General Principles of Criminal Law
Criminal Law
“Criminal law should be founded upon principles that are permanent, uniform and universal, and always conformable to the dictates of truth and justice, the feeling of humanity and the indelible rights of mankind” – Blackstone.
The most important function of the state is that which it discharges as the guardian of the order, preventing and punishing all injuries to itself and all disobedience to the rules which it has laid down for the common welfare. Those acts or omissions which the state considers as a threat to the common welfare are thereof punished in the Criminal Code and other laws – the penal laws.
Every penal law consists of two elements, that is to say, the precept (preceptum legis) whereby the state prohibits or commands the doing of a certain act, and the sanction (sanctio legis) whereby the punishment is threatened against the transgressor.
In simple and primitive communities it is no doubt possible that rulers and magistrates execute judgements in such a manner as best commends itself to them. Early law is conceived as Jus (the principle of justice) rather than lex (the will of the state). The function of the state in its earlier conception is to enforce the law not to make it. The rules to be enacted are those of right which are found realised in the immemorial customs of the people or which are sanctioned by religious faith and practice, or which have been divinely revealed to man.
But as the state grew up and the machinery of Government became more complex, things become different; and in almost all modern countries, legislation by the state has asserted its exclusive claim.
The state needs to enact positive laws whereby it authoritatively declares the rules which it intends to enforce and initiates the penalties which the breech if those rules will entail. The enactment of such laws is the guarantee of the rights of the individual. Every member of the community has complete freedom unless he hinders the freedom of others as it is laid down in the law. 1 Relationship between Criminal Law and Morality
According to Denning J L at the time of Henry I it was believed that: “In order that an act should be punishable it must be morally blameworthy. It must be a sin”1 The fact whether Criminal Law should be based on morality so as to enforce it is a debate that is still being discussed until today. According to H.L.A. Hart in his book “Law, Liberty and Morality”, wrote that the main intent of Criminal Law was not to enforce morality. On the other hand, Dablet argues that the Criminal Law should do so.
In the past, Criminal Law was based on the social values thus on the morals. Thus for an act or an omission to be punishable it had to be either an immoral action or a sin. The traditional attitude of the common law, has bee that crimes are essentially immoral acts deserving of punishment. In the early days of law, when the number of crimes was relatively few and only
1 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 4
1 General Principles of Criminal Law the most outrageous acts were prohibited – murder, robbery, rape etc. – this was, no doubt, true. But now many acts are prohibited on the grounds of social expediency and not because of their immoral nature2. Today the element of morality is not the only element that determines whether an act is to be as a Criminal offence or not. Today, the act must be directly harmful to individuals or to the collective interests. Still some immoral actions can be considered as Criminal acts but not all of them and not all criminal acts are immoral. So one can notice that there is an overlapping between these two spheres of life. But still the fact that an act is immoral does not entail that it is also a criminal act and the fact an act is a criminal act cannot obviously be considered as immoral.
As an example, one can easily mention adulatory. According to the Christian Morality this is an immoral act and until 1971 it was still considered to be a Criminal offence by the Maltese Criminal Code but today it is not any more. On the other hand, in Islamic law adulatory is till this very day punishable.
There are also Criminal acts that are considered as morally praiseworthy but are punished severally. Rebellion against any form of Tyranny is one. When a law punishes an immoral act, it does this because there are other factors that apply. Maltese law punishes the Solicitor of prostitution and not the prostitution of oneself. This does not mean that prostitution is not immoral. The same happens with abortion and with pornography. Both are considered as offences because they are a threat to social order and not just because they are immoral. This happens because law can only regulate that conduct which is externalised. Anything that remains in the human mind or hearth cannot be punished. Wanting without doing is not considered as a criminal offence but it is still considered to be immoral. Man can only take into account what he sees and hears. Thus criminal offence must be clearly defined and possible to proof, therefore envy, greed and feelings in general cannot be considered as punishable even though they are considered to be immoral.
Even if in most cases of criminal offences there is an element of immorality is not the rule. If law would be done to enforce morality, this would mean that there is only one moral system in a country, but this is certainly not true. With the advent of ethnic amalgamation morals have mixed up and changed and will continue to change. One can say that there is a plurality of morals but only one Criminal Law valid to a particular country.
If punishment is assessed accordance with the degree of moral blameworthiness, it seems to follow that it is imposed because of the moral blameworthiness3 and therefore no further justification is needed.
As regards the difference between morality and law a further idea developed. The same offence might be liable o the maximum or minimum of punishment. Morally speaking an attempt to kill and the intent of killing are as blameworthy as actual killing. However for reasons of policy, since harm in the first is less than in the second, a lesser punishment is given. This is also done to keep the persons from persisting in the same attempt. 1.1 Actus Reus and Mens Rea 4
This close relationship between morality and law developed two very important notions in criminal law which are still used today as to determine whether a person is to be held criminally responsible or not.
2 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 20 3 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 6 4 JONES, T. H. & CHRISTIE M. G. A. Greens Concise Scots Law CRIMINAL LAW (W. Green Sweet and Maxwell- Chapter 3
2 General Principles of Criminal Law
Strict liability is what used to be the rule before and what today is considered to be as an exception to the rule. This liability arises simply from the commission of the material act prohibited by the law. No particular state of mind was required and thus even an inanimate object or an animal could be held criminally responsible. The fact that the act is prohibited was enough for the agent to be punished. This concept of strict liability was also called absolute liability since the phrase absolute used to imply that no possible defence could be raised to acquit the agent. By the accomplishment of the material act the agent would be exposed to criminal liability.
Under the influence of Canon Law and Roman Law, a change gradually took place and the courts began to require proof an element of blameworthiness – ‘a guilty mind’. Today the act is not sufficient to render the agent punishable since it has to be accompanied by a guilty state of mind (both the Actus rues and the Mens rea are needed and one without the other is not useful to condemn a person). The following dictums explain this concept:
ACTUS NON FACIT REUM NISI MENS SIT REA
That is: The act alone is not sufficient to make a person responsible unless accompanied by a guilty state of mind. Where the Actus Reus is the conduct (action or omission) prohibited by law and the mens rea is the particular state of mind, which must accompany the Actus Reus. The Actus Reus is simply the act for example in the case of homicide there are three classifications. The Actus Reus is the same for all of them because the final product is that a person is killed. But the mens rea is considered to be different for the three of them. (see table 1). As one can easily notice from the table below, the Actus Reus is the same since in all the three cases the person kills another person, but the Mens rea is different. The mental intention behind each type of homicide is different. This means that the punishment will be different and if one is missing the person accused will not be considered to be guilty
Action Actus Reus Mens Rea
Voluntary The same One wilfully kills another Neglect and/or there was no Involuntary The same desire and/or was not foreseen One does not intend to kill As a result of a The same or put his life in jeopardy grievous harm but to harm
Table 1: Classifications of homicide.
Actus Reus is a notion quite simply to understand. It is an action or an omission done in breech of the law no matter whether it is voluntary, involuntary etc … On the other hand mens rea (i.e. a guilty mind) must not be understood under the common point of view. It does not necessarily imply malice on the part of the agent. Tied with this notion there is another notion:- ‘la capacita` di intendere e di volere’. In the case of Euthanasia the agent bears no malice. On the contrary, most of the time this is an act of love, to relieve the person concerned from the suffering. Still according to our Criminal code and other codes, Euthanasia is considered to be a wilful homicide since there is still the element of awareness
3 General Principles of Criminal Law and thus of willingness. On the other hand, if a person had no choice, that action could not be attributed to his person.
