by the Board according to exigencies.
10. It was suggested that in Civil matters, fees of experts should never exceed the value of the property under contestation or its merits.
11. The Commission recommends new measures to be taken to reduce reference to
experts and new procedures were suggested in cases relating to water and electricity meter tampering and clip-on fraud, document Measures to Reduce reference to Court Experts (Doc C).
12. Special attention was given in a number of sittings so that Sec 650(b) of the
Criminal Code (Cap. 9) should include the appointment of legal experts. It should read “special, legal, technical and other skills so required”.
13. A number of amendments to the relevant sections of the COCP relating to the
appointment of court experts were suggested, document, Proposed Amendments to COCP (Doc D).
14. A number of amendments to the relevant sections of the Criminal Code relating
to the appointment of court experts were suggested. A list of the relevant amendments is presented in document, Recommended amendments to the Criminal Code (Doc E).
15. The Commission also proposed its recommendation regarding the appointment of
foreign experts as per document Procedures for nomination of Foreign Experts (DOC F).
16. The Commission suggested the setting up of a Board having its own constitution
and rules of procedure as suggested in the attached document, Establishment of Board to keep register of Court Experts (Doc G). This Board would establish procedure for the independent monitoring of the work undertaken by the experts
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and for the removal of an expert from the register if such fails to pursue the Court’s decree.
The Board shall have the following duties:
16.1 to make and keep a register of court experts. This should be accessible to the Members of the Judiciary; in fact the Board would have to liaise with Judiciary regularly to this end
16.2 to seek advice in the drawing of the register from the Chamber of Professional Bodies in the case when the recognition and acceptance of a professional person is involved, in all other matters of technical nominations regard will be given to work experience and reference
16.3 to see that no person shall be appointed as a court expert if he has more than twenty five reports pending at the same time, except in those cases when the court thinks otherwise or when the parties otherwise agree. The final decision of a nomination shall rest with the judiciary
16.4 to provide on line service showing appointment of court experts 17. Since the Commission is suggesting the setting up of an independent Board with
its own constitution, the Minister of Justice will no longer be responsible for the appointment of official experts as provided for in Article 650 (2) of the Criminal Code (Cap. 9). Thus the Commission recommends that Section 650 (2) will be repealed from the existing Code and in so doing this will uphold the existence of the independence of the Judiciary from the Executive consequently preserving the separation of powers.
18. Commission suggests that the Training Academy recently set up under the
auspices of the Ministry of Justice should provide adequate training for prospective court experts dealing with court procedure and subsequent presentation of report.
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LIST OF ATTACHMENTS Attachment A - Letter by Minister of .Justice and Local Government setting up
the Com mission on the Appointment of Court Experts. Attachment B - Terms of Reference Attachment C - Code of Organisation and Civil Procedures (CAP. 12) (relevant
sections)
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COMMISSION ON THE APPOINTMENT OF COURT EXPERTS
Terms of Reference
Whereas both the Criminal Code (Chapter 9) and the Code of Organisation & Civil Procedure (Chapter 12) provide for the appointment of experts to assist the Courts by carrying out the functions assigned to them by the said Codes; Whereas both the Criminal Code and the Code of Organisation and Civil Procedure provide for the method of appointment of experts providing that the appointment may be either by the Court “motu propio” or by the Court from lists ofexperts compiled by the Minister responsible for Justice; Whereas the present method of appointment of experts requires review with a view of: a) establishing which areas of competence require the appointment of experts in both the Civil and the Criminal Courts and in doing so determine in which areas it is imperative that local expertise be developed; b) determining what qualifications are required for each area of competence for a person to be deemed an expert and who should certify such qualifications; c) establishing how panels of experts can be made more open to qualified persons who may wish to offer their services whilst ensuring that persons not so qualified are not included in the panel; d) suggesting methods on how the panels of experts to be nominated by the Minister ofJustice are, as far as possible, not subject to the absolute discretion ofthe Minister; e) establishing procedures for the nomination of foreign experts when these are so required; f) establishing procedures for the independent monitoring of the work undertaken by experts and for the removal of experts from panels. Whereas it is also required to review the method of operation of experts with a view of: a) possibly reducing the instances where a reference to experts is required without, however, in any way prejudicing the interests of justice; b) increasing the efficiency ofexperts by reducing the time between their appointment and the delivery oftheir report; c) reviewing the fees paid to experts and suggesting fixed tariffs in both the civil and criminal field which, as far as possible, justly remunerate the expert and minimize discretion; d) introduce methods of accountability in order to assess the work produced by experts and devise evolution criteria; e) suggest procedures meant to ensure that appointed experts have equal access to nominations whist ensuring that experts who do not deliver as required by the Court are duly penalised.
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The Commission is being tasked to investigate and report on all the above matters as well as any other areas or matters it feels are important on the said subject and to make its recommendations thereon. The report of the Commission should be submitted by the 31“ March 2002.
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LIST OF DOCUMENTS Document A - Specialities and Areas of Expertise Document B - Proposed Tariffs Document C - Measures to Reduce reference to Court Experts Document D - Proposed Amendments to Code of Organisation and Civil
Procedures Document E - Recommended Amendments to the Criminal Code Document F - Procedures for Nomination of Foreign Experts Document G - Establishment of Board to keep register of Court Experts
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DOC ‘A’
The specialities and Areas of Expertise that may be required in Civil and Criminal Cases
The specialities that require mention for a registrar to be kept in connection for court experts are the following: 1. Medical Specialities
(a) Anaesthetics and Intensive Care Medicine (b) Dermatology and Venereology (c) General / Internal Medicine (d) Gynaecology (e) Histology (f) Maxillo-facial Surgery (g) Medico-legal forensics (h) Occupational Medicine (i) Ophthalmology (j) Orthodontics (k) Orthopaedics (l) Paediatrics (m) Pathology (n) Plastic Surgery (o) Psychiatry (P) Surgery (q) Toxicology (r) Veterinary services
There is no local person trained in the field of Oral and Maxillo-facial Surgery / Forensic Dentistry. This speciality is of great importance since it is relevant both in civil matters e.g. victims of traffic accidents and criminal matters e. g. discovery of unidentified dead bodies. 2. Scientific Specialities
(a) Archeologists (b) Architects (c) Arson experts (d) Art appreciation and Restoration experts (e) Calligraphy (f) Data Engineers (g) Electronics (h) Engineers Electrical / Chemical / Civil / Mechanical (i) Explosives (j) Industrial Chemists (k) Marine Biologists (l) Telecommunications Engineers
(a) Psychology (i) Child (ii) Drug and alcohol abuse (iii) Educational (b) Sociology
9. Forensic
(a) Ballistics (b) Video and Photography Technology (c) DNA (d) Fibre tappings (e) Fingerprint experts (f) Haematology (g) Paint examination (h) Pyrotechniques (i) Scene of the Crime Officers (j) Serology (blood and other corporal fluids)
10. Others
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This above list is not exhaustive although extensive. It is furthermore observed that presently the Local Courts are facing problems in particular fields of speciality namely:
1. Arson (only one expert available) 2. Calligraphy (only one expert available) 3. Explosive and Pyrotechniques (only one expert available) 4. Fingerprint expert (no independent expert is available) 5. Forensic Dentistry (no real expert is available) 6. Toxicology (only one expert available)
That primary importance should be given to these specialities.
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DOC ‘B’
PROPOSED TARIFF
A. FEES PAYABLE TO COURT EXPERTS AND REFEREES
1a For travelling expenses between islands Actual travel cost between islands against receipts
1b Travel within Islands Lm5 2 For valuation – one per centum (1%) on the amount of the subject matter of the reference Provided that the above mentioned fee shall include the remuneration for drawing up the report, holding sittings, and for attendance in court and elsewhere where necessary including expenses. Provided further that if there is more than one amount of the subject matter of the reference, all such amounts shall be added together and the total obtained shall be considered as one amount for the purpose of this paragraph.
Minimum Lm15, Maximum Lm1000
3 For inspecting explosive material, conducting any tests thereon and for drawing up and submitting the report.
Report is assessed on number of hours declared by the expert to finalise his report – Lm15 per hour
4. For inspecting electrical and mechanical equipment or other machinery, for conducting any tests, thereon and for drawing up and submitting the relative report
Lm15 first hour, and Lm10 per hour for subsequent hours.
5. For any technical assistance given to a Magistrate at the scene of the Inquest.
Lm15
6. (a) For carrying out a histological examination , and for drawing up and submitting the relative report. (b) Special preparation (technical).
Lm60 Add Lm15
7. For conducting any tests to establish whether any document is forged, for drawing up and submitting the relative report.
Lm40
8. For conducting any tests on a firearm and other ballistic references, for drawing up and submitting the relative report.
Lm10 per hour as declared by expert
9. Lifters Lm1.50 10. Static Lifter Lm20 11. For conducting a comparative study of fingerprints or footprints, for drawing up and submitting the relative report
Lm40
12. Transcription fees for every 200 words or part thereof
Lm0.50
13. Destruction of drugs Lm10 – Lm15 depending on amount
14. Medico-Legal examination Lm15 per hour as declared by expert
15. Reports on IT fraud/Data Security Lm15 per hour + Lm10 for subsequent hours; maximum Lm 1000
16. Inquiries re : Arsons, legal, medical, scientific
12. Tapings Lm1.50 13. Handling of packaging Lm1.00 14. Other expenses (per page) Lm0.25
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C. GENERAL TARIFFS
Preliminary: Decree Inquiry: After 8.00 a.m. Lm10 (incl Transport) After 8.00p.m./Sundays and Public Holidays Lm15 Evidence: Correspondence Lm2 per letter
D. OTHER TARIFFS (Civil)
Sittings (when expert is not called to testify) Lm5 each Scetch (skizz) Lm3 Transport Lm5 Plans: traffic accidents (minimum per report) Lm30
Murders Other accidents
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E. TYPE OF EXAMINATIONS
VISUAL A). Macro Descriptive
Scene of crime Collection and safe-keeping First 10 @ Lm2.50 cach
11-100 @ Lm2.00 each 101 + @ Lm0.50 each
Photography First 10 @ Lm1.50 each 11 + @ Lm1.25 each
B). Micro Descriptive Photography First 10 @ Lm1.50 each
11+ @ Lm1.25 each
ANALYTICAL A). Wet Chemistry (Includes both Quantitative and Qualitative Examinations) General Chemical Analysis First 10 @ Lm5.00 each
11-50 @ Lm2_00 each 51 - 100@ Lm1.00 each 101+ @ Lm0.50 each
B). Mechanical 1. Microscopy 5 tests = 1 analysis 2. Scanning Electron Microscope (SEM) 5 tests = 1 analysis 2.. Gas Chromatography/Mass Spectrometry (GC/MS) 3. Fourier Transfonn Infra Red (FTIR) 4. Glass Refractive Index Measurement (GRIM) Drug Analysis Standard Tariffs 1. Visual & Colour Tests First 10 @ Lm5.00 each 2. Thin Layer Chromatography (TLC) 11 - 50 @ Lm2.00 each 3. Gas Chromatography (GC) 51 – 100 @ Lm1.00 each 4. High Performance Liquid Chromatography (HPLC) each 101+ @ Lm0.50 5. Fourier Transfer Infra Red (FTIR) 6. Mass Spectrometry (MS) Gun Shot Residue (GSR) Analysis 2/3 - Component Analysis (Every 5 particles analysed manually = 1 analysis) Document Analysis Examination of Hand-written or Printed Material (Standard tariffs apply)
1. Density Calibration 2. Glass Refractive lndex Measurement (GRIM) (Every 5 tests – 1 Analysis) 3. Scanning Electron Microscope (SEM)
Explosives Analysis (Standard tariffs apply)
1. Visual/Colour Test 2. Thin Layer Chromatography (TLC) 3. Gas Chromatography (GC) 4. High Performance Liquid Chromatography (HPLC) 5.. Fourier Transfer Infra Red (FTIR) 6. Mass Spectometry (MS)
1. Autopsy Sudden Death Lm40 Accidental Death Lm50 Murder Lm80
2. Histology Lm40 3. Levee du Corp Lm20
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G. FORESEEN ANALYSIS & FIELDS OF EXPERTISE
Fingerprints 1. Powder+Lifter Lm2 each 2. Chemical 1-20 @ Lm5 per document examined
21 and over @ Lm3 per document examined 3. Mechanical Lm20 4. Comparisons First 10 @ Lm5 each
11-20 @ Lm3 each 21 and over @ Lm2.50 each
Marks 1. Powder + Lifter Lm2 each 2. Chemical 1-20 @ Lm5 per document examined
20 and over @ Lm3 per document examined 3. Comparisons First 10 @ Lm5 each
11-20 @ Lm3 each 21 and over @ Lm2.50 each
Scene of crime Collection & Safe Keeping Description First 10 @ Lm2.50 each
11 - 100 @ Lm2 each 101 and over @ Lm0.50 each
Photography First 10 @ 1.50 each 11 and over @ Lm1.25 each Lm2 each
Court Attendance/Verbal Submissions (Post ad hoc decree) Lm10 - Lm25
Destruction Rates of access apply Lm10-Lm15 depending on amount
Translators
Arabic/French/Italian & Other languages Lm4 per sheet (A4/1.5 space/Font 12)
Technical Translations Lm5 per sheet (A4/l.5space/Font 12) Maltese/ English Lm3 per sheet (A4/l.5space/Font12)
Technical Translation Lm4 per sheet (A4/1.5space/Font 12)
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Oral Translations Lm10 per hour or part thereof
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(Doc C)
Measures to reduce reference to Court Experts
One of the crimes that generates a large number of magisterial inquiries and consequently a huge public expense is that of theft of electricity and water. The position today is that when a tampered electricity or water meter is discovered by the competent authorities, the magistrate on duty is called and a magisterial inquiry is held. This naturally entails appointing of courts experts, waiting for their report and waiting for the court’s conclusions before the Executive Police are in a position to prosecute the person responsible before the Courts. The Commission will hereby make its suggestions for the relative laws to be amended in order:
(i) to do away with the need of a magisterial inquiry in these cases, thus eliminating a huge public expense as well as enabling the Executive Police to prosecute without delay in cases which merit prosecution;
(ii) to minimise the prosecutions before the Court of Magistrates as much as possible.
