Redefining cannabis, redefining crime

On 18 December 2021, Malta historically rewrote its cannabis laws. Act LXVI of 2021 introduced a regulated framework for the personal use of cannabis, permitting limited possession and home cultivation whilst also creating the legal foundations for non-profit cannabis associations. However, in the midst of all this a technical amendment went unnoticed. The legal definition of cannabis under the Dangerous Drugs Ordinance was changed, eventually proving to be decisive in an entirely different type of case.

On Valentine’s Day 2021, police entered a St Julian’s hotel room following a report of drug use. They arrested a 21-year-old man and a 19-year-old woman who had allegedly been smoking cannabis. A photograph released after the raid showed a half-smoked joint, a small amount of cannabis and a grinder.

At that time Malta had already removed criminal convictions for certain cases of simple possession, but the law still gave the police the power to make arrests and conduct interrogations on those found using cannabis. The St Julian’s hotel raid was not the first.

In the judgment delivered in Police vs Joerg Herbert Schellhammer on 27 July 2026, the law had already changed while the prosecution remained pending. More importantly, parliament had not merely reduced the punishment attached to an offence but it had changed whether the substance at the centre of the proceedings legally constituted prohibited cannabis at all.

Schellhammer’s case began less than three months after the 2021 reform came into force. On 8 March 2022, custom officers at the UPS centre in Luqa intercepted two packages addressed to Stone Market Co. Ltd after a customs dog indicated their contents. Two days later, Schellhammer was arrested when he went to collect the packages. Cannabis-related products and jars containing cannabis grass were found inside, while further plant material was seized during searches at the Stone Market shops and offices.

Schellhammer did not deny his connection to the substances. During his police interrogation, he accepted responsibility for the products and explained that he had imported them to sell them through his shops. He reiterated that his business was legal “to the extent that he even paid taxes on his sales”.  

That statement gave the case an unusual factual background, but the payment of tax was not what ultimately brought the prosecution to an end. Declaring income does not make otherwise unlawful conduct legal. The decisive issue was instead the chemical composition of the substances and how parliament had defined cannabis by the time the court delivered its judgment.

The court-appointed expert analysed buds and cannabis grass with a total weight of approximately 1.74kg. THC and CBD were detected, but the average THC concentration was below 0.2%. When cross-examined in April 2026, pharmacist Godwin Sammut confirmed that finding and added that, under the definition then in force, “none of the illegal substances analysed in this case would be deemed to be illegal”.

The prosecution therefore found itself in an unusual position. It had evidence that Schellhammer had imported a substantial quantity of cannabis plant material for commercial sale. Yet the court first had to decide whether that material still fell within the legal meaning of cannabis, as defined in the Dangerous Drugs Ordinance. Before examining the merits, the court felt it “imperative” to consider the applicable definition of cannabis and determine what, “today”, was considered an illegal substance.

Under the definition introduced in 2021, cannabis included the inflorescences and leaves of a plant of the cannabis genus, its resin and preparations derived from it. However, the law excluded cannabis seeds and cannabinoid products containing no more than 0.2% THC. That wording left room for a distinction between low-THC cannabinoid products and the raw flowers, buds or leaves of the plant itself.

Parliament amended the definition again in 2025. The new wording expressly excluded inflorescences, leaves, extracts and products derived from non-psychoactive phytocannabinoids containing no more than 0.2% psychoactive cannabinoids. The amendment was significant because the exclusion was no longer limited to the general expression “cannabinoid products”; it now expressly referred to the plant material involved in Schellhammer’s case

Magistrate Elaine Rizzo, acknowledged under the previous definition, it may have been argued that importing or possessing part of the cannabis plant remained criminal even where the THC level did not exceed 0.2%. However, she added that this was “definitely not the case” following the later amendments introduced in 2025.

The case had therefore moved beyond the question of whether Schellhammer had imported the substances or intended to sell them. It had become a more fundamental question of criminal law: Could a person be convicted under an earlier law when, before final judgment, an amendment to the law had altered the definition so that the conduct no longer constituted an offence? The answer was a clear ‘no’ and the magistrate refused to proceed since the alleged illegality had ceased to exist.