2 The Distinction between Criminal Offences and Civil Wrongs
Offences or wrongs
Criminal wrongs Moral wrongs Civil wrongs
Diagram 1: Division of Wrongs
While moral wrongs are wrongs contrary to morals, criminal wrongs belong to a much wider class of legal wrongs i.e. wrongs contrary and in violation of the law. But apart from criminal wrongs there are also, civil wrongs and constitutional wrongs. In this section we will only see through the differences between criminal wrongs and civil wrongs. The thin line that there is between what is considered to be a public offence or a private offence makes our job some what difficult, even though many attempts have been made. A problem that used to arise in primitive law was why criminal wrongs are punishable, and civil wrongs are only offering payment or remedy for any damages. 2.1 Civil Wrongs
• Civil law is what I call the law of the private, since it regulates the private relations between subjects without the direct involvement if the police and are prosecuted only by the complaints of the injured parties.
• This is usually of a private concern where one part accuses the other in front of a judge wanting remedy, payment of damages or enforcements of rights (e.g. John Aquilina vs. Paul Camilleri). If one does not pay the fine for civil offence this will result in the confiscation of property of the accused. These will be sold by means of an auction ordered by the courts and the money earned will be used for the payment.
• It is made up of legal rules that define and enforce right (Article 337 (3) Criminal Code Chapter 16) and duties of the person in relation to other persons.
• It also provides for a system of remedies and payment of damages when these rules are breeched by one subject at the expenses of the other. For example: person A has bound itself into a contract where he sells a car to B. A fails to deliver the car to B and therefore because of the written contract B can oblige A to deliver the car by civil law.
• These wrongs are subject to the civil procedure and are dealt with in Civil Courts.
• Still there are some Civil Wrongs that are liable to punishment (civic penalties). These penalties were considered to be as a remedy if it persuaded the debtors to pay as in the case of the non-performance of a contract.
4 General Principles of Criminal Law 2.2 Criminal Offences (Wrongs)
• Criminal law is the law of public relations since it is concerned with the relations between the subject and society at large.
• A criminal wrong is prosecuted by the authority, which represents the common good and society as a whole i.e. the state that represents the public.
• Criminal wrongs are prosecuted ex ufficio by police and do no need any complaints.
• Criminal law is made up of legal rules concerned with acts and/or omissions which are contrary to public order and society, and that at the same time disturb the entire community.
• Criminal law is concerned with punishing the offender and not with remedies and payment of damages to any party (something that happens in Civil law). In these cases it is not a subject that accuses another subject but the police on behalf of the Republic that try him in front of the courts, accused of committing a criminal offence (E.g. Police vs. Aquilina Longino).
• In these cases the competent court is a Criminal Court and before and during the trial Criminal procedure is used.
• In the area of criminal law, we also have an enforcement of rights where the court may oblige the offender, besides punishing him, to remove any nuisance being caused: “In the case of any contravention, the court, besides awarding punishment, shall order the offender, where the occasion so requires, to abate the nuisance arising from the contravention...” (Article 321(1) Chapter 10 – Code of Police law).
• If one does not pay an ammenda he is liable to detention while if it is a multa then he is liable to imprisonment.
This distinction is quite a clear one today, but in primitive law what today we describe as criminal was dealt in civil law. Thus in our law there may be overlapping due to these changes. Another approach is the Mala in Se test: a criminal wrong is something that is intrinsically evil and immoral e.g. rape, homicide, theft etc… However there are criminal offences that neither evil nor immoral as in the case of illegal parking. Therefore one must say that this test does not give us the full picture. Apart from this, there is the idea that a criminal wrong is of greater harm than a civil wrong. Example can be given that it may be the complete opposite. E.g. stealing a loaf of bread is a criminal wrong and bankruptcy is a civil wrong. Thus this is not a good definition of a criminal wrong because a definition should only define one thing at a time. Other approaches are based on whether there is a remedy or not of harm. If harm can be remedied other than by punishment, then the wrong, would be a civil wrong, if not then it is a criminal wrong.
Problems may arise when the two types are mixed. The following are example:
Involuntary Homicide by reckless driving: - This very same action is a criminal action and a civil action. Thus since it is a criminal wrong, it is liable to punishment and since it is a civil wrong it also gives the victim a right to compensation.
5 General Principles of Criminal Law Fraud:- If a person defrauded another person of his property it is both a criminal and a civil action since Fraud is both a criminal and a civil wrong.
Actually there is no real distinction between criminal and civil wrong, only the state gives a different and particular treatment to that particular wrong.
Reference: • The Criminal Law Review • Criminal Code Article 221, 225-226 • Perjury Article 104-107 • Calumnious Accusation Article 101
3 Definition of criminal offence (Carrara’s Definition)
According to Carrara the nature of a criminal wrong is:
“L’INFLAZIONE DELLA LEGGE DELLO STATO PROMULGATA PER PROTEGGERE LA SICUREZZA DIE CITTADINI DA UN ATTO ESTERNO DEL UOMO POSITIVO O NEGATIVO MORLAMENTE IMPUTABILE”
“THE VIOLATION OF THE LAW OF THE STATE PROMULGATED FOR THE PROTECTION OF THE SAFETY OF THE SUBJECTS BY AN ACT OF MEN WHETHER OF COMMISION OR OMISSION FOR WHICH THE AGENT IS MORALLY RESPONSIBLE”
This definition applies to the more grievous criminal wrong. Thus, a criminal wrong is the purpose for which a criminal law was enacted, for the safety and protection of the society. Parts of the definition of Carrara are true also of civil procedure. 3.1 Analysis of Carrara’s Definition
3.1.1Violation of the law of the state
This leads us to examine two very important maxims; Nullum Crimen Sine Lege and Nulla Poena Sine Lege. These two maxims mean that an act cannot be considered to be illegal, therefore in Violation of the law, unless it results from the law. The second one means that the nature of the punishment and its quality, must also result from the law and that it must remain within the margins laid down by the law. To have a better perspective of this one must also tackle this with the help of the concepts of Limitation of Time. A violation of the cannon law is also a violation of the law but it is not a violation of the law of the state. Similarly if a person does not honour a contract, he is not committing a criminal offence since he is not in breech of any law of the state, but the law of the parties concerned.
3.1.2Promulgation
It is the enactment and the publication of the law which gives rise to another important principle embodied in the maxim: IGNORANZIA JURIS NEMEN ESCUSIA (Ignorance of law is no excuse). Since this principle is rather one of good policy than of justice, it is very debatable whether this may apply every time especially when a country has very strange laws that Tourists don’t know etc…
6 General Principles of Criminal Law
3.1.3For the protection of the safety of the subjects by an act of men whether of commission or omission The act is very important to proof. This because it is impossible to perceive a law made by human beings that can judge inside feelings or thoughts. First of all these are not seen by the human eye or heard by the human ear, unless these materialize into acts, secondly if they remain in the human mind they are of no harm to the community. Therefore for an act to be punishable, it must be also an act of men.
3.1.4For which the agent is morally responsible What makes the guilty mind (mens rea), is the knowledge of violation. The agent must have a choice.