When a person is today charged with this crime before the Court of Magistrates, he/she is charged with aggravated theft and voluntary damage to property, namely Sections 261 et seq. And Section 325 of the Criminal Code. This means that the discretion to prosecute is entirely in the hands of the Executive Police. Consequently the discretion to waive proceedings is also entirely in their hands. In practice, notwithstanding such discretion, in most cases the Executive Police do not prosecute when told by EneMalta representatives that the outstanding debts had been paid. However, this situation is not covered by law. The Commission is suggesting the following: When an electricity or water meter is discovered to have been tampered with, representatives of Enemalta or Water Services Corporation are to remove such meter, thereby replacing it with a new one if the need arises. They should then investigate the case, possibly with the help of the police. In the eventuality of criminal proceedings against any person, photographs of the tampered meter will be materially presented in Court and the actual meter will be formally or materially presented. Thus, in the case that the photographs are in any way contested, reference to the actual meter can be made. This procedure will eliminate the need of a magisterial inquiry and the consequent appointment of experts. AD hoc provisions dealing theft of electricity and water as well as voluntary (and in voluntary) damage to electricity and water meters should be introduced in the Enemalta Act (Chpt. 272) and the Water Services Corporation Act (Chpt. 355). The provisions should be very similar, if not identical, to those currently found in the Criminal Code. A provision to the effect that criminal proceedings may only be instituted with the consent of the Director of Enemalta or of the Chairman of the Water Services Corporation as the case may be should be introduced in these Acts. Moreover, a provision similar to Section 63A of the Customs’ Ordinance (Chpt.37) should be introduced, thereby giving the Director or Chairman the power to negotiate an out of court Settlement
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(Doc D)
Recommended Amendments to relevant sections of the Code of Organisation and Civil Procedures relating to the appointment of Court Experts.
Subsidiary Legislation 12.09
Court Practice and Procedure Rules Appointment of legal referees shall be restricted. 12. (1) The appointment of legal referees shall be restricted to special and particular
cases where a real necessity arises because the cause requires specialized knowledge in a particular field of law. On any such appointment the court shall indicate clearly and precisely in the decree the reasons and justification for such an appointment.
(2) In cases where such legal referees are appointed, evidence shall be produced by means of a sworn statement to be made before the same legal referee and the provision of rule 11(3)(b) and (5) shall apply for the production of evidence before such legal referees. The court shall in each case order the legal referee to report to it on such dates as indicated by the court, so that the court shall be in a position to ascertain that its orders have been compiled With. The court shall fix a date for the definitive filing of the report.
It is suggested that this section be completely removed from the Court Practice and Procedure Rules, so as to avoid duplicity with the COCP and have certain provisions included in the COCP namely Section 645.
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(Doc E)
Recommended amendments to relevant sections of the Criminal Code relating to the appointment of Court Experts.
Introduction In view of the judgement by the Court of Criminal Appeal in the names “ll-Pulizija vs Helga D’ Alessandro omissis” [02.09.99] (copy attached), as well as subsequent judgments by the same Court confirming this judgment,1(1) we propose a few amendments to the sections of the Criminal Code dealing with “Experts”. In the above-mentioned judgments, the Court of Criminal Appeal stated categorically that the Court of Magistrates cannot delegate the hearing of witnesses to a “perit legali”. According to Section 650 of the Criminal Code a “perit legali" should only be appointed “where for the examination of any person or thing special knowledge or skill is required”. In these cases it is presumed that the magistrate does have the knowledge or skill required in such cases, namely that of hearing the evidence, evaluating it according to articles 637, 638 and 639 of the said Code, and applying the law to the facts that result. Once the legislator states specifically that “no expert shall be appointed solely for the purpose of examining witnesses on oath and taking down their depositions in writing and establishing the relevant facts” in the course of magisterial inquiry, the same argument applies multo magis to the Court of Magistrates as a Court of Criminal Judicature. Proposals are also being made in view of comments made by various experts to the Commission as well as in view of other case-law that will be mentioned in the course of this report. Book Second, Part III, Title I, Sub-Title II of the Criminal Code Section 650(1) In all cases where for the examination of any person or thing special knowledge or skill is required, a reference to experts shall be ordered. Three alternatives were considered, namely: In all cases where for the examination of any person or thing special, legal technical or other knowledge or skill is required a reference to experts shall be ordered. Or A second paragraph to this subsection, which will read as follows, shall be added: The special knowledge may include legal knowledge.
1 “ll-Pulizija vs Joseph Bartolo” [09.09.99] and “ll-Pulizija vs Bartolomeo Micallef et." [11.10.99]
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Or A proviso to this subsection, which will read as follows, shall be added: Provided that the court may refer any matter it deems necessary to a legal expert. The first alternative is the best preferred by the Commission. Section 650(2) The experts shall be chosen by the court. This subsection should remain unchanged. Section 650(2) proviso Provided that the Minister responsible /or justice may appoint one or more persons as official experts for the purpose of reporting on matters requiring special technical knowledge and, upon the appointment of any such persons, the court shall choose the experts from among such persons: This notwithstanding it shall be lawful for the court, when the oflicial experts are precluded from serving or for other special reasons to be stated in the order, to appoint another expert or experts in addition to or in substitution for those appointed by the Minister responsible for justice. It is being proposed that this proviso be totally repealed due to the appointment of the Board that is being suggested by this Commission. Section 650(3) For the purposes of section 533, thefees ofthe oflicial expertsfor services rendered in any particular case shall be taxed by the registrar in the same manner provided for the taxation of the fees due to other experts. Notwithstanding that there seems to be no apparent problem with this subsection, recent and not so recent case-law has established that the accused cannot be sentenced by the court to the payment of costs incurred in the employment of such (Section 533, Chpt.9) if the expert/s carried out his duties in the course of the in genere. It is being suggested that amendments be introduced in the Code (not necessarily to this particular provision) so as to rectify this situation. Section 650(4) As a rule the experts shall be appointed in an uneven number. It is being proposed that the scope of this subsection be discussed. Section 650(5) The court shall, whenever it is expedient, give to the experts the necessary directions, and allow them a time within which to make their report. The Court of Magistrates, whether sitting as a court of criminal judicature or as a court of inquiry, may moreover empower the expert of the experts, if more than one expert have been appointed, to receive documents and to examine witnesses on oath in the presence of
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the accused and, in any such case, the court shall not require further evidence in respect of the documents so produced or further examine the witnesses so examined, unless the court deems it necessary or unless the accused makes a request to that effect. Where more than one expert have been appointed, the court shall designate the expert who is empowered to administer the oath. In the first part of this subsection, the words whenever it is expedient, shall be deleted: The court shall, give to the experts the necessary directions, and allow them a time within which to make their report. However, in view of the above-mentioned judgment, “Il-Pulizija vs Helga D’ Allessandro omissis” [02.09.99], the second paragraph should be altered. It must be decided whether this paragraph be limited to the Court of Magistrates as a Court of Criminal Inquiry or whether it should be removed in its entirety. Section 650(6) The Court's decision to appoint experts shall be reduced to writing and shall be served on the experts so appointed. The gist of this subsection is to remain. However, it is being proposed that the law should specifically state that experts are not to commence their tasks prior to being duly notified by the court. The new section will read as follows: The court’s decision to appoint experts shall be reduced to writing and shall be served on the experts so appointed. The parameters of the appointment shall be specified and the experts shall commence their task as soon as they are duly notified. Provided that the expert shall not. in carrying out his duties. in any way exceed the parameters of his appointment. Section 651(1) & (2) (1) The experts may be challenged only on the same grounds on which a judge may be challenged. (2) The challenge shall be made in the manner and within the terms laid down in the Code of Organisation and Civil Procedure for the challenge of experts in civil causes. These subsections should remain unchanged. Section 652 The experts shall be summoned in the manner provided for the summoning of witnesses. They shall swear to have performed faithfully and honestly the duties assigned to them. It is being proposed that, in view of difficulties being encountered by the experts as witnessed by the Commission, this section be totally revamped. Section 653(1) & (2)
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(1) On terminating the work and the experiments which their profession or art may suggest, the experts shall make their report, either orally or in writing, according to the directions of the court. (2) The report shall in every cases state the facts and the circumstances on which the conclusions of the experts are based.
These subsections should remain unchanged Section 653(3), proviso & (4)
(3) If in the course of their work, the experts shall obtain from any person
information or circumstances of fact, such person shall be mentioned in the report, and shall be examined in court in the same manner as any other witness."
Provided that the above provision of this subsection shall not apply in regard to any person whom the experts will have examined on oath under subsection (5) of section 650, saving, however, the re-examination of any such person by the court as provided for in the said subsection.
(4) In matters within the jurisdiction of the Court of Magistrates, any such person may be examined on oath by the court, even in the course of the work of the experts.
In view of the above-mentioned judgment, these two subsections as well as the proviso need to be re-written. Section 653(5) If the report is made orally, it shall be reduced into writing by the registrar or by the person acting in his stead. This subsection should remain unchanged. Section 654 In cases within the jurisdiction of the Court of Magistrates as court of criminal judicature, the expert may be called upon by the court to be present at the hearing of the cause in order to advise the court, provided that the advice is given in the presence of the accused. This section should remain unchanged Section 655 The parties, the court, and, in cases within the jurisdiction of the Criminal Court, the jurors, may require the experts to give further elucidations on their report as well as on any other point which they may consider useful in order to make the opinion of the experts clearer. This section should remain unchanged. Section 656
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Those who are to judge are not bound to abide by the conclusions of the experts against their own conviction. This section should remain unchanged. Section 657 The provisions of subsections (4) and (5) of section 452 shall apply to experts. This section should remain unchanged.
