Judge overturns woman's loitering conviction: ‘Prosecution failed to prove charges’

A 49-year-old woman from Mqabba has been cleared of loitering for the purposes of prostitution in Marsa by the Court of Criminal Appeal.

In a significant ruling, the Court of Criminal Appeal, presided by Madame Justice Consuelo Scerri Herrera said the prosecution had failed to prove why they believed the woman was soliciting for the purposes of prostitution.

The woman had been arrested by a police patrol after she was spotted loitering in an area known for prostitution, with two other women in October 2019.

Last February, the Court of Magistrates had found her guilty of loitering for the purposes of prostitution, noting she had been convicted of this offence a number of times before and had failed to explain what she was doing in the street.

“The courts have always acted gently with the accused, probably to give her a number of chances to get her life in order, but it seems as though she persisted living a criminal life,” the magistrate had said. The magistrate’s court had also added: “It cannot be that she keeps doing as she pleases and acts as though she’s above the law. She must truly and seriously understand that when you make a mistake, you will be punished by law.”

However, in a 20-page judgment, Scerri Herrera examined the individual parts of the offence of soliciting for the purpose of prostitution, comparing case at hand with previous cases of a similar nature.

The judge noted that the police had not given a reason as to why they had concluded that the woman was soliciting.

“They didn’t say that she stopped anyone, or that they saw her walking up and down the same pavement, or that she was bothering anyone. They only say that in their opinion she was loitering in a public street,” the judge noted.

She said the prosecution witnesses needed to help define what they meant by ‘loitering’ as this had a subjective interpretation.

Neither did the police witnesses indicate what the woman was wearing at the time, while describing the clothing worn by the other two women she was with as “provocatory”.

The court pointed out that the accused was not obliged to prove her innocence, but that it was the prosecution which had to prove guilt.

“The word ‘soliciting’ means not only speech, but also facial and bodily movements like a smile or an indication of an invitation to prostitution… The aim of the law is to protect passers-by who have no thoughts of adventures and who should not be harassed. For such people the proposal would simply be an annoyance,” the judge said.

However, in the light of the evidence provided, the prosecution had failed to prove to the satisfaction of the court that the appellant was truly loitering “and even less that there was an intention of prostitution”.

Finding the conviction not safe and satisfactory, the court overturned it and cleared the accused of all charges.

Superintendent Robert Vella prosecuted.

Lawyers Franco Debono and Marion Camilleri were defence counsel.