The criteria which are essential for Criminal offence: • The gravity of a conduct; • The particular conduct must be capable of definition; • The conduct must be capable of proof; • Conduct must be capable of punishment without undue interference; • Public opinion: Useful to set whether an offence is criminal or not, since crimes disturb the public opinion; • The conduct must be as such as not to be repressed without the use of punishment.
3.2 Criminal Charges as understood by the European Convention on Human Rights
See chapter 319 of the laws of Malta
4 Classification of Criminal Offences
The classification of offences can only fall under one or the other of each of the following categories:
1. Omission and Commission 2. Formal or Material 3. Simple or Complex 4. Instantaneous or Continuing 5. Crime or Contravention 6. NOTE: CHECK FOR INDITABLE AND SUMMERY OFFENCES AND TRIAD ETHER WAY ( LESS THEN 10 YEARS IMPRISONMENT ETC. )
Neither of the classes is self-contained and therefore an offence can fall under various classifications. An e.g. is the following: Wilful homicide (Article 211 (2)) is: Material, instantaneous and a crime; Calumnious accusation is: formal, can be also instantaneous and is a crime.
7 General Principles of Criminal Law 4.1 Omission and Commission
Offence of Omission is when someone does not do what he was obliged to do by law, while an offence of Commission is when the wrong-does does something which is prohibited by law. 4.2 Formal and Material (Reati Formali u Reati Materjali)
Formal offences (conduct crimes) cannot be an attempt and it is an offence, which is completed by the mere act or omission constituting the violation of the law, independently of fact whether the result sought by the offender is achieved or not. Such act or omission is sufficient in itself to complete the offence (Manzini, ‘Trattato’ p.563). Thus, for example calumnious accusation (Article 101) is a formal offence because the crime is complete as soon as the offender maliciously lays infamation against another person whom he knows to be innocent, perjury (Article 104) and defamation (Article 252) (in all three examples the mere act completes the offence).
For a Material offence (result crime) the result of the act or omission is essential. The offence cannot happen without the actual happening of the injurious event which alone constitutes the material violation of the law. Completion requires the accident of the event, which, though the offender may have done all that he could to bring it about, may not materialise in consequence of circumstances independent of his will. Thus homicide is a material offence since a person must be killed so that an offence is perpetrated. Other examples of material offences are bodily harm (Article 214), rape and wilful damage to property.
This distinction has particular importance in connection with the doctrine of Criminal attempt. (Refer to Criminal appeal ‘The Police vs. Said’, 23rd January 1939, Vol. XXVI, PART iv, p. 768) 4.3 Simple and Complex (Semplici u Komplessi)
An offence is simple when it violates one single right (e.g. theft: the right of property is violated) and Complex when it violates more than one. For instance when an act or omission constitutes an offence under two of more laws of provisions of the law e.g. exportation of foreign currency without permit: offence against Customs ordinance (Chapter 37) and offence against Exchange Control Act; carnal offence against a minor: an offence of rape and the offence of defilement of a minor. When this occurs one has to determine whether a major offence absorbs the minor offence. (Carrara)
According to Manzini a simple offence is one completed by a simple act e.g. oral defamation (calling someone a thief). A complex offence requires a series of acts in order to be completed e.g. wilful homicide (obtain a weapon, observing the victim, shooting etc…)
Carrara’s distinction is of practical importance in connection with the theory of concurrent offences. As defined by other writers it has a practical importance in relation to the doctrine of criminal attempts. Regardless of this Manzini says that, “the notion of an attempt is inconceivable in respect of a simple offence” (as defined by him.)
8 General Principles of Criminal Law 4.4 Instantaneous and Continuing offences (Instantanji u Permanenti)
These two types of offences have a considerable practical importance both in relation to substantive law as well as in relation to adjective law (Law of procedure), and especially in connection with the application of transitory provisions, with the age of the offender and with prescription5.
To start with one must make a slight distinction between the continuance of the effect and the continuance of the offence. Although there may be the former like in the cases of homicide, bodily harm, theft, rape, defamation wilful damage etc. one still considers the offences as an instantaneous one, even though the effects produced are permanent. Instantaneous offence is an offence that is completed as soon as the act or omission in violation of the law is perpetrated. The effects may or may not continue after the perpetration of the act or omission constituting the offence: but if they continue, it is not because of any further act or omission, but merely as a result of such original act or omission: in other words, the continuance of the effect is not occasioned by the repetition or the continuance of the wrongful act or omission by the violation of the right or interest protected by law.
We must also sort out the confusion that there may arise between Continuous and Continuing offences. The distinction between the two is very important when it comes to time prescription as it is laid down in Article 691 (1) of the Criminal Code that states: “With regard to a completed offence, the period of prescription shall run from the day on which the offence was completed; with regard to an attempted offence, from the day on which the last act of execution was committed; with regard to a continuous offence, from the day on which the last violation took place; and with regard to a continuing offence from the day on which the continuance ceased.
Moreover in Article 18 of the Criminal Code we have a definition of what is Continuous that states:
“Where the several acts committed by the offender, even if at different times, constitute violations of the same provision of the law, and are committed in pursuance of the same design, such acts shall be deemed to be a single offence, called a continuous offence, but the punishment may be increased by one or two degrees.”
On the other hand continuing offence is one which consists in a state of things subjectively and objectively and uniformly contrary to law in every moment of its duration. Here the injury or the violation continues and is repeated uninterruptedly even after the completion of the act or omission giving rise to the offence so long as the said state of things continues. Thus the continuing offences are constituted of these two very important elements:
1) a wrongful conduct protracted uninterruptedly and without any change in its constituent elements for a length of time; 2) a state of things contrary to the law of the violation of a right or duty likewise continuing without interruption and uniformly, co-extensively with the continuance of such wrongful conduct.
For example building without permit is a continuing offence. On the 1st November a villa is completed without permit. The building is demolished on the 1st January. The offence is
5 The law laid various time limits applied to awarding punishments, varying from three (3) months to twenty (20) years. The trial cannot start outside the time bracket constituted by law.
9 General Principles of Criminal Law continued for 2 months. Thus it is a continuing offence. The infringement is continuing, but it is still the same offence. This act must be uninterrupted. An act which is in violation of the law, which is protracted uninterruptedly and without change (uniformly). A state of affairs or things in violation of the right or duty which is also protracted over a period of time uninterruptedly and uniformly con-comitantly (parallel) with the continuance of the wrongful conduct e.g. possessing an illegal thing together with time you possess the thing.
In a few words Continuous offence is the repetition of the same offence e.g. stealing a large sum of money but taking few at a time, while continuing offence is one which is completed when the act of omission ceases e.g. illegal detention. On the other hand Instantaneous offences are those that are completed as soon as the act or omission is perpetuated e.g. homicide, theft, rape, bodily harm etc.
When the fact in violation is continuing fact, the violation is being continuously renewed until the violation is removed. The period of prescription starts to run when the violation is removed and not when the conduct has taken place. In the case of Instantaneous offence when for example there is the taking off of life, the period of prescription starts when the life is extinguished. The ceasing of life is the continuing effect of this offence.
Police vs. George Zammit (27/5/39)
Zammit was accused of building without a permit. The fact constituted in constructing a roof over a yard which had to have access to air. Since this was the right the law wanted to protect, the roofing over was a violation of the law. The violation could only be removed when the roof was removed and then prescription runs after the removal of the violation, the criminal act as not time barred and the court could decide on the merits of guilt or otherwise.