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(Doc F)
“Establishing Procedures for the nomination of Foreign Experts when these are so required”
Recent experience in criminal cases has shown that there is still the absence of expertise in some fields of forensic analysis, particularly those concerning DNA profiling which the Commission feels it is still in its infancy here in Malta. DNA analysis is of the essence in this time and age when it comes to the investigation of crime. In Malta, it is only very recently that the police awareness to this important forensic analysis is being instilled. Traditionally, we used to rely on other forensic analysis such as fingerprint comparisons and most often the conventional and non-forensic “confession” by suspects. It is however interesting to note that the concept of genetic fingerprinting is culturally and structurally evolving in our country. It could be that we have identified the importance of it when the conventional evidence is absent. As a matter of fact it was only recently that we instituted criminal proceedings based solely on DNA evidence. But this is not where it stops. Any Benefits from this modern forensic analysis will render high cost particularly when considering that such profiling is being conducted abroad. The procedural problems encountered when proceeding abroad with such analysis are not scarce. In fact these are somewhat complex. For instance, the selection and nomination of an individual expert in the field as well as the chain of custody is of the essence. The current process to identify forensic institutions The selection of the services and the experts in the field has so far always been upon suggestions from either the prosecution or from other experts. These are normally established through personal contacts with the local forensic experts. Over the years we have always requested the foreign institutions to identify a person who will be solely responsible for the coun appointment. Once identified, foreign experts are brought to the notice of the Inquiring Magistrate and the latter will decide on whether to appoint or otherwise this expert/s. If the Magistrate decides to appoint the expert, then the exhibits have to be transported to the laboratory concerned. The problem of the conveyance of the exhibits will follow. The current procedure adopted is that of appointing courier who will eventually convey the items to the laboratory concerned and hand them over to the appointed expert. In this regard we have always been satisfied with the quality of service. However the burden to have a watertight scenario has always been placed on individuals within the criminal justice system who feel that they have to intervene due to the lack of standard procedures. For instance specific issues raised are those concerning:
• The chain of custody • Method of storage • Method of hand over
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• Method of packaging and transportation,
Experience has driven us to take the initiative and address these problems. In fact we have now adopted security measures in order to improve the procedure. These include the introduction of:
• Tamper proof evidence tape • Methods of safe sealing • Documentation and registration of exhibits • Submission of exhibits form and others
One must point out however, that these procedures have only been introduced through personal or departmental initiatives and not upon any policy placed by authorities. CHAIN OF CUSTODY There must be a form which must accompany each individual exhibit. This must be duly signed by the person receiving the exhibit. An exhibit which is not accompanied by the chain of custody form must not be accepted by the recipient. This is a standard procedure which has long been adopted by our European counterparts. RECEIPT The current procedure adopted in the submission of exhibits to the court leaves the experts empty handed and with nothing to show that they have submitted the exhibits. Therefore, it is of utmost importance to introduce procedures whereby the court officials will sign a receipt upon reception of court exhibits. As regard the packaging of exhibits with adequate labelling, these can be easily introduced however this introduction must be followed by a regularised standard procedure in order to have all the stake holders adhering to the regulations and not having different experts adopting or using different procedures. MATERIAL & EQUIPMENT More or less, the court has always rested on whatever is or was used by the police experts without ever questioning the type of material used for the preservation of exhibits. However new material such as evidence tape, has not only been accepted but also demanded by the courts. FOREIGN EXPERTS The criteria used for the appointment of foreign experts should not be different from that adopted for local experts. We have to accept the issue that any forensic lab has its trained technicians and each individual within the laboratory has a particular role. Therefore for certain types of analysis it is not possible to appoint an individual and expect that he/she will be responsible for the entire analytic process. Although the appointment must be specific in the sense that the person appointed has to be responsible for the exhibit under analysis and to supervise the analytic process, an appointment specifying the lead expert and assistants should be made if the requested analysis require the services of other technicians within the lab.
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Suggestions 1. That a number of foreign laboratories be identified and approved by the board. 2. That a number of experts/technicians working Within these laboratories be likewise identified and accepted by the board. 3. That a process of nomination be established by the board to identify a set of standard procedures for the best administration in the handling of forensic evidence. 4. That a proper standard exhibits packaging material as well as a hand over procedure be identified and approved by the board in order to ensure that the chain of custody is maintained irrespective of whether the exhibit is being handed over from one expert to another locally or abroad. 5. The above dispositions shall be the responsibility of the Board and endorsed by a Court’s decree.
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(Doc G)
Establishment of a Board to keep a register of Court Experts and to have other related functions.
1. One of the major difficulties faced by Commission related to the extent, if at all, that the absolute discretion of the Judiciary in appointing experts should be controlled. 2. Presently, the situation in the criminal field is that experts are appointed at the absolute discretion of the Magistrate conducting the inquiry The proviso to Section 650(2) of Chapter 9, in view of its use of the word ‘may’ and due to the fact that apparently the Minister responsible for justice has never exercised the discretion granted to him in virtue of the said proviso, is essentially nothing more than a dead letter. 3. The term “apparently” has been underlined in that, despite efforts by the Commission to determine whether such a list has ever been drawn up, its endeavors proved futile, Indeed, the conclusion reached was that even if such a list did exist, its existence was completely superfluous, precisely because nobody was aware of its existence, let alone its contents. 4. The issue therefore had to be evaluated from two aspects. Firstly one had to understand and acknowledge that in appointing its own experts, members of the Judiciary should have as much discretion as possible. Secondly, one also had to appreciate that all those who wish to serve as experts are given access to nominations and moreover, that steps are taken in respect of those persons who are not so competent, irrespective of the trust the judiciary may have in that particular expert. 5. The Commission is, thus, proposing that an adequate balance may be struck between these two aspects to the issue by transferring the ‘powers’ regarding the appointment of experts to a special commission, hereinafter referred to as the Board, whilst at the same time leaving the members of the Judiciary with a certain amount of discretion in respect of the persons who may be appointed as experts. The Board 1. Composition lt is proposed that the Commission shall be made up of three members. One of these members shall be appointed by the Judiciary, one member shall be appointed by the Minister for Justice, and one further member by the Chamber of Advocates. 2. Tenure It is being proposed that the composition of this Board should be reviewed every two years. 3. Functions Primarily the Board shall be the sole body that shall be empowered to establish who may be appointed as a Court expert. In other words, all those persons who wish to serve as Court experts, shall have to submit an application to the Board. The Board, after duly vetting the said application, shall proceed to either accept or refuse same. Those persons whose application would have been accepted shall be included in the Registry/List of persons from amongst whom the Judiciary may appoint an expert.
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It is being suggested that any appointment made of persons not included in such a Registry/List shall be deemed, for all intents and purposes, null and void. Clearly, the Board shall have to take all necessary steps in order to inform the Judiciary of the persons included in the said list, including any updates or deletions from same. Moreover, in vetting an application made by any interested person, the Board shall proceed to accept such only ifit is satisfied that the applicant:
(a) holds professional, technical or other qualifications, including vast experience which provides sufficient evidence for competence in the claimed area of expertise.
(b) possesses proper personal qualities that inspire confidence and are compatible with their prospective role as Court expert.
Furthermore the Board shall be further empowered to monitor and remove approved persons from the said Registry/List. In other words the Board shall have the residual power to review the performance of the ‘approved’ court experts. Secondly, the members of the Judiciary shall be required to liaise with the said Board in its requests for information regarding the amount of nominations and pending nominations given to particular expert. To this effect the Board may make recommendations to the Judiciary or a member thereof in respect of any matter related to its ‘modus operandi’ in the nominations of experts, although the Judiciary shall in no way be bound by such a recommendation. The Commission maintains and hopes that the said Board shall help to achieve some of the goals set forth in the terms of reference. The terms of reference also include a request to review the instances where a reference to experts is reduced without, however, in any way prejudicing the interests of justice. In the criminal field the Commission has identified three instances where a reference to experts may be dispensed with. To this effect reference is made to Section 546 of the Criminal Code which essentially lays down that an inquiry (inquest) has to take place upon the receipt of a report, information or complaint in respect of any offences for which it shall be necessary to proceed to an inquiry (kumpilazzjoni i.e. offences which bring with them more than 6 months imprisonment). It is felt that instances which burden the courts and invariably involve the need to appoint an exert relate to theft of water, electricity and telephony. The Commission is suggesting that in these instances the situation should be revamped and to this effect it is suggesting the following:
(1) theft of water and electricity and so-called clip-on telephony fraud are created as ‘ad hoc’ offences in the respective legislations dealing with the provision of these services.
(2) These type of offences would still be punishable with more than 6 months imprisonment and jurisdiction to hear same would fall within the jurisdiction of the Court of Magistrates (Malta) as a Court of Criminal Judicature, thereby avoiding the need for an inquest to take place and the consequential appointment of experts in the course of such an inquest.
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(3) The relative legislation would also provide for the possibility of an administrative remedy prior to any Court action; provisions being included being similar to those contained in the VAT legislation and the Customs Ordinance. Such an administrative remedy would cater for the possibility of the alleged defaulter paying for any damages caused, thereby avoiding Court proceedings.
(4) Only in the event that no consensus is reached to come to a settlement as above- discussed would Court action be instituted.
(5) Only once Court action has been instituted, would the need to appoint an expert possibly arise.
(6) In the meantime and pending the decision as to whether Court action is going to be taken the corporation concerned (i.e. Water services, Enemalta or Maltacom) would have to retain the object allegedly tampered with. To this effect and in order to safeguard the interests of the alleged ‘defaulter’ in case he is ever charged in court, the said object would be photographed and sealed in the presence of the person concerned. Such photographs may be taken by the Corporation officials themselves, provided they are taken in the presence of the person concerned and provided the latter is himself given the right to take photographs himself.
Moreover, the alleged defaulter and registered consumer must have a direct say in the sealing process, possibly by being required to sign over the relative seals. This would ensure that if the object is eventually exhibited in Court, the accused would be in a position to verify that the object has not been tampered with whilst in the custody of the Corporation concerned. Another proposal the Commission would like to put forward in this respect, is that legislative measures ought to be introduced whereby the Courts may ‘ex lege’ not appoint experts if both the prosecution and defense are not contesting facts in respect of which an expert’s would be required. It is submitted that to a certain extent this practice has been accepted by our Courts. Thus, if a person is accused of falsifying the signature on a cheque and the accused is not contesting such a fact, then the appointment of an exert is usually dispensed with. However, this is merely a practice and this is why the Commission is suggesting that such a practice should be given the force of law.
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LIST OF ANNEXES Annex A Institute of Forensic Studies Annex B Statute of the Institute of Forensic Studies Annex C Association of Court Experts," Statute and Bye-Laws Annex D From Professor Alfred J Vella Annex E Memorandum; Association of Court Experts Annex F Rapport tal-Kamra tal-Periti dwar il-Hidma tal-Esperti
Gudizjarji fil-Qorti Annex G The Malta National Laboratory Annex H Dipartimenti tas-Servizzi Korrettivi, Servizz ta ' Probation Annex I Maltese Association of Social Workers Annex J Annex J Appointment of Psychologists as Court Experts
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Annex ‘A’ Appendix VIII to Council Minutes 7/99-00
Institute of Forensic Studies
1. The Institute of Forensic Studies is hereby established as an inter-Faculty institution within the University of Malta.
2. The aims of the Institute shall be: a. The teaching and the conducting of research in Forensic Sciences (including
Forensic Medicine), Criminology, related social policy issues, and similar areas of study;
b. To act as a resource centre for the provision of experts and expertise in the various fields of its activity to the Courts of Justice, such services being where feasible extended to such institutions, private organisations and individuals as the Board may from time to time detennine; and,
c. To act as an advisory body to the Govemment on matters pertaining to criminal justice.
3. The Institute shall be governed by a Board that will consist of the following: i. Chairman: Rector or his delegate; ii. Vice-Chairman: Director of the Institute; iii. A person appointed by the Council of the University; iv. A person appointed by the Senate of the University; v. Up to two representatives of the academic staff lecturing in the Institue; vi. Up to two representatives of the students registered with the Institute; vii. One representative from the Faculty Board of Medicine; viii. One representative from the Faculty Board of Law; ix. One representative from the Ministry responsible for Justice; and x. A retired Magistrate or Judge appointed by Council. The Registrar or his delegate shall act as Secretary to the Board. 4. All members of the Board, other than those appointed ex-officio, shall be appointed for a period of four years. A retiring member will be eligible for re-appointment. 5. The function of the Board shall be: a. to govern the affairs of the Institute, subject to the provisions of these statutes and of such regulations, policies or directions as may from time to time be approved by the Council and the Senate. b. to decide the policy of the Institute, and to supervise its activities and administration, and without prejudice to the generality of the foregoing, the Board may:
i. approve business plans and annual estimates of revenue and expenditure of the Institute for consideration and approval by the Council; ii. with the written concurrence of the Rector enter into agreements With third parties for funding of the Institute or of particular activities; iii. publish an annual calendar of activities;
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iv. enroll the Institute in associations of institutions sharing the aims and interests; v. propose Regulations and Bye-Laws to the Senate; vi. require from staff members of the Institute the production of reports on academic matters, including the curricula of courses of study, qualifications for admission to courses, examinations and certificates of attendance or qualifications; vii. recommend to the Council the creation or abolition of academic and non-academic posts in the Institute; viii.propose for approval to the Senate, Board of Studies and Examiners for degree and diploma courses.
6. The institute shall have a Director and Staff:
a. the Director shall be appointed from among the academic staff by the Council of the University normally for a period of four years; and, b. the staff of the Institutes shall be appointed by the University according to usual practice.
