Drug protest to challenge ‘unquestionable’ Attorney General’s discretion

AG has ‘absolute discretion’ in assigning cases to be heard by either lower or upper courts: the difference being a minimum sentence of just six months and four years while maximum penalties vary from 10 years to life.

Promoted as a ‘Cannabis Reform Demonstration’, next Saturday’s protest was sparked off by a number of disproportionate prison sentences handed down for possession of marijuana.
Promoted as a ‘Cannabis Reform Demonstration’, next Saturday’s protest was sparked off by a number of disproportionate prison sentences handed down for possession of marijuana.

It has been described as a protest demanding 'decriminalisation' of soft drugs in Malta: but lurking behind next Saturday's planned march in Valletta is a far wider-reaching challenge, which aims to end the absolute discretion enjoyed by the office of the Attorney General on decisions which would radically affect the possible sentences for certain crimes - drug-related offences being but one example.

Contacted yesterday, criminal lawyer Dr Joseph Giglio explained that apart from the sheer severity (and at times inconsistency) of the courts' sentencing regime in drug-related cases, there are two other issues fuelling Saturday's protest: one of which is only partly connected to drug law reform.

The first issue concerns the failure of Maltese law to distinguish between cultivation and trafficking - a fact which leaves the Law Courts with no discretion but to apply draconian sentences associated with international drug trafficking, even in cases where little or no evidence is brought forward to prove 'intention to traffic'.

The second, arguably more urgent issue deals with the AG's 'absolute discretion' when it comes to assigning cases to be heard by either the lower or upper courts: a choice which can mean the difference between a minimum sentence of just six months (lower court) and four years (higher)... while maximum penalties vary from 10 years to life.

The AG's discretion has been defined as "insindakabbli" - i.e., beyond all line of questioning - by Malta's Constitutional Court, in a verdict Giglio challenges as 'weak' and unsound.

Promoted as a 'Cannabis Reform Demonstration', next Saturday's protest was originally sparked off by a number of disproportionate prison sentences handed down for possession and/or cultivation of marijuana: one recent case being that of Welshman Daniel Holmes, sentenced to 11 years and fined €23,000 for growing two cannabis sativa plants in his Gozo apartment.

Within days of Holmes' conviction, an online petition urging a revision of sentence attracted well over 1,000 signatures, and prompted widespread calls for a reform of Malta's drug policy. A Facebook group promoting a public protest on Saturday 17 December was quick to follow, and at the time of writing more than 500 have publicly confirmed their intention to attend.

Dr Giglio however argues that the protesters' grievances are not limited only to the severity of the verdict in one particular instance. Holmes' case, it seems, has also drawn attention to a stark anomaly, written into Maltese law, that would equate consumers of soft drugs with international drug traffickers, and punish them accordingly.

"People I have spoken to who will be attending Saturday's protest have explained that there is an important distinction to be made between cultivation and trafficking," Giglio said yesterday. "Sometimes, regular pot-smokers prefer to grow their own plants, not to sell drugs, but precisely in order to avoid having to illegally buy their own drugs from drug-traffickers, thereby financing the criminal underworld."

The difference, Giglio explains, is that by choosing to by-pass the street-level drug trafficker, such users are actually weakening the criminal circles involved in the illicit drug trade. And yet, Maltese law specifically equates the act of cultivating a marijuana plant with the act of trafficking in marijuana - regardless of whether the intention to actually sell the cultivated drug is proven in court or otherwise.

"These people therefore question why the law should expose them to the same penalties as drug pushers, when in actual fact their actions are doing a disservice to drug trafficking in general," Giglio said.

But it is the second issue that has attracted the interest of a number of criminal lawyers - including Nationalist MP Dr Franco Debono, who has separately raised the same question in his private member's bill for judicial reform.

Independently of Saturday's protest, lawyers like Giglio and Debono openly question the sheer breadth of the Attorney General's discretion to choose between different courts (with all the serious implications for sentencing), in the light of a number of anomalous and often inconsistent decisions: including, but not limited to, the case of Daniel Holmes, whose 11-year sentence exceeded the very maximum he would otherwise have faced, had his case been heard before the Magistrates' Court.

The rationale behind the AG's decisions in such cases is not always clear-cut, and lawyers have in the past argued that the maximum discretion he enjoys can be abused for the purposes of extracting a guilty plea. Persons under arrest - be it for drug offences or otherwise - are often warned that their case would be heard before the upper courts - with the possibility of life imprisonment, instead of a maximum of 10 years - unless they 'co-operate' with the prosecution and plead guilty.

But apart from the glaring discrepancy in sentences handed down by the different courts, questions have also been raised also about the inconsistency in sentencing by the same courts: sometimes, by the same magistrate or judge.

In the case of Daniel Holmes - who was arrested for cultivation of two cannabis plants weighting a total dry weight of 1kg - Judge Lawrence Quintano of the Criminal Court handed down a sentence of 11 years imprisonment, and a fine of €23,000. Later that same week (29 November), the same Judge Quintano convicted another man of cannabis cultivation: Peter Joseph Bonnici was sentenced to seven years six months, and a fine of €17,400... despite the fact that the amount of cannabis discovered at Bonnici's Zejtun home was 179 cultivated plants, 513 dried plants and 1,785 marijuana seeds: i.e., literally dozens of times more than the cannabis haul retrieved from Holmes' Gozo apartment.

In both cases the defendants had pleaded guilty: yet the one convicted for the lesser offence was meted the harsher punishment, for reasons that remain unclear to this day.

Dr Giglio meanwhile points towards another case, this time unrelated to drugs, in which three individuals, charged with the same offence, have had their cases assigned to different courts. In the case of two of the suspects, the AG decided to assign the case to the upper courts. But a third case is being heard before the magistrate's court, which effectively means that the penalty involved is significantly lower than the other two... even though the alleged offence was identical.

"When my client challenged this apparent discrimination, the Constitutional Court came back with the weak answer that the AG's discretion is - to use the Maltese word - 'insindakkabli'... which effectively means that it cannot be challenged."

Giglio however added that neither he nor his client intends to take the matter lying down. "What do they mean, 'cannot be challenged'?" he added. "How can such a serious matter be simply placed beyond all discussion, without any reasons given? These are decisions which have a serious impact on people's lives."

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I think a reform in the law re substances is needed. The biggest contradiction needs at least to be overcome. Drug use and addiction is considered to be both a mental disorder and a crime. The contradiction is akin to being sent to prison because one suffers from a depression. In fact many people are sentenced to do programmes, which in actual fact need reform themselves as most lack funds to run, rather than be given prison terms. The latter, like programme terms, don't seem to be working exactly as they should, often leaving the drug user himself or herself worse off after the experience. In fact deaths associated to drug overdoes has increased radically, especially for people just out of prisons and out of programmes. A shame!
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shocking! seriously disturbing discrepancies!!! judicial reform should definitely be made a TOP PRIORITY by the next Government.
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Great article.