Police vs. Albert Bartoli (Vol. XXX part IV page. 572 – Court of Criminal appeal)
Bartoli was accused of having commenced the construction of a building abutting on a street, before such street was levelled to the satisfaction of the Director of works. The fact as described in the summons was not a continuing one and the criminal action had been time barred. Since he committed something at a particular moment in time, the fact was not of a permanent nature and thus it was an instantaneous offence and the criminal charge was time barred. (This occurred since the law prohibits the starting of the building before the street is levelled and therefore since Bartoli started building the offence was completed.
Police vs. Emmanuel Spiteri (28 th March 1960 Mr Justice J. Flores – Court of Criminal Appeal)
The Court made an important annunciation of principle where the offence is one of omission. Where the violation of law consists of an omission, a time limit is laid down within which to conform with the law in order to determine whether the offence is instantaneous or continuing. One must first examine whether the time limit is an essential one. One will have to determine whether the lapse of the time limit would result in the definitive prejudice of the right protected by law or whether the lapse of time would simply be the commencement of the omission. The offence is instantaneous in the first case and a continuing offence in the second.
Another important criteria to determine whether the offence is continuing of not could be checked by seeing whether there it is within the power of the offender to voluntarily bring at an end the state of affairs contrary to the law. In the case of wilful homicide, the agent can do
10 General Principles of Criminal Law nothing to bring the violation of law to an end. In a case of a continuing offence, it must be possible that this occurs.
In the case of an offence of omission, as an example, the law gives you a period of 30 days within which to file the income tax return and you fail (omit) to do so. Does prescription commence at the end of the period of time? It can be argued that law wants to make sure that you file it. The lapse of time limit would be indicative of the commencement of the commencement of the omission and thus this is a continuing offence. When you do file the income tax return, you remove the omission.
Police vs. Joseph Mugliette sive Mugliett (13 th January, 1977 – Court of Criminal Appeal)
The offence consisted in erecting a building abutting on a government street before paying to the director of works the share due by way of road contribution. In this case we would still have to examine the right protected by law. That is if all construction are covered by building permit then this would be a continuing offence. However if the court decides that the law wanted to prohibit the commencement of the building, this would be an instantaneous offence (an offence of omission – the law requires you to pay before starting something). In the case before it, the obligation consisted in making payment before erecting the building. Once the offender failed to pay, the right protected by law was definitely prejudiced. There was nothing the offender could after having commenced the building, thus it was an instantaneous offence.
Police vs. Francis Mallia (14 th March 1991 Mr Justice Godwin Muscat Azzopardi)
In order to assess whether the offence is of a continuing nature the court, looked at the nature of the anti juridical fact (the right which the la waned to protect) and the physical conduct. In the case of a permanent disfigurement, there would be an instantaneous offence with permanent effect.
Thus in a case of a building without permit, it would be a continuing offence because the t of the agent had produced an anti juridical state of affairs contrary to the law which continues to subsist until such time as the anti juridical effect has been removed (by demolition / valid building permit). The criteria by which to establish whether an offence is instantaneous or continuing: - The elements of the offence - The purpose of the legislation - The juridical effect caused to be achieved by parliament (to seek that all buildings are in conformity with the legal requirement). 4.5 Crimes and Contraventions (Delitt u Kontravenzjoni)
Other Codes for example the French and the English divide offences into three (3) classifications. On the other hand our Criminal Code divides offences into crimes and contravention: the more heinous offences are crimes and the less heinous are contraventions. This division is stated in Article 2 of the same code that says: “Offences are divided into crimes and contraventions.”
11 General Principles of Criminal Law 4.5.1How to distinguish between the two
The code does not give us a definition of crimes and contravention and nether does it distinguish between them.
4.5.1.1 The Ultimate test: Nature of Punishment test
However in Article 7 of the Code we have the punishments due to crimes and contraventions. This helps us to identify the nature of the offence and although this test proves very useful there are exceptions to the rule. (1) Saving the exceptions laid down in the law, the punishments that may be awarded for crimes are (a) imprisonment; (b) solitary confinement; (c) interdiction; (d) fine (multa). (2) Subject to the provisions of article 53 or of any other special law. The punishments that may be awarded for contraventions are - (a) detention; (b) fine (ammenda); (c) reprimand or admonition. (3) The expression "punishments restrictive of personal liberty" includes the punishments of imprisonment and detention.
Case law
Police vs. Cataldo Vella 27/11/43
In those days disposing of Agricultural products without authority of director of agriculture or one of his representatives was an offence. Is it a crime or a contravention? The court referred to the punishments and the punishments laid down by the statue were fine (multa) or imprisonment and therefore it was considered to be a crime, According to Article 7.
4.5.1.2 Other Distinctions
Further more one can distinguish between the two by looking in which part they are listed. Our code expressly distinguishes between crimes and contraventions since the first are found in Part II of Book First of the Code (of crimes and punishments) whilst contraventions are found in Part III of the same book (of contraventions and punishments). Still one cannot simply identify all offences by giving a look solely at the punishments, since we find minor cases where the offences are considered to be crimes but the punishments are those of contraventions.
An example is Article 16, The Damaging of Monuments: “Provided that the court may, in minor cases, apply any of the punishments established for contraventions.” Although this Article is found it Part II of Book first of the Code and therefore it is considered to be a crime, in minor cases the punishment is that for contraventions. The same happens with Slight bodily harm Article 221(3)(b). Other examples are: Article 226(1) (c) – Involuntary bodily harm ” 231 (1) (d) (ii) – Excusable bodily harm ” 232 (c) – Wilful bodily harm
12 General Principles of Criminal Law ” 237 (d) – Homicide or bodily harm in accidental affair ” 252 (2) – Defamation ” 259 ” 325 (d) – Spoil, damage or injury in general Article 326 (2) – Damage to water pipes
Besides, there are also criminal offences that are listed in other statues. In most of the cases these are identified either as one or the other. Very often the law does not tell us specifically: it simply lays down the punishments without specifying the nature of the offence. Examples of these are the following: • Chapter 10 - Code of Police law in Article 318 states that: “Any person who commits any breach of the provisions … shall be guilty of a contravention” • Chapter 41 – Spirits Ordinance clearly lays down that all criminal offences are crimes in Article 88 (1) • Chapter 72 – Beer Excise Duty Act in Article 24 (3) does the same as in the previous case
Another distinction is based on the relative seriousness of the act. If the act is of a serious nature, then it is a crime. If on the other hand the act is not then it is a contravention. However the same act may change its ‘state’ like in the next case. Does this mean that it became more serious? In my opinion for the legislator this may become a more serious offence and therefore from this, one can conclude that it is up to the legislator of the time, according to circumstances, to decide how to classify offences.
The same act can be considered to be both a crime and a contravention depending on the degree of harm caused. In these cases these tests would not apply. There have been cases where the same act, at one moment in time was considered to be a contravention and at a subsequent moment in time, the same act was considered to be a crime e.g. failure to pay NI contributions. This was considered to be a contravention until 1979. This can be seen in the case of The police vs. J. Saliba (1985)
4.5.1.3 Mala in se and mala prohibita
The problem is when the offences arise from other statutes than the criminal code and that same statue does not specify whether the offence is a crime or a contravention. There are many so-called ‘tests’ that help us to identify and classify these into their appropriate classification or else one tries to do so. One of them can be called the mala in se test
According the this test crimes are acts which are mala in se, that is inherently wrong and cause actual harm. Contraventions on the other hand do not cause actual harm. They are committed without wrongful intent but still have a harmful tendency. These are most of the times mala prohibita6.