7. The duties of the Vice Chairman / Director shall be to:
a. Promote the development and implementation of the Institute’s curricular and research programmes.
b. Develop and implement the strategic plan of the Institute, c. Administer the Institute in full consultation with its members. d. Promote students’ academic and personal welfare. e. Monitor the running of tests and examinations in the Institute. f. Encourage and facilitate co-operation with other universities and outside
institutions. g. Call and chair (in lieu of the Rector) meetings of the Institute Board and
ensures that follow-up action is taken.
h. Follow consultation with the Institute’s staff and make recommendations for an adequate staff complement.
i. Ensure and facilitate the further development and training of academic and non-academic staff.
j. Discuss regularly with staff their duties and ways of improving their performance.
k. Participate at any meeting of the University congruent with the post. l. Represent the institute during official functions of the University. m. Draw up annual Institute reports. n. Prepare annual estimates of income and expenditure. o. Monitor the performance of the non-academic staff attached to the
Institute. p. Authorise the Institute’s procurement of equipment. q. Perform other duties which may be assigned by the University from time
to time.
8. The Director of Finance of the University shall be the Treasurer of the Institute.
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Annex ‘C’
ASSOCIATION OF COURT EXPERTS
STATUTE AND BYE-LAWS
1. INSTITUTIONS AND AIMS
1.1 The Association of Court Experts — Malta, hereinafter “The Association”, was established as a non-profit making organisation by the approved resolution taken by the participants at the specific meeting called for the purpose and signed by the members attending the meeting. This has taken place at the Malta Federation of Professional Bodies, Medisle Village, Alamein Road, St. Andrews on the 12"‘ June, 1997. The Association is an autonomous professional institution with the general aim of bringing together experts in the various fields that contribute substantially towards the administration of Justice by the Courts of Malta and Gozo. One major aim is to maintain the f11ll independence of experts in fulfilling their assignments, encourage and promote vital team-work where necessary, and develop their prestigious and responsible role, in an ethical manner. The Association shall in regards be committed to the provisions of this statute.
1.2 The Association shall at all times safeguard the professional
independence of its members and aim at acknowledging levels of expertise in recognition of their social responsibility. A code of professional conduct is commendable.
1.3 The Association shall endeavour to ensure that its members maintain the
highest possible standards for the collection and preservation of evidence in order that it be reliable, accurate and credible, Such expert testimony is expected to be of the highest calibre and capable of withstanding exacting scrutiny.
1.4 The Association may choose to become affiliated with international
organisations of the same character, which may contribute towards the furtherance of the aims of the Association.
1.5 The Association is to seek and maintain official recognition as the sole
body representing its membership. 2. SPECIFIC AIMS
2.1 to bring together Court Experts so that the general aims be attained; 2.2 to compile a register of practicing experts in the service of the Courts and to regularly
revise such register;
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2.3 to organise as it deems fit such general or sectional groupings to improve the quality and level of expert testimony and to discuss any particular matter affecting any groupings;
2.4 to effectively contribute towards the improvements that may be necessary in the administration of justice;
2.5 to levy such funds from among its members as may be required for the proper running of the association.
3. SECRETARIAT 3.1 The Secretariat will be located as the council may from time to time
determine. A change in the location is to be duly notified as soon as possible to all subscribed members.
4 MEMBERSHIP
4.1 Membership is open to persons who have served as court experts, and/or those
persons in possession of specialist qualifications in any field of study and who have been practising in any particular area of activity for a number of years as the council may determine.
4.2 Members shall be such persons who have earned a recognised qualification in the speciality they practise and/or years of experience in the respective field of practice as the council may determine.
4.3 Every member shall pay a membership fee as determined by council and approved at a General Meeting. Fees shall be due initially at the first General Meeting and as approved at the same meeting. Fees should later fall due on the first day of January every year.
4.4 Applications for membership shall be addressed to the Secretary, and are to indicate the personal data together with the qualifications acquired in the field of professional practice and years of experience in the area of practice.
4.5 All applications received shall be produced by the Secretary for approval at the earliest Council Meeting.
4.6 When any application for membership is rejected by the Council the applicant may appeal to the general meeting. The appeal will then be taken up at the first scheduled or Extraordinary General Meeting.
4.7 Members shall not be responsible for liabilities incurred by the Association. 4.8 All members shall have vested voting rights.
5 GOVERNING BODY 5.1 The affairs of the Association shall be managed by the Council. The
Council may exercise such powers as the Association so empowers it by statute and which by law or by statutes are not entrusted to it except through a General Meeting.
5.2 All due records of all financial transactions shall be kept and endorse as Council may from time to time determine.
5.3 Any member of Council may have access to the financial records at any time and register with Council any observations or certification within a reasonable time.
5.4 Every fully subscribed member shall be duly provided with a copy of this statute, and every member is obliged to ensure its possession. No
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member shall be absolved from not observing the provisions of this statute or of any of the alterations that may from time to time be made.
5.5 Any member whose membership is to be terminated shall be entitled to the reason for the termination. Such member shall have the right to defend his/her case at a pre-determined sitting of Council called for the purpose. Such member shall have the right to be assisted in the defence and produce witnesses as necessary.
5.6 If Council is unanimously satisfied that no further hearings are deemed necessary, Council may decide the issue by a majority of votes of its members present.
5.7 Any member whose membership is terminated on a decision of the Council may appeal against the decision to the General Meeting. Such an appeal shall be deliberated at the first scheduled or Extraordinary General Meeting.
6 COUNCIL OF THE ASSOCIATION
6.1 Council shall consist of seven (7) members. 6.2 The Officers of the Council shall be a President/Chairperson, Vice president, a
Secretary and a Treasurer. 6.3 Officers and members of the Council shall hold office in an honorary capacity
and shall not be personally responsible for any liability of the Association. 6.4 The above mentioned officers and the other members of Council shall in the first
instance be elected at the first General Meeting called for the purpose, and subsequently by postal ballot from among fully subscribed members.
6.5 All the members of Council shall hold office for two years. The President can only hold office for two consecutive terms. Any of the out-going members of Council may seek re-election.
6.6 The President may only be removed from office by majority vote taken at an ‘ad hoc’ General Meeting.
7.0 ELECTION OF COUNCIL
7.1 All members are eligible for election to the Council both as officers or as
members. 7.2 The President shall be elected by a direct vote cast by the members, after a
due proposal, and secondment, and on registration of acceptance of the proposed member.
7.3 The remaining officers and members of the Council shall be elected by a direct vote, and must be duly proposed and seconded, and their acceptance of nomination must be registered.
7.4 The Office of Vice-President, Secretary and Treasurer shall be assigned at the first Council Meeting following election.
7.5 The Secretary shall not less than thirty days prior to the holding of each Biennial General Meeting inform members that nominations for vacant positions of Council will be received.
7.6 Nominations of candidates for elections shall in the first instance be received in writing. The Council shall appoint an Electoral Commission appointed by Council from amongst members not being members of Council, and who are not standing for election.
7.7 Nominations of candidates for elections to fill the six vacancies on council shall be in writing and shall be received by the Electoral Commission,
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formed of three members appointed by the Biennial General Meeting, within two weeks of the date of call for nominations by the Secretary.
7.8 Nomination forms shall be sent to the Electoral Commission by post addressed as indicated on the nomination forms. The forms shall be signed by two fully subscribed members. The nominated member shall sign a declaration of the willingness to stand for election and give a brief account of his activities related to the Association.
7.9 Nominations for Council officers and members other than the President shall be received concurrently.
7.10 Elections shall be held within two weeks from the closing date for nominations.
7.11 Every fully subscribed member is entitled to receive and to cast a non- transferable vote against each and every candidate standing for election.
7.12 Every ballot paper shall carry the signature of at least two of the electoral 7.13 The Electoral Commission shall give due notice to all members of the
date, time and place determined by them for the sorting and counting of votes at which all members are entitled to attend.
7.14 Voting papers shall be in such form as the Council may determine but must at all times show the number of vacancies and positions to be filled. The names of the candidates and those of the members nominating them must also be indicated. Voting instructions should also be shown as may be necessary.
7.15 All voting papers must be received by the Electoral Commission not less than fourteen day before the Biennial General Meeting, in default of which they shall be treated as invalid.
7.16 Candidates who receive the highest number of votes shall be elected. The result of the ballot shall be circulated to members before the Biennial General Meeting, by the Electoral Commission.
7.17 In the event of an equality of votes for the position of President or member on Council, one or more secret ballots at which only such candidates shall compete, shall be taken at the General Meeting. Only fully subscribed members attending the meeting shall be entitle to vote.
7.18 The newly elected Council shall assume office following the official declaration of the results by the Electoral Commission, and shall hold its first meeting not later than 10 day after being elected.
7.19 The position of any member of Council shall be declared vacant if: a) the member submits a formal letter of resignation; b) a member is absent from the meetings of the Council for six months Without due justification acceptable to Council; c) a member ceases as member of the Association; d) a member is removed in terms of the provisions of this Statute.
7.20 Association may remove from office any member of the Council before the expiration of his period of office only if a formal motion is presented and notified to members. Removal from office shall only be effected if the motion is carried by a two thirds majority of members voting at a General Meeting.
7.21 When a vacancy on Council occurs is between elections, the candidates who obtained the highest number of votes among the non-elected candidates in the previous ballot shall be declared elected to the Council.
7.22 If a vacancy from amongst the officers of the Council occurs, the Council may elect one of its own members to fill the vacancy, and the provisions of the above section (7.20) shall also apply.
7.23 If the vacancy cannot be filled in accordance with the above provisions (7.20 and 7.21) a fresh ballot shall be called provided that the Biennial
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General Meeting does not fall due within three months from the date of the occurrence of the vacancy.
7.24 Any member of Council elected in terms of the above provisions (7.20, 7.21 and 7.22) shall hold office until the election of the next council.
8.0 PROCEEDINGS OF THE COUNCIL
8.1 The President of the Council shall convene the Council within two weeks of his election and shall direct the Secretary to call the meeting with a proposed agenda.
8.2 The meeting shall meet at least quarterly, and at any time as it deems fit. Two or more members of Council may request the President to call an unscheduled meeting provided they submit in writing to the Secretary the reason for their request. The President shall call the requested meeting within two weeks from the receipt of the request.
8.3 All decisions taken by Council shall be carried by a majority of votes of all the members present. In the event of an equality of votes, the person chairing the meeting shall have a second or casting vote.
8.4 The quorum for the transaction of business of the Council shall be not less than four officers and members of Council.
8.5 The President or in his absence the Vice President shall preside over all meetings of Council. If at any time either of these officers are absent, the other members of Council may choose one of themselves to chair that meeting.
8.6 Any resolution or decision taken by Council shall in all instance be valid provided Council has been convened in terms of this statute.
8.7 The Council shall keep accurate and proper minutes of every meeting to be drawn by the Secretary, be duly approved by Council, and signed by the Chairperson and Secretary at the time they are approved.
8.8 The Council may delegate any of its own members or any member/s of the Association to conduct on its behalf its business so delegated.
8.9 Any member or members so delegated shall in the exercise of their duties regarding their assignment conform to any directives approved by Council for the purpose. Whenever such members are so entrusted they shall have the same voting rights as if they were officers or members of Council, but solely regarding their specified assignment.
8.10 No resolution or decision taken by any group within the Association shall become valid unless it is ratified by Council.
8.11 Council may as it deems fit nominate members to specialist committees and a member of Council to chair and liaise with such committee.
8.12 The Council shall be empowered to appoint and person/s as co-opted member/s of Council for any purpose and duration as deemed necessary. Co-opted member/s shall be required to attend Council meetings and shall have full voting rights solely in relation to matters relating to the matter requiring their co-option.
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9. GENERAL MEETINGS 9.1 Every fully subscribed member shall be vested with the right of a single
non- transferable vote. 9.2 The Association shall hold a statutory annual General Meeting. The
venue for such meeting shall be held at such place and time as Council may determine. The holding of such a meeting shall be duly notified to all subscribed members not less than two weeks before it falls due.
9.3 In exceptional circumstances, the statutory annual General Meeting may be held after the lapse of one year, but not later than the lapse of 13 months.
9.4 Council may whenever it deems necessary call an Extraordinary General Meeting by giving due notice to all members two weeks before the date set for the meeting. An agenda for the meeting has to be notified accordingly.
9.5 The Council shall at the request in writing by not less than ten of the members of the Association convene within one month and Extraordinary General Meeting called for the purpose.
9.6 The formal request in writing shall state the objective/s for such a meeting and shall be duly signed by all requistioners and placed with the Secretary of Council who is to acknowledge the receipt of the request.
