Bailing out inconsistencies

We question the validity of a judicial system which views simple possession of cannabis a more serious offence than either double murder, attempted robbery, money laundering, or even a combination of all three.

Cartoon for MaltaToday Midweek by Mark Scicluna.
Cartoon for MaltaToday Midweek by Mark Scicluna.

Recent discrepancies by the law courts in granting or withholding bail have been simply too conspicuous to ignore.

In the last month alone we saw two cases in which Maltese nationals accused of very serious crimes - including murder and attempted murder - were granted bail against a deposit of €5,000 and a personal guarantee of €10,000.

Without entering the merits of whether bail should have granted in either case, it is worth examining the specifics of the charges concerned.

Joseph Cutajar, 45 from Marsascala - better known by his nickname 'Il-Lion' - was accused of double homicide and, separately, money laundering.

Another case is that of Fabio Psaila, who stands accused of the attempted murder of two policemen, as well as a hold-up at a jewellery.

What makes Psaila's case particularly noteworthy is the fact that he was recently apprehended following a police manhunt lasting three weeks... after previously jumping bail and going into hiding.

Elsewhere, two AFM officers accused of murdering a Malian asylum seeker in their custody were likewise granted bail - only in this case, the deposit and personal guarantee were both substantially higher than usual.

To avoid any misunderstanding from the outset, it must be stressed that what is questionable in all these cases is not so much the fact that bail was granted - ultimately, it is at the discretion of the magistrate to decide whether there is any valid reason to remand a suspect in custody - but rather, the inconsistency with which the same law-courts seem to treat different cases... especially, it seems, where foreigners are concerned.

At times, this inconsistency borders on the downright irrational. Contrast the above cases with that of Saheed Olowoshile, a 34-year-old Nigerian national currently languishing in Kordin prison after having been denied bail in a simple drug possession case.

The amount of cannabis found in his possession was not specified in media reports; but seeing as the prosecution limited charges only to 'simple possession', one can infer that the quantity of cannabis was deemed to be for personal use: i.e., not more than 10 grammes.

Magistrate Miriam Hayman opted to withhold bail in this case, after hearing the testimony of the defendant's Nigerian wife who claimed that their marriage was not legally valid.

Hayman also ordered a pre-sentencing report to determine whether Olowoshile had drug addiction problems; though it is not clear whether this had any bearing on the subsequent decision to deny bail.

Either way, a few questions immediately spring to mind. What, exactly, is the relevance of the state of Mr Olowoshile's marriage to the criminal charges with which he stands accused? One possible answer is that the defendant had earlier testified that he was married: raising the possibility that he had committed perjury.

But if this were the case, separate charges should be issued for what is ultimately a separate crime... and this does not seem to have occurred.

On a secondary level, the concern with whether Olowoshile has drug addiction problems seems at a glance to directly conflict with the decision to deny bail. Put simply, a drug addict's place is not in prison, but in rehab. This is now the view of all experts involved in Malta;s drug policy: starting with the clinical director of government's own drug agency Sedqa, Dr George Grech, who is on record stating that 'prison does more harm than good' in drug possession cases.

Moreover, recent revelations in the wake of the Josette Bickle case suggest that drugs are more readily available inside prison than on the outside. What sense therefore does it make to keep a suspect in prison while experts determine if he is a drug addict or not?

But the real issue is another. Ultimately, the decision to grant or withhold bail is itself a reflection of the severity of the crime in question. There are two main considerations that are traditionally taken into consideration: one, whether the temporary release of the suspect may pose a danger to society in general; and two, whether there is a chance that the suspect may avail of his or her provisional liberty to escape justice (normally by absconding).

On both counts, the motivating factor is the crime itself: a suspect charged with murder (for which the maximum sentence is life) is for obvious reasons more dangerous to society than someone charged with petty theft, or some other minor crime.

And for equally obvious reasons, the likelihood of fleeing the country is far greater in the case of serious than trivial offences.

And yet the cases outlined above - and there are many more - suggest a complete reversal of the same logical sequence. Bail has been routinely granted in cases where there is very real suspicion that the defendant may abscond or otherwise jump bail; and also in cases where the defendants could conceivably pose a very real danger to the public.

And yet the same courts deny bail to a man charged with possession of less than 10 grammes of cannabis.

Given the above discrepancy, one simply has to question the validity of a judicial system which evidently views simple possession of cannabis as a more serious offence than either double murder, attempted robbery, money laundering, or even a combination of all three.

Something clearly does not make sense.


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Stefan Mifsud
This is discrimination pure and simple. However there may be an underlying problem. That is the length of time to bring people to court. Sitting in prison waiting for your case to be heard for months on end, whatever the crime, is another injustice which I believe has been ruled upon by the European Court of Human Rights. Possibly this could be the reason why certain "criminals" are being granted bail while others are not. Another discriminatory occurrence on a daily basis is when a witness does not appear at court as opposed to an officer of the police corps, an expert witness or some other Government official. In the former a fine of Euro 116.47 is immediately imposed. To the latter the normal excuse is that then person is held up with some other duty or work and therefore he/she is excused. As if normal Joe public does not work or does not have other priorities in his/her life.