However this would still not answer certain questions as for example that there are certain crimes which do not cause actual harm e.g. conspiracy. It was argued that in the case of an attempted crime when a harm is not caused, society is still exposed o certain dangers and harm and since crimes and contraventions are punished so to prevent a potential threat to public order, even attempts may be considered as crimes.
6 Mala prohibita – when an offence is so, simply because it is laid down by law, most of the times these are contraventions.
13 General Principles of Criminal Law Moreover some contraventions are still considered to be intrinsically wrong - mala in se. Article 338 (y), (aa), (bb), Article 339 (d), (g), (j) and (l) are all contraventions7 but are still an intrinsically wrong act.
4.5.2But why is it important to distinguish between the two?
Knowing to which category the offence belongs is very important for several reasons of which the most important are the listed below.
4.5.2.1 The Corpus Delicti The Corpus Delicti is the object or objects which help in the commission or the omission of the offence e.g. a knife to kill, a car to escape etc. In case of any crime there is the automatic forfeiture of the Corpus Delicti while for contraventions it has to be expressly stated in the law. This is the case in the Explosives Ordinance (Chapter 33) Article 40, which specifies that although some of the offences are to be considered as contraventions the Corpus Delicti is forfeited as well. The consequences are laid down in Article 23:
(1) The forfeiture of the corpus delicti, of the instruments used or intended to be used in the commission of any crime, and of anything obtained by such crime, is a consequence of the punishment for the crime as established by law, even though such forfeiture be not expressly stated in the law, unless some person who has not participated in the crime, has a claim to such property. (2) In case of contraventions, such forfeiture shall only take place in cases in which it is expressly stated in the law. (3) In the case of things the manufacture, use, carrying, keeping or sale whereof constitutes an offence, the forfeiture thereof may be ordered by the court even though there has not been a conviction and although such things do not belong to the accused.
4.5.2.2 Attempts (1) Whosoever with intent to commit a crime shall have manifested such intent by overt8 acts which are followed by a commencement of the execution of the crime, shall, save as otherwise expressly provided, be liable on conviction: (a) if the crime was not completed in consequence of some accidental cause independent of the will of the offender, to the punishment established for the completed crime with a decrease of one or two degrees; (b) if the crime was not completed in consequence of the voluntary determination of the offender not to complete the crime, to the punishment established for the acts committed, if such acts constitute a crime according to law. (2) An attempt to commit a contravention is not liable to punishment, except in the cases expressly provided for by law. 9
4.5.2.3 Vicarious liability In the case of any contravention committed by a person who is under the authority, control or charge of another person, not only the person committing the contravention but also such other person shall be liable to punishment, if the contravention is against some provision the observance of which such other person
7 Since they are found in Part III, Book First – of Contraventions and Punishments 8 Not hidden 9 Article 41
14 General Principles of Criminal Law was bound to enforce, and if the contravention could have been prevented by the exercise of diligence on the part of such other person.10 This section of the law applies only to contraventions e.g. where owners lease out cars
4.5.2.4 Recidivism A person is not a recidivist if a crime is followed a contravention and vice versa. When an other offence is committed within the 10 year period after conviction the person will be punished for a punishment one degree higher than the punishment prescribed by law for that offence. When he relapses (within 3 months) after he is convicted for a contravention he may be sentenced to detention for a term not exceeding two months, or to a fine (multa), or to imprisonment for a term not exceeding one month.11
4.5.2.5 Prescription The maximum prescription for a contravention is three (3) months but for a crime it can go up to twenty (20) years. The minimum limit is three (3) years. (See Article 688). It is also important to consider the rule laid down in Article 692 – this rule applies only to crimes where the criminal action is not time barred.
Infringement - the commissioner can only penalise the offender in financial ways not imprisonment and such. These ere introduced so as to relieve the courts of petty offences which are penalised buy commissioners of justice instead of magistrates (1988 chapter 291 of the laws of Malta) NOTE; these are not formally a classification of criminal offence. They wanted to de-penalise these petty (not so much of a grave situations). 5 Interpretation
5.1 The making of a new law
One must understand how a law is drafted, discussed and enacted. The following steps of procedure are followed: • The legal office of the Republic receives instructions on the kind of legislature wanted • The Attorney General office (AGO) is given the policy and the objectives which the minister intends to reach • The AGO makes research and drafts the bill • This draft is approved by the cabinet and then published on the Government Gazette (GG) for public scrutiny. • First reading in parliament – reading of the title • Second reading – limited to principles and the policy behind the bill • Committee stage – parliament proceeds to examine in detail various provisions of the bill and makes amendments12. • Report stage – committee prepares a report to the whole house to be presented to the speaker • Third reading • Approval of the bill • Assent by the president and bill becomes a law
10 Article 24 11 Article 53 12 This Committee consists of certain members of Parliament
15 General Principles of Criminal Law • The law is now published on the GG for it to become effective since unpublished law don’t have any force as a law. In some cases law will not come into operation until special reservations are made for the law to come into force on a particular date. There could be also provisions for the law to have a retrospective effect. The date on which the new law comes into effect is not on publication, not in the future but in the past (Not in the case of Criminal Law). Note see Article 72 subsection 4.
5.2 Delegated legislation or subsidiary or secondary legislation
The Devolution of powers by governments is evermore increasing in time; it is a process that leads to a decentralisation of power. But for this system to work properly one must provide these bodies with certain powers – given to them by parliament so to decide and work almost totally on their own – delegated legislation. This has force of law under authority of a parent legislation (An act of parliament) that created the same body. For these to take decisions there isn’t the need of parliamentary debates. These subsidiary organs don’t have full legislative powers and therefore acts within the parameters specified by parliament. The delegated legislations are made up of orders, regulations, byelaws made by the minister responsible and even the corporation. Criminal offences are also subject to this kind of legislation. Examples of these bodies are: University, Malta Tourism Authority, MEPA etc.
5.3 The Structure of a Bill (Abbozz ta’ liġi) or as he said it an act of or in parliament.
• Long title (not commonly used in Malta) • Enacting Formula • Short title • Enactment date (when not present there is an automatic enactment with publication) • Definitions (Important for interpretation of law) • Principle provision • Administrative provision • Transitory provision (situations which had arisen under the old law and which continue to persist in the new one) very important look them up if they exist • Repealing provision (provision repealing old legislation) • Schedules (annex to main legislation)
5.4 The need for interpretation
The application of law is not automatic; it is first interpreted. The scope behind interpretation is to determine the exact meaning of the legal rule and to ascertain the real intention and will of the law in relation to a determinate case. This takes place by an analysis of words employed by the legislator. The need for interpretation may arise when there is lack of clarity and uncertainty in laws. This could be avoided if laws (i) were written in general terms to include all foreseeable instances, but (ii) with the necessary detail to maintain clarity and avoid vagueness. Most of the time one would find that countries either adopt the former or else the latter. For instance in civil law countries like Italy, Spain and France much discretion is given to courts in interpreting laws which are concise and contain general terms. On the other hand in Common law systems acts of parliament are very detailed and also very precise. Even though it is the duty of the individual to know the law, it is also a duty of the legislator to make law as clear as possible but although there are many efforts to achieve clarity there are certain limitations. Uncertainty could arise from any unforeseen social
16 General Principles of Criminal Law conditions which might have arisen, e.g. ‘car’ was included under definition of ‘vehicles’ when the only driven carts existed.