9.7 Notice of any Extraordinary General Meeting shall be sent in writing to all the members two weeks before the date set for the meeting. In exceptional circumstances, notice of such meetings shall be given through the public media. When by decision of Council urgent circumstances arise, an Extraordinary General Meeting may be called. In such instances, a three days’ notice shall be sufficient.
9.8 Failure of receipt of any such notice by any member shall not invalidate any or all of the proceedings at the meeting.
9.9 Every notice of a General meeting, circulated or published, shall indicate the date, place and the time of the meeting, as well as the agenda for the meeting.
9.10 Any member wishing to propose a motion for scheduled General Meeting must notify the Secretary in writing of such a motion not less than ten days before the date set for the meeting. Any such motion has to be proposed by a mover and a seconder both being fully subscribed members of the Association.
10. PROCEEDINGS AT GENERAL MEETING 10.1 No business shall be transacted at and General Meeting unless a
quorum is present. The quorum for any General Meeting is twenty five per cent 25% of as fully subscribed members.
10.2 If within thirty minutes of the time appointed for a General Meeting a quorum is not formed the meeting shall be dissolved and another date is decided upon by Council.
10.3 If at the subsequent General Meeting a quorum is not formed within thirty minutes, the President may decide to proceed with the business of the meeting.
10.4 The President shall preside over all General Meetings as the chairperson but in his absence the Vice President must assume the chair.
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10.5 If, in the exceptional circumstances, neither the President nor the Vice President are present to chair the meeting any other member of Council may be elected as chairperson for the meeting, provided a quorum has been formed.
10.6 The chairperson at any regularly convened meeting may adjourn the meeting to a subsequent date at a time and place approved at the meeting. Only the business that would lawfully have been transacted at the meeting from which the adjournment took place may be transacted at the adjourned meeting.
10.7 Any adjourned meeting shall, unless special circumstances detennine otherwise, be duly notified to members within a reasonable time. It shall not be necessary to give a notice of the business to be transacted at any adjoumed meeting.
10.8 A resolution put to the vote at any General Meeting shall (subject as hereinafter provided) be decided by a show of hands. A secret vote may be demanded in any resolution (other than a resolution for adjournment) be any two members in person. The chairperson shall proceed forthwith to direct the manner in which such vote is taken. The meeting shall elect three tellers from among the members present at the meeting. The chairperson shall declare the result of any secret vote, which shall be recorded in the minutes of that meeting.
11. VOTES OF MEMBERS
11.1 At any General Meeting or any postal ballot regulated by this statute, every fully subscribed member vested with voting rights shall have a single non-transferable vote.
11.2 At any General Meeting, the chairperson shall, in the case of equality of votes, be entitled to a casting vote.
11.3 Any objection as to the validity of any vote or votes shall be raised only at the particular meeting and before any result of the voting is declared by the chairperson. The chairperson’s decision at the time shall be final and conclusive.
12. ACCOUNTS AND INVESTMENTS 12.1 The Council may hold and invest any monies belonging to the
Association as Council may from time to time determine. 12.2 The Council shall ensure that proper books of accounts are kept
by the Treasurer. Such accounts shall show: a) all sums of money received and expended b) all receipts issued and those received for monies expended c) proper records of assets and liabilities d) clear records of sales and purchases e) all correspondence relating to any transaction involving the financial
affairs ofthe Association.
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The Council may from time to time establish the limit of particular expenditure effected by the Treasurer. Formal approval of the Council is required for expenditure exceeding the established limit. 12.3 The Council shall at the Annual General Meeting present audited
account for the period of its administration. 12.4 The Council shall, at an appropriate time, appoint a
professionally certified public auditor to audit the accounts in time before the Annual General Meeting.
12.5 The books of accounts of the Association shall at all times be open to inspection by any fully subscribed member after a Written request is made to the Council.
12.6 Any two members may be written request to the Council require the presence of the appointed auditor to attend the Annual General Meeting when the audited accounts are to be approved.
13. NOTICES 13.1 All notices or documents may be served by the Association on
any member personally or by mail directed to the address registered with the Association.
13.2 The Council may, as may be required, issues public notices in the media.
14. LEGAL AND JUDICIAL REPRESENTATION 14.1 In administrative matters, the President and the Secretary jointly
shall have the legal and judicial representation of the Association and they may sue and be sued on behalf of the Association; provided that for all financial matters, the President and the Treasurer jointly shall have the legal and judicial representation of the Association and they may sue and be sued on behalf of the Association.
15. DISSOLUTION AND DISTRIBUTION OF ASSETS 15.1 The Association may be dissolved only upon an unanimous resolution taken by the Council and approved by two thirds of the members present and voting at the Extra Ordinary General Meeting called for the purpose. 15.2 All assets of the Association held at the time of the dissolution shall be passed to charitable organisation approved at the same meeting.
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Annex ‘D’
From Professor Alfred J Vella
I write this note in response to your request to put in writing some points that emerged during discussion in a recent meeting I had, on behalf of the Association of Court Experts, with your commission, Please note that I have agreed this document with Professor M. Therese Camilleri Podesta’ who is Secretary of the Association. We discern certain procedural problems that, if addressed, can significantly improve the ‘work conditions’ of court experts and thus possibly serve to entice more competent persons towards serving the system, thus ultimately enhancing the local judicial process. (1) Target date for submission of report. It is agreed that a time period for submission of a forensic report that is not excessively long has to be established and this in the interests of justice. Demanding a report in two weeks, as sometimes happens (but infrequently), conduces towards slipshod work and should be resisted (except by experts who are blessed with plenty of free time). For most cases, a report can probably be submitted within eight weeks. A significantly longer period may required for more complicated cases. Occasionally, for example, key witnesses of fact are hospitalized and cannot be interviewed for several weeks. Thus, it is desirable to increase somewhat the current period for submission and to allow, formally, for the extension of the limit in cases of necessity. (2) Method of submission of report At the moment, the submission of a report requires several visits to the court house as indicated below:
(a) A visit to Mr. F. Galea‘s office during which the repon is deposited for registration and a tariff is entered on the payment voucher;
(b) A second visit to Mr. Galea’s office to collect report and associated payment voucher;
(c) A visit to the magistrate’s private office (or court room) in order to submit the report under oath and to obtain the magistrate’s signature on the voucher: this can be a fruitful visit but not always, depending on whether the magistrate is available and willing to accept the report at that time (and in that place);
(d) A visit to the Accounts Office for submission of payment voucher.
In addition to these four (or more) separate visits, other attendances may be necessary in connection with any given report when this becomes part of a court case (e.g. in a ‘kumpilazjoni'). Even here, the situation appears to admit considerable improvement. The court expert is called to the witness stand and in the majority of cases the only action that is required of her/him is acknowledgement of authorship of report. It appears that a signed report and a previous submission on oath of same are not sufficient at local law!
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When one considers that additional (and certainly necessary) attendances of experts for cross-examination by defence lawyers are also generally involved, it becomes easily clear why the system has to be made more ‘client-friendly’ towards the expert. We are of the opinion that a signed report submitted under oath to the Court Registrar or some other designated officer should make possible a single-stop operation during which the document is formally transferred from expert to judicial system. This operation should also include acceptance by the court system of the payment voucher. Incidentally, a dated receipt should be supplied to the expert, as proof of submission of report and voucher and experts should not continue to rely on the goodwill of persons working in the system. We are also of the opinion that a court expert should not be required to attend the court room simply to acknowledge, under oath (for a second time), ownership of a signed report forming part of the process. A court expert should be asked to attend to judicial proceedings only if cross-examination is required. (3) Giving evidence during trial by jury We understand that a certain waiting time has to be suffered by witnesses (be they expert or otherwise) in anticipation to giving evidence during trial by jury. The lack of facilities at the law courts (e.g. of a waiting room equipped with a few tables and chairs) precludes expert witnesses from doing any useful work during waiting time and instead force complete sterility on this time which, as a result, stretches longer. Not infrequently, one is called to testify and having spent hours in the corridor waiting for his or her turn is then brusquely informed to attend again ‘on the next day’ or ‘after the lunch break’. We understand that attomey-general’s lawyers derive no pleasure from this infliction on professional colleagues but we fail to see why, in the era of the mobile phone, experts are not summoned via this communication mode, say 30 or 45 minutes before they are actually and truly required. A competent prosecutor can easily estimate, half an hour ahead of time, that a particular testimony will be required. This procedure will give those experts, who would have received prior notice to remain on call on some particular day, enough time to arrive at the courts without causing undue delay to the proceedings. (4) Matters connected to the tariff I understand that some three to four years ago there was a move towards a new system of tariffs for court experts. The Ministry of Justice had produced a document outlining the revised drafts tariffs which document appears to have remained in abeyance. The Association had responded formally to the document by memo which was discussed among association council members. A copy of this memorandum is attached to this letter: this memo has to be read in conjunction with the Ministry’s document. At a meeting with the Minister on the matter, we had informed him that we were against a system of flat tariffs, at least, for certain categories of court work. This was on the basis that the nature of work involved in certain situations warranted a more flexible approach. At an association council meeting, we had agreed that for this type of work (only), the tariff should be valorised on the basis of a formula that was normally supported on three tiers: payment would be established according to the tier level which matched most closely the burden of the assignment. The expert would agree the match with the court official responsible for raising the tariff. During this meeting, council members had approved a document that outlines the philosophy of such formula-payment which I am reproducing below (with slight modification) for your infonnation.
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“Tariff proposals We agree that tariffs payable to court forensic experts should be simple to compute in order that such Work will not be a severe burden on the limited human resources base at the law courts. However, even the simplest computational devices should ideally be formalised on the basis of some manifest “formula” which serves to rationalise the quantum of the tariff in a transparent manner. Basis of Formula
1. Separate the reimbursement of expenses from the professional fee; where appropriate, VAT will be raised (as in cturent practice). Typical expenses would include: typing fees and travelling expenses; use of specialised materials( e.g. disposable protective clothing; use of test kits). Payment for visiting and examining the scene of the crime/accident (“access”) could be absorbed in the professional fee. 2. For estimating the professional fee a.nd only if the nature of the work demands it, establish a 3-tier system which will be used for assessing the level of remuneration for assignments involving different degrees of involvement and effort on the part of the expert thus: Tier 1 (lowest fee); Tier 2 (intennediate fee); Tier 3 (highest fee) A structure based on the values: LM x (Tier 1); LM 1.5 x (Tier 2); and LM 2 x (Tier 3) may be appropriate although certain unusually difficult assignments may involve commensurate compensation which is substantially higher than LM 2x. Such situations will be dealt with on an ad hoe basis (as is also current practice)”
We still endorse this position regarding court tariffs. (5) Other matters Finally, I would also like to record our concern regarding the need to vet with rigour the personal and professional qualifications of people who are entrusted with serving the courts as experts. We feel that a more formal mechanism should be established which ensures that persons who Want to be considered for appointment as experts are properly screened by a special committee appointed for the purpose. The committee shall establish whether such persons possess: (a) proper personal qualities that inspire confidence and are compatible with their prospective role as court expert (e.g. clean police conduct; positive personal references from reputable sources known to the judiciary etc.) and (b) professional, technical or other qualifications which provide evidence for competence in the claimed area of expertise. The committee would be required to review its position regarding ‘approved’ court experts from time to time.
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Annex ‘E’
Memorandum Submitted by the Association ofCourt Experts to the Ministry of Justice on the Draft Tariff of
Court Fees payable to Experts and Referees serving the Criminal Courts of Justice
1) This Memorandum is being submitted in a spirit of collaboration while bearing in mind that as procedures in some areas will help to reduce the “law’s delay”, the service given by experts is given fair and due acknowledgement.
2) Some of these recommendations may call for minor amendments to the provision of the Law of Criminal Procedure. The Association is confident that Justice can thus be better served by directly or indirectly raising the standards of expert evidence. The Association strongly believes that the service requested by the Courts from a “Professional” should be evaluated according to the following three categories:
a) Witness of fact: any person, including “Professionals” should be granted out-of-pocket expenses whenever they are summoned and attend court. As such the person is considered as a member of the general public. b) Professional Witness: any person who gives evidence based on the possesses professional knowledge relating to the matter at hand, which was acquired in the course of professional practice, even though the witness is not a court appointed Expert. c) Expert Witness: any person so appointed by the Court in virtue of recognized qualifications, skills and experience, and from Whom the Court demands an opinion on the evidence at hand.
