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Hiccups in criminal code amendments highlighted
By Ramona Depares

The proposed amendments to the criminal code, while a step in the right direction, failed to address certain areas that urgently needed review, Dr Joe Giglio told the MaltaToday. The criminal lawyer’s comments came after the bill of amendments – which contains some one hundred and fifty sections – was published earlier this week.

“Unfortunately, certain areas seem to have been forgotten. Take the granting of bail, for instance, the criminal code contains certain time limits after which bail must definitely be granted to the accused. However, these time-limits are hindered with so many grounds for interruption that they cannot be applied in practice,’ the lawyer explained.

Dr Giglio also raised interesting points regarding the newly-introduced right to have a lawyer before police interrogation. While at first this introduction might seem a welcome one by many defence lawyers, the exercise of this right will lead to the application of the rule of inference. The rule will apply when an accused who was aided by his lawyer throughout the police interrogation fails to mention throughout the same interrogation facts and evidence which he later raises in court.

“This rule would only be fair if a similar duty is imposed upon the police officers to lay their cards on the table. Unless a defence lawyer knows what stage the investigations have reached as well as what kind of evidence is in the possession of the police, how can he know whether to advise the right to silence or not?” the lawyer continued.

To further illustrate his point, Dr Giglio used the example of a man standing accused of theft.

“Let us say that the accused has an alibi. The defence lawyer cannot decide on the spot whether to reveal this card or not. It’s one thing if the police intend to produce a witness claiming that the accused was on the scene of the crime – and it’s another if the police have no solid evidence on which to move. The decision of the defence lawyer would naturally depend on this information, but it does not appear that the present criminal law reforms, place any such duty on the police officers,” Dr Giglio said.

Another bone of contention is the new provision regarding excusable punishment committed under the first transport of sudden passion: a minimum punishment has been introduced and the defence line falls unless the jurors are convinced that there was no intention to kill.

“This amendment is pathetic. Human nature is such that one can still form a specific intention to kill while under the first transport of a sudden passion. Indeed, the intention is formed precisely because of this sudden passion. This is especially over the top bearing in mind the newly introduced minimum punishment threshold,” Dr Giglio continued.

Going against the balance is also the provision concerning the special investigation powers that are enjoyed by the Attorney General in cases related to money laundering as well as drug related offences. These special powers have been extended to all offences carrying a punishment of more than one year’s imprisonment.

“Does this mean that a person facing involuntary homicide charges can now have his whole life investigated?’ Dr Giglio asked. “This amendment would only make sense if introduced together with adequate safeguards regarding the way this power is exercised. At least this would create a counter balance between the right of the investigator and those of the investigated.”

As regards the upping of the maximum punishment allowable in the case of involuntary homicide (the maximum has been increased from two years to four), the lawyer had only words of praise.

‘Considering that traffic problems are on the increase, this is not a bad idea. The court still has the discretion to go below the minimum punishment depending on the particular case.”

Other amendments to the code include the following:

• Those facing charges of theft or fraud will get a reduction in punishment if they give information on accomplices or make the damage good. This does not apply if the crime is aggravated by violence or age of the victim.
• Attacking the character of a witness of the prosecution opens the way for the accused’s criminal precedents to be mentioned in court.
• The accused can ask for bail as from the very first court sitting. The request need not be in writing. Moreover, the Magistrate can order his immediate release if detention is illegal.
• Knowingly or negligently spreading an infectious disease has been made an offence.
• Aggravation due to age is being extended to when the victim is over 60 years of age, rather than 65.
• Usury has been made an offence punishable with a thirteen month imprisonment or a Lm50,000 fine, or both.
• The Attorney General has a general right of appeal from sentences delivered by the Court of Magistrates, except for summary proceedings or district hearings.
• The punishment for fraud has been increased.
• Search or arrest warrants must be issued by a magistrate in every case, bar urgent situations such as catching the accused red-handed.
• Racial hatred has become an offence.

MaltaToday also spoke to Dr Chris Cilia, who described the amendments as constituting a major overhaul of the criminal law system and as going a long way towards redressing the imbalance which existed to date between the rights of the accused and of the victim. Much has been said about the rights of the victim of a crime, rights which up to now have been very limited, if not non-existent.

‘It is also very interesting to analyse the proposed amendments from a social point of view. Sociologists can definitely obtain an insight of the social realities of the new millennium. This is clearly reflected in the introduction of three new criminal offences – the crime of spreading of racial hatred, the crime of voluntarily or by gross negligence transmitting an infectious disease, and the crime relating to the trafficking of human beings – as well as the stipulation of harsher penalities for the crime of fraud, easily one of the most common crimes at present and steadily on the increase.” Dr Cilia said.

The lawyer added that a number of rights of the accused had already been established for a long time in other legal systems, such as that of the States and that finally these rights are being introduced in Malta, as well.

“The proposed amendments also appear to contain the appropriate checks and balances to ensure that these new rights given to the accused are not abused of and do not serve as, hindrance to the proper process of justice,” Dr Cilia concluded.