5.4.1Various types of uncertainty
5.4.1.1 Lexical When the words employed have more than one meaning. The true meaning is to be found by associating the word to the relative context within which it is to be found. E.g. does the word vehicle include also aeroplane
5.4.1.2 Syntactic When ambiguity arises from the structure of the sentence construction and punctuation mark.
5.4.1.3 Contextual The relationship between words phrases and sentences using the same words for different meanings. This is resolved by looking at the purpose of the law.
5.4.1.4 Linguistic uncertainty This may arise as a result of vagueness.
5.4.2Various types of Interpretation
5.4.2.1 Doctrinal Interpretation Doctrinal interpretation is based on the opinions of writers and jurist and has nowadays an indirect influence on the application of the law. In Roman days, on the contrary, the theoretical opinions of jurists were a direct and objective source of law.
One must not confuse those writings and opinions of writers and jurists with legal norm which are still found in text books but were and still are recognised and applied by the courts and now constitute a jus acceptum - legal norms of binding effect.
5.4.2.2 Authentic Interpretation 13 Authentic interpretation is that, which is provided by the legislature itself in by means of ‘interpretation clauses” of any law, or by a comprehensive interpretation law as for example the Interpretation act of 1975 – Chap. 249 of the laws of Malta. This kind of Interpretation is binding on all: in fact it is hardly strictly speaking a form of interpretation – it is more of a definition where there the legislature writes what is the definition of a certain word or expression. The meaning given to the particular word in the statue almost complete may exclude even the obvious and logical meaning of the word or expression. Thus according to Manzini one cannot even attempt to fix a priori any rules for this type of interpretation.
This interpretation has a retrospective effect even without any express declaration for the purpose by the legislature. According to Tolomei: “Nella interpretata e` gia compresa la interpretattiva”. If on the other hand interpretation law does supply for lacunae in the law then it can be applied retrospectively. This also applies to all facts and transactions where there hasn’t been a ‘res judicata’ unless interpretation law so provides. This helps to show the meaning of the law as it always has been looked at . the res judicata is the final saying or judgement on the particular law.
13 See Act XX of 1991
17 General Principles of Criminal Law 5.4.2.3 Juridical Interpretation (Interpretatio Judicalis)
This is the interpretation of the law by the Courts in their judgements. The words (litera legis) are interpreted so as to acquire the meaning of the laws and understand their relevance for the particular cases that come before them. Although some times laws are quite easy to understand an interpretation is also required since the will of the legislature is most of the time abstract and the law must be adapted to concrete cases, thus it is in the first place, necessary to determine its precise meaning and import.
5.4.2.4 Declaratory Interpretation
Although some of the words used by the legislator mean two of more things at the same time, the cannons of interpretation may establish that one of such meanings, answers the intention of the legislator. Such interpretation may be narrow (stretta) or wide (lata). On must be make attention not to mix these with restrictive or extensive. Although these seem to be the same and one thing( in the extensive and restrictive there is only one legitimate meaning but then this meaning can be wide or narrow), they are very different and for this reason many tend to mix them up. While the latter couple is changed either one way or the other so as to meet the intentions of the legislator, declaratory interpretation is a way of choosing between two (narrow and wide). In fact Manzini says: “The proposition that penal laws must be construed narrowly is wholly mistaken, because it confuses the declaratory interpretation with the question of the extensive and restrictive interpretation.”
Choosing between the wide and the narrow meaning is not simply a question of tastes or liking. Certain factors have to weighed and analysed before choosing which of the two fit the intention of the legislator.. Of course the choice as between the wide and narrow meaning is possible only were both fairly fit the expression. Moreover the expressions of a given provision are to be interpreted in either way according as to whether the law intended to use the in the one or the other, independently of the nature of the provision. When there is an uncertainty whether to use one or the other the “In dubio pro reo” rule is adopted. It is explained further down in the notes.
5.4.2.5 Extensive and Restrictive Interpretation (estensiva a restrittiva)
An extensive interpretation is one which is widened to make it meet the intentions of parliament, while a restrictive interpretation is one which is narrowed to make it correspond with the intentions of parliament.
When it comes to penal law, extensive interpretation is not allowed as it is described above. In other words, if the legislature, though intending to cover the case in question, uses language which, in fact leaves the case uncovered, the Courts should refuse to correct the language or supply the defect – Nullum crimen sine lege and nulla Poena sine lege. A provision of law which imposes any such restrictions must not be extended beyond the case which it contemplates.
None what so ever penal laws should not be interpreted exclusively in a restrictive manner, since as Manzini declares: “Fallace e` la regola, tanto diffusa nella prattica, per cui le leggi penali … dovrebbero sempre essere interpretate restrittivamente”. The court must interpret the wording of the law by using the criteria of ordinary use of language, keeping in mind the intention of the legislature. If then there are sufficient indications that words in their natural meaning are wider than the legislator intended then these should be restricted.
18 General Principles of Criminal Law On the other hand an act which the legislator did not want to punish musn’t be punished even if it falls under the parameter of law, because the will of the legislator to punish is lacking. This does not mean that one cannot extend the law in cases where the result is almost I would say absurd. For e.g. in the case of Bigamy the law says: “A husband or wife who, during the subsistence of a lawful marriage, contracts a second marriage, shall, on conviction, be liable to imprisonment for a term from thirteen months to four years.”14 This however does not mean that during the first wedding one cannot be found guilty if he / she contracts a third and a fourth marriage in the same circumstances. We know that this is not the case since parliament wanted to emend this ‘mistake’.
5.4.2.6 Literal and Logical Interpretation
Literal interpretation, also know as grammatical interpretation, regards exclusively the verbal expression of the law and it does not go beyond the litera legis. Since it is presumed that the legislature meant what it said and said what it meant, nam quorum nomina, nisi ut demonstrarent voluntatem decentis, ita scriptum est, this interpretation must precede others. In the process of grammatical interpretation words are primarily to be understood in their ordinary and popular sense unless there should be strong indication that some other meaning was intended by the legislature. Thus nec aliter a propia verborum significatione recedendum, quam cum manifestum est id senisse legislatorem – meaning that if there is nothing to modify, nothing to alter, nothing to qualify the language which the law contains, the words and sentences must be construed in he ordinary and natural meaning, given to them by usage, regard being had to the time of the enactment of the law. As was said by an English Judge: “In dealing with matters relating to the general public, laws are presumed to use words in their popular sense; ‘uti loquitur vulgus’”. None what so ever when a law deals with a particular trade, having particular meanings of certain words, then the law must b construed as having that same particular meaning, though it may differ from the ordinary meaning of the words.
In general it is assumed that no word is meaningless or superfluous unless there should appear absolutely evident. Also: (b) words importing the masculine gender shall include females; (c) words in the singular shall include the plural, and words in the plural shall include the singular;15
When construing words one cannot do so by analysing single words on their own. One must analyse: the whole context in which these are used, and also the scope and the ideal which that particular law or section is striving for. According to Du Pareq L.J. in “Bucher vs. Poole Corporation” (1942) (2 All E.R. 572): “It is, of course, impossible to construe particular words in a statute without reference to their context and to the whole tenor of the Act.” I say that law should be understood through interpretation as a whole and not fragmentarily.