3) Professional and expert reports required or demanded by the Courts should be acceptable as swom evidence, Without the need of their being attested to in open court. These reports are to be made available by the Court both to the prosecution and to the defence. The witness may then be summoned if either of the parties so request. Such a procedure is bound to be a cost-saving and also should expedite procedures besides causing less frustration for all the parties involved.
a) As a corollary, it is to be stressed that serious efforts should be made for better organisation of appointed hearings especially when expert evidence is to be presented. Whenever a case is adjounied only the witnesses who are actually required to present their evidence should be summoned. b) Attendance and the giving of evidence by professional and expert witnesses at trials by jury must carry a fee set on a per diem basis. Appointed summons by the Court should be adhered to unless special circumstances determine otherwise. c) Provision should be made for the acknowledgement and related remuneration whenever a “Professional” is required to assist the Police even when a prosecution.
4) Translation: no distinction should be made between languages. When the translation is one of a technical nature the assistance given to the translator by a competent technical person should be financially acknowledged. 5) Valuation: while a minimum should be set the maximum must always be related to the quantification of the subject matter. The appropriate fee is to include the fee for the report and court attendance, but does not include the expenses incurred for the carrying out the reference. Attendance and additional sittings of the court, or additional inspections approved by the court shall carry a separate fee.
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6) Inspecting explosive material: justifiable consideration should be seriously taken into account in compensation for the level of danger and the risks inherent in the case. Whenever tests need to be carried out the additional burden of risk must be separately compensated. Such fees include that due for the submission of the relative report/s. 7) Inspecting electrical and mechanical equipment: the general principles set in 6) above apply, but it is accepted that the risks involved are generally less. 8) Technical assistance to magistrates (without written report): the fee should be calculated per hour, and an additional fee is justified whenever technical equipment is used. 9) Histological examination and report: a standard fee per case should be set irrespective of the number of sections examined. (a percentage deduction may be made if the preparation of the section/s is carried out in a Government laboratory). 10) Levee du corps with report: this should carry a standard fee, together with an hourly remuneration for time spent on the scene beyond one hour. The fee paid must be doubled when the work entailed is to be carried out of standard work hours. 11) Additional information: Written submissions should be taxed at twice the fee for verbal submissions, with the addition of a fee for attendance at court. 12) Tests in a laboratory: the wide range of tests that may be indicated and the use of the available advanced equipment cannot be lumped into one or two categories. The forensic scientist needs to proceed with his investigation stepwise, that he may correctly arrive at the solution of the problem. The time factor and level of expertise are a very integral part of such investigation. It is felt that the relative fees should be based on the arbitrio bani viri. (When such tests are carried out in a govemment laboratory a percentage deduction may be made.) 13) Report of forensic reference: a minimum fee to be established but the actual fee should be agreed to depending on the nature of the reference. 14) Identification of the corps to the pathologist/s, perfonnance of autopsy, drawing out of repon and death certificate: a set fee per case to be established, but allowance should be made for exceptional cases. Attendance at court should carry an additional fee. Exhumation by its own very exceptional occurrence, is to be considered separately bearing in mind the special circumstances and risks. Attendance at the autopsy by forensic science experts to assist the pathologists and to withdraw specimens for analysis to be rated per hour. 15) “Dissecting a corpse": the fee paid to the mortuary attendant/technician to prepare the corpse for autopsy and subsequent disposal, as well as for assistance during the autopsy. Two such attendants are required at each autopsy. 16) Medical examination by a medical practitioner/specialist at the specific request of the court: the due fee must take into proper account of the number of sessions that may have to be held before the report may be completed. 17) Interpreters: the fee per hour should be inclusive of waiting time. 18) Forged documents: the basic fee for each document might be standardised and additional compensation made when special tests need to be carried out.
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19) Ballistics: the fee should be assigned for the examination and testing of the firearm with additional compensation for the examination of ammunition, bullets and cartridges including the submission of the report. Attendance at the scene or at the autopsy is to carry a separate fee charged per hour. 20&21) Photography: a fee per hour should be paid to a private photographer taking into account the use of the necessary equipment and time and materials for the production of the photographs. The cost per photograph should be based on current commercial rates. Relevant photographs are to be made available to court experts with the court’s approval. 22) Taking of fingerprints Etc: no remarks 23) Fingerprints, footprints, etc. (comparative examination and reports): account should be taken whenever extra materials and techniques are required, such as the making of mould and photo or video recording. 24) Transcription: the fee should carry an extra consideration if the transcript is typed. 25) Reference to referee: a fee per hour should be paid per sitting. 26) Transportation of putretied corpse: the fee is to be paid to each of a minimum of two attendants. 27) Inspection in faciem loci: the fee should be set per hour of attendance and taxed doubly out of normal working hours. All other additional work and transport to be taxed separately. 28) Opinion of a technical or legal nature: the complexities of such cases is not reflected in the range of fees that may be taxed and as proposed. 29) Not acceptable- a fee for attendance should equally be paid. 30) Drawing up of sketch: the word “sketch” is to be understood literally and excludes a drawing or an architect’s plan. 31) Correspondence: the fee should not be less than the set fee for the leading profession. 32) Destruction of drugs: the fee should be set per exhibit. 33) To be set in terms of para 12 above. 34) Not acceptable — the relative remarks set above are to apply. 35) Any other fees: no maximum limit should be set, and if necessary an arbiter other than the Registrar may be established. 36) Remarks are offered. 37) No remarks are offered provided this does not include valuation of stolen items. 38) No remarks with the provision of para 37 above. 39) This should be amended in terms of the various submissions set in the preceding paragraphs.
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Annex ‘F’
RAPPORT TAL-KAMRA TAL-PERITI DWAR IL-HIDMA TAL-ESPERTI GUDIZJARJI FIL-QORTI
1. Kamra tal-Periti qieghda tipprezenta clan ir-rapport bhala kontribut taghha ghal process
konsultaltiv illi qieghda tmexxi 1-Kummissjoni ghal-Hatra ta Esperli Gudizzjarji. 2. L-ewwelnett qieghed jigi rilevat illi skond l-Att XIV tal-1996, Artikolu 18 (2) hadd ma jista
jsejjah lilu nnifsu ‘perit’ sakemm ma jkollux i1-kwalifiki skond dana l-Att, w ghalhekk forsi issa huwa 1-kaz illi tigi applikata it-terminologija korretta w il-kliem ‘perit tekniku’ ma jibqghux jintuzaw u minflokom jintuzaw il-kliem ‘espert tekniku’ jew ‘espert gudizzjarju’.
3. It-tieni nett ghandu jigi apprezzat illi, ghad-differenza tal-esperti legali illi (fil- maggioranza
assoluta taghhom) ghandhom l-ufficcju fil-Belt Valletta jew jipprattikaw kuljum fil-Qorti, l-esperti teknici (u mhux biss il-Periti) jidhlu fil- Belt Valletta apposta sabiex jaqdu d-doveri taghhom fil-Qorti. Fil-fatt hafna Periti jirrifiutaw Xoghol ta’ esperti gudizjarji ghaliex jsibuha ta’ xkiel u skumdita illi joqghodu jidhlu fil-Qorti jistennew sieghat shah biex jew seduti ma jsirux inkella ma j sir kwazi xejn fihom.
4. L-istess jghodd ukoll sa certu punt, fil-kaz meta espert jintalab jirrapporta dwar l- andament tal-
perizja li jkollu f‘idejh. 5. Biex titjib fis-sistema li wiehed jispera li jinhareg bhala rizultat tax-xoghol ta’ dina I-
Kummissjoni, jista jkun hemm numru akbar ta’ esperti li jaccettaw perizji, u dana jwassal sabiex ir-rapporti teknici jitlestew fi zmien qasir, ghaliex ix- xoghol jinfirex fuq numru akbar ta’ esperti.
6. Li jsegwu issa huma xi aspetti illi l-Kamra qieghda toffri l-kummenti u s- suggerimenti taghha:
6.1 SPAZJU
Li hemm nuqqas kbir ta’ spazju adegwat fejn jistghu jsiru l-perizji huwa maghruf minn kulhadd. M’hijiex kwistjoni biss ta dekor izda ta’ htiega ta spazju fejn, almenu zgur fil-kaz tal-Periti, ikun hemm dokumenti bhal pjanti u dizinji illi jkunu jridu jinfethu biex jigu fizaminati u diskussi. Zgur illi fuq xi bank fil-kuriduri m‘huWiex il-lok fejn isir il-perizji. ls-sitwazzjoni qieghda tigi aggravata billi certi awli qeghdin jinzammu imsakkra anke jekk ma jkunux qeghdin jinzammu msakkra anke jekk ma jkunux qeghdin jinstemghu kawzi fihom. Ghandu jinstab spazju adegwat fejn l-esperti jistghu izommu seduti fil-kwiet u minghajr xkiel. Spazju iehor bzonnjuz huwa ‘lockers’ fejn l-espert jista jhalli processi, dokumenti w oggetti ohra bhal per ezempju l-‘brief case '. Minhabba li m’helnmx dawn il-facilitajiet, l-esperti gieli jitghabbew bi piz zejjed bla bzonn,. Jista jkun hemm ukoll ir-riskju ghas-sigurta peress illi l-periti jkollhom joqghodu jgorru il-processi maghhom fil-karozza sakemm jaqdu xoghol iehor professjonali kemm qabel kif ukoll wara s-seduti. Fl-antik kien hemm kasserrizzi tal-esperti teknici fil-Qorti. Jekk illum instab spazju mnejn Wiehed jiehu ‘Pepsi’ ghandu jinstab spazju ghal dawna l-kasserizzi, u b’hekk jigi minimizzat ukoll il-giri bla bzonn ta’ processi. 6.2 INKARIGU L-inkarigu tal-espert tekniku ghandujkun preciz u limitat kemm jista halli ma jkunx hcmm telf ta’ hin fil-gbir tal-provi. Huwa fatt illi I- aktar il jintilef zmien huwa fis-seduti u gbir ta’ provi. Gieli jkun il-kaz illi access u xi zewg seduti jkunu bizzejjed sabiex l-espert ikun edott mil-fatti w ikun Fposizzjoni illi jirrelata fuq il-materja teknika. Illum, bl-assistenti gudizzjarji, il-massa
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tal-provi u xhieda tingabar quddiemhom. L-espert jista jew jattendi ghal xi seduta/i fejn jkun mehtieg li jsaqsi u jisma xi xhieda mportanti, jew inkella, wara l-provi jingabru, i1-process jigi rimess ill-espert biex jaqdi l-inkarigu tieghu, kif diga qieghed isir f’xi Awli. 6.3 SEDUTI Qieghed jigi suggerit illi meta jkun hemm bzonn ta’ nomina ta’ espert tekniku, tiddahhal sistema ta fissar minn qabel tas-seduti, bhalma jsir fl-arbitraggi il-partijiet jintalbu jiddikjaraw kemm ikollom bzonn ta’ seduti biex jezawrixxu l-provi taghhom w l-espert jiffissa n-numru rikjest ta’ seduti. Dana jista jsir billi l-espert jintalab jattendi fl-Awla meta jkun ser jinghata l-inkarigu (u dana jista jservi wkoll biex l-espert jkun jista javza lill-Qorti mill-ewwel f’kaz li jkollu jirrinunzja) w hemmhekk jigi fissat il-programm ta’ seduti. B’hekk il-Qorti jkollha idea tat-tul tal-perizja mill-ewwel u jigu evitati differimenti bla bzonn. F‘kaz ta htiega ta aktar seduti/accessi, isiru r-rikorsi opportunii Ghandu jsir kull sforz sabiex is-sistema prezemi tas-seduti tigi razzjonalizzata u jinqata d-dewmien minhabba nuqqas ta’ attendenza ta xhieda, partijiet jew difensuri. 6.4 NOTIFIKI Hemm bzonn ta’ titjib immens fis-sistema tan-notifikar lill-esperti. Espert gieli jsir jaf bin-nomina ferm qabel ma tasallu n-notifika. Mil-banda l-ohra, jekk hadd mill-partijiet ma jinkariga ruhu biex javzah, mhux darba jew tnejn illi jghaddu zewg differimenti mid-data tan-nomina, qabel mal-espert isir jaf bl-inkarigu tieghu. Is-suggeriment maghmul fuq (seduti) jghin biex jinqata dan id-dewmien, (dejjem jekk in-notifika biex l-espert jattendi ghat-tfassil tal-programm ta’ seduti tasallu malajr). Ma dan wiehed ghandu jsemmi wkoll dewmien fit-tahrik ta’ xhieda illi ta’ spiss jitfa il-programm ta gbir tal-provi lura sew. 6.5 PROCESSI Minhabba illi mad-dokumenti esebiti gieli jkun hemm ritratti u/jew pjanti kbar li majkunx possibbli illi jigu ikkupjati, ikun mehtieg illi l-espert tekniku jirtira l-process originali. Hawnhekk jista jinholoq ftit tad-dewmien sakemm isir spoll gdid qabel ma jista jigi rtirat il-processi. Qieghed jigi suggerit illi, fis-sistema proposta fuq (seduti) bejn id-decizjoni tal-Qorti biex tahtar espert tekniku u l-udjenza li jmiss meta jkun serjitfassal il-programm, li spoll jitlesta halli l-espert jirtira ‘seduta stante’ jew li spoll inkella l-process, skond il-kaz. 6.6 GHASES Dina tolqot partikolarment perizji fl-Awli Inferjuri u tal-Kriminal, fejn gieli qieghed ikun difficli illi l-espert tekniku jikkomunika mal-Ispettur responsabbli fl-Ghassa sabiex il-perizji jimxu. Mezz effettiv jista jkun I-uzu lal-‘e-mail’. Fl-ufficcju tal-Ghases ghandu jkun hemm ufficjal responsabbli ghal-komunikazzjoni mal-espert tekniku jekk l-Ispettur majkunx jista jzomm kuntatt effettiv huwa stess. 6.7 AWLA Huwa essenzjali illi l-gudikant ikun infurmat bil-mod kif tkun miexja s-seduta. Pero dana ma ghandux ifisser illi l-espert tekniku ghandu joqghod jattendi fl-Awla kull darba halli jirrapporta b’dak li jkun qed isir. Qieghed jigi suggcrit illi l-esperti teknici jinghataw il-facilita ta’ l-access ghall-lista tal-kawzi b’mod elettroniku sabiex ikunu jistghu idahhlu it-rapport taghhom dwar kull perizja, u b‘hekk il-gudikant ikun aggornat bil-progress jew meno tal-perizja. L-espert ghandu jattendi biss Pkaz ta’ konferma ta’ rapport, eskussjoni jew cirkostanza partikolari illi tehtieg il-presenza tieghu. B’hekk jinqata wkoll hafna telf ta’ zmien ghall-esperti. Hemm metodi sabiex l-access ikun kontrollat u limitat ghall-uzu imsemmi u ma jkunx hemm riskju ta sigurta ghall-computer tal-Awla.
