It’s also Christmas in the Criminal Courts

Applications are presented to vary bail conditions all throughout the year, however, they are most definitely a Christmas speciality.

The criminal process is not easy to understand and its subject persons pass through different routes. For simplicity’s sake let us group these persons into three categories: Persons undergoing summary proceedings; persons awaiting trial and; persons serving a prison sentence.

Persons undergoing summary proceedings

Here we are dealing with persons accused of minor offences which fall within the original competence of the Court of Magistrates. These offences carry a punishment not exceeding two years or not exceeding 12 years; however, the Attorney General must consent for the person to pass through summary proceedings as opposed to a criminal trial.

Examples of these offences are slight bodily harm, driving without a licence and contraventions against the person such as threats.

Those persons falling within this category don’t pass through the whole criminal process. In these instances, the accused would normally receive a charge sheet at home and is given a date to appear before the court wherein judgment is usually delivered on the same day. Although this is normal practice, there are instances where the police arrest the accused and a bail application must be made. Yet, in the majority of cases, there is no need for a bail application since the accused is not detained and hence, such persons are at large very free at Christmas to spend it as they please without the need of a court nodding.

Persons awaiting trial

Here we are dealing with persons accused with serious crimes such as domestic

violence, rape, theft, money laundering, homicide, and so on. These persons are largely detained save for a successful bail application. As per common practice the court tends to stipulate strict bail conditions such as imposing curfews, prohibiting the individual from leaving the country, restricting communication and even imposing protection orders.

The scope of bail is simple—to uphold the most sacred presumption of innocence whilst at the same time ensuring that the criminal process is preserved and in no way tainted. Many times, bail conditions would be stipulated in a way that would impede or hinder an accused from attending a Christmas party, or going to a Christmas dinner, or going abroad with his family. However, bail conditions are often varied during this season so that the innocently-presumed-accused enjoys his right to family life just like everybody else.

All this is possible upon a successful application to vary bail conditions. In the case of a father awaiting trial who wishes to go abroad with his family for Christmas, he must inter alia, in his application, inform the court where he intends to fly to, state which persons will be accompanying him, provide contact numbers of said persons and exhibit copies of tickets and accommodation.

The court would then notify the Attorney General to see what she has to say about it. Naturally, the court has full discretion to impose any kind of new restrictions on said variations.

While for some, especially the victims’ family, the institution of bail is a hard pill to swallow, let alone the variation of bail conditions allowing for more family Christmas time, one must keep in mind the sanctity of the institution; that is the presumption of innocence. During a parliamentary debate in 1986 the late Guido De Marco had stated: “[L]-arrest għandu jkun proviżorju mhux il-libertà hija mogħtija proviżorjament,” which essentially means that bail ought to be the rule not the exception.

Persons serving a prison sentence

These people do not benefit from the institution of bail or are presumed innocent since they would already have been found guilty. However, it is not all doom and gloom for all of them, as it is still possible for some prisoners, albeit in a very constrained manner to enjoy maybe a slice of a Christmas event with their families. This could be done by applying for prison leave, which is a concept that is totally foreign to bail. It must be underscored that this is not common practice.

Prison leave is regulated by Article 61 of the Prison Regulations, which inter alia states: “Prison leave may be granted by the Director, in accordance with such general directions as may be from time to time given by the Minister, to a prisoner under such conditions as may be determined by the Director in accordance with such directions as follows…”.

This facility is not granted to all prisoners and it is the Prison Director who has full discretion to grant said leave within the parameters of the law.

One could appreciate the rehabilitative aspects of prison leave by looking at a very recent event where, for the first time, seven Maltese prisoners travelled abroad to participate in the Pope’s Jubilee of Prisoners in Rome; an event which was coordinated by the Correctional Services Agency and the Ministry for Home Affairs, upon invitation of the Maltese Ambassador to the Holy See.

Christmas in the Criminal Courts is therefore not about leniency but about ensuring that justice remains proportionate and humane. Merry Christmas to all!