When the language is not only plain but admits of but one meaning one must not beat around the bush trying to find other meanings, since it generally accepted that the specified meaning is the one which must be followed. In re, “The Police vs. Vella” (Cr. App. 27 xi 1943) the court said: “Where the language of the enactment is clear, no interpretation is permissible which is inconsistent with the clear meaning of the expression: for the court cannot substitute its own judgement for the will of the legislature.”
14 Article 196 of the Criminal Code 15 Interpretation Act 1975 Article 4 (b), (c)
19 General Principles of Criminal Law Logical or purposive interpretation is that which almost tends to disregard the meanings of the single words, to seek the true intention of the legislature. In other words it seeks to determine the actual intention enshrined in the law in relation to the apparent intention resulting from the words.
A principal idea of logical interpretation is that language is rarely perfect as to be absolutely “plain and unambiguous”. Thus it is difficult for the legislature to say what they mean and don’t mean what they say. According to Maxwell: “If a literal meaning has been given to the laws which forbade a layman to ‘lay hands’ on a pries, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who bled a person in the street to save his life would have been liable to punishment.”
There are times when the litera legis is not conclusive. This occurs when the letter of law is logically defective on account. This results when the law: • Is ambiguous - words meaning more than one thing; • May be inconsistent - when the law has no meaning and certain parts contradict others; • Or even more it may be incomplete – it may be neither of the two mentioned above but has lacunae which prevent it from expressing any logical idea. • May lead to a result so unreasonable that it is self-evident that the legislature could not have meant what it has said.
In all such cases it is obviously necessary to determine the true intention of the legislature. By using certain external and internal aids as discussed later on in Section 6.4.3 one can solve these defects.
When the true intention of the law has been duly ascertained, such intentions ought to prevail over any inadequate or imperfection of the letter of the law: “scire leges non est verba earum tenere, sed vin ac potestatem.”
In civil law, the courts will reject a strict literal ad grammatical construction which leads to manifest contradiction of the purpose of the enactment, or to some inconveniences or absurdity, hardship or injustice. But in Criminal law the position is somewhat different in certain important respects.
A principle which may be applied in both interpretations is Eusdem Generis. Find explanation of the term.
5.4.3External and Internal Aids to interpretation
When the law is not conclusive for the reasons mentioned in section 6.4.2.4.2 the following external aids should be used: a) The aim and object of the law (ratio legis) – the principles inspiring it and the mischief it is punishing; b) The historical legal background – the state of law before the enactment to be interpreted was passed; c) The parliamentary history of the law – the bills (abbozzi tal-liġi), discussions and the reasons for which it was enacted; d) Comparative law – comparing and contrasting the laws that may have influenced the making of this particular enactment; e) Foreign Commentators and case law – Keeping in mind difference between domestic and foreign legislations.
20 General Principles of Criminal Law According to the English Law, parliamentary debates are not accepted in making out interpretation of the law so as to avoid exam of unnecessary material. In actual effect judges refer to the debates without stating so, in order to back judgements and determine the mischief parliament wanted to punish.
Contrary to this in the Maltese system, there are no restrictions. Judges refer to the bill and to the enacted law to find the exact will of the legislature. One must also note that there is no Stare Decisis16 in Malta.
Internal Aids are those that may be found in the act itself. The following are all internal aids that may help in the interpretation: a. The statue itself – one must read the statue as a whole (more than anything this is a principle) b) Long title – the principle behind the law c) Short title d) Marginal notes – these do not form part of the law itself. Great care must be taken when referring to them as parliament might have made some relevant changes to the law without altering these marginal notes. e) Headings – neither part of the law not an internal aid. They assign titles to various sections of the law which become easier to interpret when keeping in mind these headings. For eg in the criminal code there is a heading that says “Crimes against public trust ). f) Punctuation – Even though this is important, one must not make the mistake of not giving the necessary weight to substantive law and give it instead to the punctuation. g) Interpretation Clauses – These are important in Authentic interpretation and almost decisive to the issue. These often start with unless the context otherwise requires. h) Schedules annexed to the act These do not alter or enlarge the ordinary meaning of the words but are used when logical interpretation is approached
5.4.4In dubio pro reo (Interpretation in case of doubt)
In dubio pro reo and Nullum crimen sine lege are very much related. This means that when the court a have a doubt regarding whether the accused is guilty or not, they decide in favour of the tried person. This arises since one cannot be found guilty of a crime that is not clearly specified in the law, and therefore when the court fails to point out clearly a mischief that the legislature wanted to prohibit, it decides in favour of the accused. Declaratory interpretation.
5.4.5Analogy
Analogy is not strictly a form of interpretation; in fact it presumes that the case in question is not even cover by a legal provision. Law is the regulation of human relationship and behaviour. Since the beginning of last century these aspects are continuously changing and thus law has to be updated provided for every change so that it covers all human behaviour. Even though law tends to completeness problems may arise ever since human relationships change, laws don’t.
The scope of Analogy is to supply these omissions17 that there may arise from ‘the lack of swiftness’ so to say of the legislature. It a dispute cannot be decided with reference to a precise provision of law governing the case, regard is had to provisions which regulate
16 Stare Decisis is when a Judge is bound by decisions taken in superior Courts or in Courts of the same level 17 Also known as lacunae or “casus amissi”
21 General Principles of Criminal Law analogous18 cases. If there isn’t any provision which may regulate this then regard is given to the general principles of law. The judge in the civil court is obliged to decide either way and therefore he cannot abstain simply because the law is silent. In these cases one can also decide on other countries decisions and laws: “Ne` potranno (i giudici) servirsi di veruna arbitraria quante volte non sara` regolata da quello che s dipone dale leggi municipali, ed in loro difetto dale eggi comuni, e ne casi controversy e nei’ dubbi dale opinioni abbracciate nei supreme e piu` accreditati Tribunali.”
In all civilised systems of positive law analogy is prohibited in regards to penal law. The major reason for this is that penal law cannot be extended beyond the cases expressed therein, in consequence of the following principles: nullum crimen sin lege and nulla poena sine lege upheld by Article 7(1) of the Convention of Fundamental Human Rights. Act XIV of 1987 reproduces this article as a schedule by Maltese Legislation will have to abide. According to Manzini the only way penal laws may ,be altered by a process of analogy is a process whereby “new social conditions of specific discoveries may create new juridical requirements for which it is certainly permissible to provide by adopting the existing law, but not beyond the limits permitted by the text of the laws themselves.”
This doesn’t apply to the whole Criminal Code, but only in respect of those provisions of the criminal law that create offences or prescribe restrictions and punishments. An example is Article 399(1). This Article refers to letters of evidence being sent specifically to Magistrates. Nonetheless the courts of Malta through a process of Analogy have included judges as well.