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6.8 INTAXXAR Qieghed jigi suggerit illi l-intaxxar tad-dritt tal-esperti teknici jigi intaxxat minn ufficjali tal-Qorti b’inkarigu specifiku minflok illi jithalla ghad-deputat tal-Awla. Dana mhux ghaliex id-deputati m’humiex kapaci jintaxxaw izda sabiex tigi assikurata l-uniformita fl-intaxxar. Dina s-sistema kienet tintuza sa ftit taz-zmien ilu. Huwa rakkomandabbli ukoll illi l-espert tintbghatlu kopja tat-taxxa sabiex ikun jaf id-dritt tieghu kemm hu qabel ma jersqu ghal hlas il-partijiet. 6.9 REGISTRU Ghandu jinzamm registru tal-Periti illi ghandhom l-esperjenza u/jew huma lesti illi jiehdu perizji, anke possibilment bil-qasam ta’ specjalizzazjoni li jistajkun intiz fih il-Perit. B’hekk il-gudikant ikun iggwidat ahjar fl-ghazla tieghu tal-Perit bhala espert tekniku. Qieghed jigi suggerit illi jigu organizzati korsijiet qosra minn zmien ghall-iehor, b’kollaborazzjoni bejn il-Ministeru w il-Kamra tal-Periti, sabiex il-Periti li jkunu mhajjra jaccettaw perizji jkunu ppreparati ahjar sa mill-bidu nett, kif ghandhom jaqdu l-inkarigu taghhom. Ir-Registru jigi aggornat regolarment, wara li ssir s-sejha fil-Gazzetta tal-Gvern skond ir-regolamenti. 7. Dawn huma uhud mill-pumti illi l-Kamra thoss illi huma mportanti illi jigu kkunsidrati u, fejn hemm bzonn, isir it-tibdil mehtieg sabiex is-sistema titjieb ghall-ahjar amministrazzjoni tal-gustizzja. Ghal dan il-Kamra, bhal dejjem, toffri l-ghajnuna taghha kollha kif u fejn mehtieg. 8. Nispera illi l-kontenut ta’ dan ir-rapport ikun utli ghall-Kummissjoni fix-xoghol tieghu. Kopja ta dan ir-rapport qieghed jintbaghat lill-President tal-Kamra tal-Periti.
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Annex ‘G’
The Malta National Laboratory 1. Corporate values are more than just a set of grand statements. They play an important
role in setting the stage for successful business practice, high calibre output and future direction.
2. Established in 1999, the Malta National Laboratory is an autonomous scientific facility
committed to satisfy the requirements of its clients. Equipped with state of the art equipment and a highly qualified staff, the National Laboratory provides quality analytical services, consultancy and training.
3. Lying at the hub of the Mediterranean basin, 93Km south of Sicily and 288 km north of
Africa, Malta enjoys a unique strategic geographical position that renders it ideal as a central business base. The Island’s developed infrastructure, its easy accessibility from major European cities and the cultural background of its people allows the business community the opportunity to develop strategic business alliances both locally and internationally. It is in this context that the Malta National Laboratory seeks to be an active and credible provider of scientific services with strong European and international strategic links.
4. OUR MISSION To be an autonomous scientific facility capable of serving the needs of industry and public interests in a customer oriented and commercial manner in compliance with international standards. Impartiality, Confidentiality and Confidence are the corner stones for the growth of our organisation and the fidelity of our clients. 5. FUNCTIONAL DESIGN The National Laboratory has four main divisions namely Chemical, Biological, Engineering (Mechanical) and Forensic Science. Areas of activity include the analysis of food and Water, environmental and pharmaceutical testing, pesticide residue and trace metal analysis, microbiological analysis, material and mechanical testing, drugs, serology, ballistic residue analysis and document analysis. Building and construction product testing is to be made available in the near future. The equipment of the National Laboratory has been purchased and financed by the European Union through the Third Financial Protocol. Most of the equipment is installed and commissioned and more investment in both premises and equipment is planned for the current year. It is envisaged that the total investment made in equipment by the end of the year 2001 will be in the order of approximately two million Maltese Liri. The National Laboratory has also secured new premises covering an area of 4000m2 in a central industrial area and will be occupying this new site by the end of 2002. The new premises will also contain in-house training facilities and meeting rooms to develop the training and consultancy arms of the corporate business profile. Over the next five years, the National Laboratory intends to widen its testing capabilities and serve other markets to the north and south of its geographical position. A strategic partner is to
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be identified for this purpose with the aim of interacting synergistically with the National Laboratory to the benefit of both organisations. 6. ORGANISATION AND MANAGEMENT The National Laboratory has a thin horizontal organisation structure so that communication is efficient, decisions and actions are easily transmissible throughout the organisation and activities and results can be easily monitored and directed. The National Laboratory currently employs a staff complement of fifteen persons, the majority of which are professional with academic qualifications from both local and foreign Universities. This, together with a working background based in industry provides a team that is young, dynamic a.nd innovative in disposition. It is envisaged that the staff complement will increase to twenty persons over the coming two years in line with increasing testing demands. 7. CORPORATE VISION The credibility of the National Laboratory is based on international recognition by means of accreditation, the ability to trace analysis back to international standards and on the ability to undertake careful, unbiased work of the highest quality. The Malta National Laboratory has initiated the process of implementing ISO Standards 17025 to achieve accreditation by the end of 2002. This standard is an internationally recognised requirement for the competence of testing and calibration laboratories. The operational rationale guiding the operations of the National Laboratory is modelled on the pursuit of excellence, innovation, efficiency and productivity. What this means, in practical terms, is that through the exercise of its duties, the National Laboratory shall provide a quality product with added value for its customers with autonomy, competence and customer confidentiality being foremost in priority.
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LABORATORY FACILITIES INDUCTIVELY COUPLED PLASMA OE SPECTROPHOTOMETER INDUCTIVELY COUPLED PLASMA MASS SPECTROPHOTOMETER ATOMIC ABSORPTION SPECTROPHOTOMETER ULTRAVIOLET AND FOURIER TRANSFORM INFRARED SPECTROSCOPY HIGH PERFORMANCE LIQUID CHROMATOGRAPHY WITH PHOTO DIODE ARRAY, UV/VIS AND FLUORESCENCE DETECTORS HIGH PERFORMANCE ION CHROMATOGRAPHY GAS LIQUID CHROMATOGRAPHY WITH NPD, ITD, ECD AND FID DETECTORS GAS LIQUID CHROMATOGRAPHY - MASS SPECTROMETERS ENZYME LINKED IMMUNO-ASSAY EQUIPMENT TOTAL ORGANIC CARBON ANALYSER AUTOMATED FOOD ANALYSIS EQUIPMENT WATER AND ENVIRONMENTAL ANALYSIS AUTOMATED PESTICIDE RESIDUE ANALYSIS MICROBIOLOGICAL ANALYSIS PHARMACEUTICAL TESTING EQUIPMENT PAINT TESTING EQUIPMENT SCANNING ELECTRON MICROSCOPY COMPARATIVE MICROSCOPY ISOELECTRIC FOCUSING AND ELECTROPHORESIS EQUIPMENT MECHANICAL TESTING FACILITIES LABORATORY INFORMATION MANAGEMENT SYSTEM.
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Annex ‘H’
Dipartiment tas-Servizzi Korrettivi Servizz ta’ Probation
1. B’ riferenza ghall-laqgha li saret nhar l-14 ta’ Dicembru 2001 mal-Kummissjoni hawn fuq
imsemmija gie mitlub mill-istess Kummissjoni sabiex jinkiteb rapport dwar il-hidma tal-Ufficjal tal-Probation fi hdan is-Sistema Gudizzjarja, Ta’ min ifakkar li l-Ufficcjal tal-Probation ghandu diversi rwoli fi hdan is-Sistema Gudizzjarja, fost dawn insibu supervizjoni tal-ordnijiet tal-Probation, Sentenzi Sospizi, u Rapporti (Pre Sentence Inquiry Reports, Social Inquiry Reports). F’ dan ir-rapport qed jigu indikati sitwazzjonijiet li mill-esperjenza taghna bhala Ufficcjali tal-Probation jista’ jkun hemm lok ta’ kambjament.
2. -Rapporti (Pre-Sentence Inquiry Report u Social Inquiry Report) ghandhom jigu pprezentati fid-data li tkun giet iffissata mill-Qorti. Ikun hemm drabi fejn id-data tigi differita ghal diversi drabi, dan johloq tul fil-prezentazzjoni tar-rapport. Barra dan ir-rapport jista’ jigi invalidat minhabba xi kambjamenti li jkunu sehhew fil-konfront tal-akkuzat. Ez: problemi ta’ droga, ta’ xoghol.
3. -Ikun hemm ukoll membri tal-gudikatura li jitolbu li l-individwu li jkun sar rapport fuqu jibqa‘ jigi segwiet mill-Ufficcjal tal-Probation. Din tigi qisa bhala Ordni ta’ Probation. Wiehed irid jifhem li P kazijiet bhal dawn m‘ hemmx kundizzjonijiet imposti fuq l-akkuzat u b’ hekk l-Ufficcjal ma tkunx fil-pozizzjoni li tezercita kontroll fuq l-akkuzat.
4. -Kaz iehor fejn jidhlu r-rapporti hu d-dewmien ta’ sentenza fuq l-istess rapport. Kien hemm
kazijiet fejn l-Ufficcjal giet imsejha sabiex taghti x-Xhieda taghha Xhur jew anke sena wara li jkun gie pprezentat ir-rapport‘ Hawnhekk nigbdu l-attenzjoni li mhux dmir tal-Ufficcjal li ssegwi l-akkuzat tul dan il-perjodu specjalment jekk ma jkunx hemm Ordni ta‘ Probation.
5. -Bhala Ufficjali tal-Probabtion parti mix-xoghol taghna hu li nhejju rapporti ghall-Qorti, dawn
ir-rapporti jintalbu kemm mill-Magistrat/Mhallef jew mid-difiza. Jista’ jigi suggeriet li fejn ir-rapport jintalab mid-difiza dan ikun suggett ghal hlas lid-dipartiment tal-Probation.
6. -Rapporti ghandhom jintalbu f’kazijiet genwieni, dan minhabba li jkun hemm kazijiet fejn l-
avukati jkunu jafu li hemm kaz ta’ habs fejn tidhol piena, Minhabba f’ hekk l-Ufficcjal tal-Probation jidher li trid tibgharu l-habs. Wiehed irid jiehu in kunsiderazzjoni li bhala Ufficcjali tal-Probation m’ ghandniex protezzjoni.
