The loss of remission is not a punishment but a means of keeping discipline in prison

The introduction of the Remission Board meant the prison authorities could reduce the days of remission and therefore, the longer prisoners are kept. This was held in a habeas corpus application presented by Anthony Borg before the Magistrates Court, presided by Magistrate Dr Victor Axiak. The application was filed in terms of Article 409A(1) of the Criminal Code. Borg claimed that he was being held in terms of Articles 21 and 22 of the Restorative Justice Act, which provided for remission of prisoners. He claimed that he had served a six-month prison sentence given to him by the Court of Criminal Appeal in July 2023 and therefore, as such his detention was without cause.

Article 409A(1) of the Criminal Code reads:

“(1) Any  person  who  alleges  he  is  being  unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody…..”

Article 4(1) of the Prisons Act only allow people to be kept in prison if he or she is condemned by a criminal court.

The next piece of legislation may be found in Article 20 of the Restorative Justice Act, which set up the Remission Board. Article 21 of the same act states:

“(1) Offenders may be awarded remission of sentence on the grounds of performance at work, at training, during educational and rehabilitation programmes, adherence to the care plan as approved by the Offender Assessment Board, and the offenders’ general overall good conduct. The Remission Board shall establish a system whereby remission days are awarded to each individual offender according to objective criteria.

(2) Remission shall be earned, forfeited and awarded back in accordance with this Act, any regulations made under this Act and the criteria laid down by the Remission Board.”

Articles 22 and 23 also state that remission should not be given if a prisoner is not behaved and if he or she is behaved, then remission may be given no longer than a third of the prison sentence.

The prison authorities who testified explained that the applicant had a right to have his sentence reduced by 60 days, however, the Remission Board reduced the remission by 61 days and therefore lost all his remission. Therefore, he would be released in January 2024. These 61 days were reduced before the Court of Appeal judgment that awarded the applicant the six-month sentence. The applicant argued that this was not permitted, as he had already left prison on a previous occasion.

The Court analysed the parliamentary debate when the Restorative Justice Act was being passed through parliament. From reading the debate the Court pointed out that the two sides of the House agreed on the law. The remission at the time was automatically applied and therefore, the new Act was to introduce a new system where the Remission Board have discretion to reduce the remission of a prisoner, if that prisoner was disruptive. The law is now clear that no prisoner has an automatic right to remission. Since this particular prisoner had lost it in the past 61 days, then it had to be applied.

The Court drew the applicant’s attention to several factors. Article 23(1) of the Restorative Justice Act uses the word prospective and therefore, the remission should be applied before a person is released from prison. The law does not want that remission be applied when a person leaves prison and then re-arrested. The Court pointed out that the applicant was found guilty of several offences since 2011 and was sentenced to prison a few times. Between July 2019 and April 2021, he had breached the prison regulations 39 times and had lost 84 days of remission.

The Court held that an important component of discipline in prison are the disciplinary procedures. The scope of these procedures is not to punish but to keep order. It does not make sense that a person would have lost a number of days of remission and then is released from prison and then starts with a clean slate when he is then re-arrested.

The Court then moved to dismiss the application and held that the applicant’s arrest in prison is not illegal and should be released in January 2024.