6.1 -Ghanda wkoll issir distinzjoni bejn Pre-Sentence Inquiry Report, Social Inquiry Report, jew rapporti ohra dwar l-andament u l-progress tal-individwu. Kien hemm kazijiet fejn Ufficcjal giet mitluba taghmel rapport u meta gie pprezentat ir-rapport giet mgharrfa li ma kienx PSIR/SIR izda rapport qasir fis-sens li mhux daqshekk dettaljat.
6.2 -Ikun hemm ukoll membri tal-gudikatura li f’ kaz ta’ Xhieda jew prezentazzjoni ta’ rapporti jitolbu infoimazzjoni personali per ezempju indirizz. Dan jista’ jkun ta’ periklu minhabba li kien hemm kazijiet fejn l-akkuzat kien prezonti fl-awla u sar jaf fejn toqghod l-Ufficcjal. F’ dan il-kaz ghandu jinghata l-indirizz tax-xoghol. Nghidu li din diga qeda tigi ezercitata minn whud mill-membri tal-gudikatura.
6.3 -Dewmien fil-kuriduri tal-qorti. Nfakkru Ii l-Ufficcjal tal-Probation ghandu xoghol amministrattiv ezempju xoghol ta’ kitba, Barra minn hekk l-Ufficcjal ikollha appuntamenti mal-
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klijenti li jsiru fl-Ufficcju tal-Probation. Mhux l-ewwel darba li l-Ufficcjal taghmel nofs ta’ nhar il-Qorti u minhabba f‘ hekk ikollha thassar l-appuntamenti li tkun ghamlet. Dwar dan jista jsir ftehim mad-deputat registratur ikkoncernat.
6.4 -Servizzi taghna mhux qed jigu utilizzati minn kulhadd fis-sens li hemm akkuzati li mhux jibbenefikaw minn dawn is-servizzi. Dan minhabba li ghad hemm gudikanti li ma jaghmlux uzu mis-servizzi offruti mill-Ufficcju ez: kazijiet fejn hemm lok li tinghata ordni ta’ probation u minflok tinghata conditional discharge fejn rn’ hemmx supervizjoni.
6.5 -lmportanti wkoll li fejn tinghata ordni ta’ probation il-gudikant jara jekk diga hemmx Ufficcjal li qed isegwi l-kaz dan sabiex nevitaw li jkun hernm aktar minn Ufficcjal wiehed isegwi l-istess individwu. F’ dawn il-kazijiet l-Ufficcjal mahtur taghmel rikors sabiex issegwi l-individwu izda mhux l-ewwel darba li t-talba tigi michuda.
7. Dawn huma s-suggerimenti pprezentati mill-Ufficcju ta]-Probation li jistghu jittiehdu in kunsiderazzjoni mill-Kummissjoni.
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Annex ‘I’
MALTESE ASSOCIATION OF SOCLAL WORKERS Following our meeting with you on the 14th December 2001 here follows the salient points that we discussed. Appointment of Court Experts
1) Qualification is currently the most appropriate benchmark to ensure that a person is qualified to act as a court expert in the social work field. A qualified social worker is a graduate with a three-year pan-time diploma or a four-year full-time degree (BA Hons) that also includes a specific amount of fieldwork practice in social work under sipervision.
2) The Social Work Professional Act is in the pipeline by which a register of social workers will be kept by the Social Board that will be set up by the same Act. Such a register will show who the qualified social workers are and their area of expertise or specialisation. Until this legislation is enacted, the Association of Social Workers recommends that only members of the Association be appointed as Court Experts, the reason being that only such members are bound by a professional Code of Social Work Ethics (copy attached). The Code of Ethics that is being referred to was adopted by the Association in one of its first Annual General Meetings and highlights the Social Worker’s ethical responsibility towards clients, colleagues and to the Social Work Profession itself Any proven misconduct can be sanctioned by the Association, and later by mechanisms provided for by the ACT.
3) In the appointment of Court Experts it is of utmost importance that only social workers Who
have not been involved in the actual case are called to do the assessments, reports etc. This will allow the client to have a fairer hearing.
4) TERM OF REFERENCE
MASW is recommending that a court expert is given clear terms of reference as to her or his role in the court process‘ At present certain time frames set for, for example assessments of a family situation, are unrealistic and can only lead to rushed and harmful conclusions. It is also important that what is required from the court expert is made clear, with details given of for example What type of assessment is required, whether recommendations are expected etc.
5) GIVING EVIDENCE AS AN EXPERT MASW would like to highlight its concern at the amount of time and money that is lost because of the inefficient court system, Generally a court expert who needs to give evidence in coull has to attend a number of times simply because proceedings are cancelled. This definitely not cost effective.
6) PAYMENT The question arises ofwho should pay for the court fees when it comes to social Work assessments etc. MASW has reservations about clients paying for services themselves as most cannot afford the fees, A related issue is the question of the fee itself and how is the amount to be paid to the court expert established and by whom. An arrangement that would resolve most of these issues would be for the Court to appoint public agencies or departments such as the
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Department of Family Welfare, Agenzija Appogg, Sedqa etc for the court reports, particularly for those clients who cannot pay such fees (as would have been shown by a means test exercise).
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CODE OF PROFESSIONAL ETHICS
1) OBJECTIVES Social work is a professional activity. The code of ethics is intended to serve as a guide to the everyday conduct of Social Workers and as a basis for the adjudication of issues in ethics when the conduct of social workers is alleged to have deviated from the standards of ethical behaviour for social workers in professional relationships with other individuals and professions, and with the community and society as a whole. The Maltese Association of Social Workers subscribes to the following principles as basic to the practice of the profession and obliges members to observe them.
2) PRINCIPLES OF PROFESSIONAL ETHICS 2.1 Every human being has a unique value, irrespective of origin, status, sex, sexual orientation, beliefs, or contribution to society. 2.2 Each individual has the ultimate right for self-detennination to the degree that it does not impinge upon the self-detenriination of others, or any other right. 2.3 Professional Social Workers are to actively influence social conditions or policies to achieve the maximum benefits for all members of society. 2.4 The Professional Social Worker has the responsibility to devote objective and disciplined knowledge and skill to aid individuals, groups, and communities in the prevention and solution of personal-societal conflicts and their consequences. 2.5 The Professional Social Worker has a primary obligation to the objective of service, which must take precedence over self-interest, personal aims and views.
3) STANDARDS OF ETHICAL CONDUCT 3.1 Relative to Client — Primacy of Client’s interest The Social Worker’s Primary responsibility is to the client.
4.2 Confidentiality and Privacy 3.21 The Social Worker is to respect the privacy of the client. 3.22 The Social Worker is to hold in confidence all information obtained in the course of professional service. 3.23 No information is to be released without prior knowledge and informed consent of the client except where the client or others may be seriously jeopardised. 3.24 Any client information shared shall be related only to the professional service function. 3.25 Any other information obtained from other sources is not to be released without the consent of the informant except to prevent harm to third persons.
4) Fees When setting fees the Social worker is to ensure that they are fair, reasonable, considerate, and commensurate with the service performed and with due regard for the cIient’s ability to pay.
5) RELATIVE TO PROFESSION 5.1 Conduct
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The Social Worker is expected to maintain high standards of personal conduct in her/his capacity and identify as a social worker. 5.2 Competence and Professional Development The Social Worker is to strive to be proficient in professional practice and work for its advancement. 5.3 Scholarship and Research. The Social Worker engaged in study and research should be guided by scientific and ethical principles. 5.4 The Social Worker, both on a personal basis a.nd as member of the Association, is to defend the profession against unjust criticism and work to increase awareness about the necessity of professional practice.
6) RELATIVE TO COLLEAGUES 5.8 Respect, Fairness and Courtesy. The Social Worker is to treat colleagues with respect, courtesy, fairness, and good faith. 5.9 Dealing with Colleagues’ Clients. The Social Worker has the responsibility relate to the clients of colleagues with full professional consideration. 5.10 The Social Worker shall bring any violations of clients’ interest or professional ethics and standards to the attention of the appropriate bodies and defend colleagues against unjust actions.
7) RELATIVE TO OWN ORGANISATION AND OTHERS The Association should promote the practice among Social Workers to: 7.1 Responsibility execute the stated aims and functions of the Agency, contributing to the development of sound policies, procedures and practice in order to obtain the best possible standards of services. 7.2 After the appropriate channels have been exhausted, the Social Worker is to initiate appropriate appeals to higher authorities or the wider community. 7.3 Ensure periodic and professional accounting of client and organization problems and self-performance.
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Annex ‘J’
Re: Appointment of Psychologists as Court Experts
1. Please refer to our meeting of 21“ December 2001 re above. Our response has been delayed, as I informed you over the phone, because of the sudden passing away of our President, Mr. Alfred Zammit Montebello.
2. We fully share the concern of the Commission on the need to ensure that psychological issues
are dealt by properly qualified psychologists. There is as yet no legislation in Malta on the warranting of psychologists. However, the Commission may make use of the provisions of the agreement, dated 16“ May 1996, between the Malta Union of Professional Psychologists and the MPO which established the "Psychologists Class" in government employment. That agreement established the following criteria for Educational and Clinical Psychologists:
a. For Educational Psychologists: • an honours degree in psychology or a recognised equivalent qualification (e.g. B.A./B.Sc. (Hons
Psych)); • a professional Master’s degree in educational psychology or a recognized equivalent
qualification; • a permanent teachers’ warrant and at least two years teaching experience.
b. For Clinical Psychologists:
• an honours degree in psychology or a recognised equivalent qualification (e.g. B.A./B.Sc.(Hons
Psych)); • a professional Master’s degree in clinical psychology or a recognized equivalent qualification; • at two years supewied experience in a clinical setting.
3. In addition, in January 2001, the Malta Union of Professional Psychologists and the Maltese Psychological Association had agreed on a “Draft Bill of the Psychologists Profession Act 2000” (which the Minister of Social Policy had promised to pass through parliament), which reaffirmed the above criteria and added a Grandparent clause (see Enc. 1, copy of agreement) for those that were trained at least five years previous to the 1996 agreement. The commission may wish to urge the government to pass the law as the best way to ensure that those who call themselves psychologists have the appropriate warrant.
4. As requested we are also passing on the names of those of our members (7) who are willing to
act as court experts (see Enc. 2/ii). Since the number of psychologists in Malta is still quite small, a.nd most are in full-time employment, while the demand for psychological services has grown, there are relatively few who are willing to take up court expert work.
5. With regards to procedures: Our members would like to highlight the fact that psychology is a
wide discipline. It would therefore be helpful for those to whom a case is referred, to be provided with an indication of the issues involved so the psychologist can decide if it is within his or her competence and expertise.
6. Secondly, because most psychologists are employed full-time, and engage in part-time private
practice, they would appreciate not being pressured to take up cases, even if they are within their expenise, if they happen to be overloaded with other work at the time.
Copy of article 3 of ‘A bill entitled Psvchologists (Profession) Act 2000’ which was agreed by
MUPP & MPA in January 2000, on conditions required for a warrant to use the title Psychologist.
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Conditions required to qualify for a warrant.
7. No person may call himselfor herself a Psychologist unless he or she is the holder of a warrant issued under section 4 of this Act.
8. A person shall not qualify for a warrant unless applicant- (a) is a citizen of Malta: (b) is of good conduct: (c) is of full legal capacity: (d) shall satisfy the Board that is in possession ofa psychology degree of the University of Malta at
both the graduate and post-graduate levels or equivalent qualifications relating to the profession of psychologist as at the relevant time is recognized by the Board to be sufficient for the purposes of this sub-paragraph: and
(e) for a period of not less than two years after obtaining the qualifications he has trained in the practice of the profession under the supervision of a warranted psychologist.
9. Also eligible for the warrant are those persons who are not in possession of the above qualifications but who will be granted a warrant under the following Grandparent Clause as a one time concession granted to applicants within six months of the enactment of the Psychologists‘ Bill:
a) Either their training made them eligible for a warrant license to practice in the country where
they trained. b) Or they satisfy all of the following 4 (four) conditions: • Have at least a Master’s degree in psychology, which includes professional training. • Have been working as a psychologist for at least five years prior to 6"‘ May, 1996 • Show evidence of continuing professional training • Lectured on a regular basis in psychology in a university and or held a post as a psychologist in
a government department or agency as certified by the respective head of the relevant department or agency for at least five years prior to 6th May 1996.
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