5.4.6Interpretation Cases
Police vs. Joseph Naudi
In this case a Literal method was used by the Courts of Magistrates and a Logical method was used by the Court of Appeal. First court did not find ticket inspectors as being ‘authorized persons’ to check bus tickets, they had no right to demand tickets at law – ‘nullum crimen sine lege’. On the other hand the Court of Appeal considered the literal approach as restrictive. It came about that ‘ticket inspectors’ meant di per se inspecting tickets. Moreover the duty of passengers to produce tickets immediately arose. Ticket inspectors fell under the ‘authorized persons’ definition as they were to wear a uniform when on duty. 6 Limitations by Time and Territory
Positive law, unlike the principles of Natural law on which it is largely founded, is not Immutable, Universal and Absolute. It is subject to limitations by time and by territory. This is because human laws are altered from time to time and because, as a general rule, they apply only to countries in and for which they are enacted. Also certain exceptions are made to the principle of the equality of all men in the eyes of the law. 6.1 Limitations by Time
The life of every law, runs from the date of its commencement to the date of its expiration or repeal. Its binding force is limited within the span of it period of validity. A law comes into being as soon as it is enacted in due form by the competent legislative authority. Unless, a future date is fixed for the commencement of its operation (as it is frequently done), it is at once applied by he Courts and is binding on all the citizens.
18 The ‘word analogy’ itself denoted comparison and not an interpretation
22 General Principles of Criminal Law
But natural law requires that the law should not be enforced before it has been made know. This is why continental theory requires that every law passed by the legislature and declared a law in due form, is published in the Government Gazette before It comes into operation. This is protected by the Constitution in Article 72(4) that states: “When a law has been assented to by the President it shall without delay be published in the Gazette and shall not come into operation until it has been so published, but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.”
Once having become into operation, the law is presumed to be known by everyone who owes obedience to it until the date its repeal. It must be noted that modern doctrine does not recognise that a custom contrary to law may be enough to repeal or reduce the power of a law. This can be done only by means of another new law “Lex posteriori derogat priori”. The new law which is inconsistent with the existing law takes its place. Hence there follow two important rules.
6.1.1 “Ignorantia juris neminem excusat”
However if one is ignorant of a law which has not as yet been published in the Government Gazette, and commits or omits an act which later on becomes liable to punishment by the Criminal Court, the person is not guilty of the offence. This principle is protected by Article 39(8) of the Constitution of Malta which states that: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed.” Roman writers established an exception to this principle. They thought that the crimes which, are merely an infringement of the positive law of the state should be exempted from this principle, contrary to those that naturally according to the dictates of reason, are considered everywhere and at all times inherently wrongful. On the other hand, modern legislators believe that the old law should apply ultra-actively in order to avoid injustice.
6.1.2“Lex non habet oculos retro”
According the above statement law operates for the future and not for the past. That is, one acted before the was enacted one cannot be convicted or tried. Already in Roman days, it was laid down that the laws provide for the future and not for the past. With particular reference to Criminal Liability, Ulpian wrote that wrongs should not be subjected to the punishment imposed by the law in force at the time of the trial but to the punishment prescribed by the law in force at the time of the commission of the wrong.
A problem may arise when a law is repealed or changes. (a) What happens? (b) And which punishment is applied?
(a) An apparent exception to the rule that a penal law cannot have retrospective effect occurs where a new law enacted after the commission of the offence is less severe or more advantageous to the offender, than the law in force at the time of the offence was committed.
Modern writers don’t accept any more the idea that penal laws are not to have a retrospective application. When the law against which the offence was committed is subsequently
23 General Principles of Criminal Law repealed, so that the act is no longer criminal. The principle accepted in continental doctrine and practice, which we follow in this matter, is that, if the law on which the charge is framed is repealed without any qualifications while the proceeding are still pending, such proceedings fall through and no sentence against the accused can be pronounced. If before the man is tried, the legislature cancels the criminal character of the act with which he stands charged, there is no longer any justification for inflicting punishment upon him. The action of the state, in repealing the former law which prohibited the act, clearly shows that the public peace and order together with the public welfare are no longer endangered or harmed by such type of act and that, therefore, the state has no longer any interest in repressing it, and consequently, no right to punish it.
There are contrasting view as regards cases of Res Judicata. There are those that say that if the law is repealed after the offender has already been sentenced, there would be the automatic remitting of any outstanding portion of the sentence or penalty. If a new law cancels from the class of criminal offences an act which was considered as an offence by the previous law, all the effect of the trial and of the sentence should cease ipso jure. This view is applied in Italy.
The opposite view is hat the repeal should have no effect on the result of a final and absolute judgement. This solution appears to be more acceptable and is more commonly adopted in modern systems of law. In Malta the repeal of a law does not in any way affect, as a right, any judgement which has become a res Judicata. The only remedy the prisoner can have in such a circumstance is the exercise in his favour of the Prerogative of Mercy. This is conferred on the President of the Republic of Malta.
Old writers thought that the repealing law is given retrospective application by way of an indulgence to the accused. But, modern writers do not accept this explanation, and contend that the principle in question has a true juridical foundation. Their argument is that, rather than an exception to the rule of non-retrospectively with regard to the new law, the said principle is an affirmation with regard to the former law, of the other rule that a law cannot operate after its repeal.
(b) As regards punishment Article 27 of the Criminal Code says: “If the punishment provided by the law in force at the time of the trial is different from that provided by the law in force at the time when the offence was committed, the less severe kind of punishment shall be awarded.”
However when one is to decide which is the less severe punishment, one must consider both quantity and quality. When the quality remains untouched, quantity is taken in consideration. This means that if the punishment remains the same, let’s say imprisonment, but the term is increased or decreased then the least severe punishment is applied. Whereas if the punishment changes in quality but not in quantity, a problem arises. Which is the least severe punishment?
In choosing the punishment which causes less suffering (i.e. deprives you of the less important right), a judge does not ask the accused which punishment he prefers and usually the more important right of which the offender is deprived is considered the more severe punishment. For example imprisonment for a couple of days is more severe than a multa of Lm1000, even though most be happy to spend a couple of days doing nothing than being fined Lm1000.
24 General Principles of Criminal Law Another situation arises when the maximum punishment is lowered. If the penalty incurred for a particular offence is lowered from 10 to 5 years, if the punishment of 8 year had been assigned to the offender and as a result he is now convicted to 5 years. Even though the 5 years would be advantageous to him than the 8 years it could be considered unfair treatment. This is due to the fact that the punishment awarded is not proportional and hence 4 years should be awarded to him.
In the case of a res judicata, the judgment is final and nothing can be done except for the presidential prerogative. However, if appeal from the sentence is pending, the accused is entitled to benefit from the less severe punishment.
In the case, Police vs. Agostino Bugeja (1941) there is an illustration of the application of the former Article 28 of the Criminal Code (today’s Article 27), where the agent of the crime will benefit from any law which may have been in force between the commission of the offence and its trial. The latter principle was extended to the situation where an act was no longer considered a crime. In such a situation, proceeding should fall through.
6.1.3Principles of Benefit for the Offender
• This holds even in situations where there are more than two laws altering the nature of a particular offence. The offender benefits from the law providing the least punishment. • Pessina held that in his case, if the authorities were quick enough in trying him, he would have benefited from law anyway. The concession was granted to him “humanitatis causa”. • These principles of the application of more favourable law may be set aside by the repealing or amending law. In Malta, these principles are abided due to enactments operating for a short period of time and the amended, repealed or re-enacted.
6.1.4Situation after the Interpretation Act of 1975 Chapter 249
Article 12(1) states that: “Where any Act passed after the commencement of this Act repeals any other law, then, unless the contrary intention appears, the repeal shall not – (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any law so repealed; (c) affect any right, privilege or liability acquired or accrued or incurred under any law so repealed; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or any liability thereto; (e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;” and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
6.1.5Changes in the law of Procedure
Amended laws of procedure are of immediate application and it is the law of procedure which stands at the time of the trial which applies even if the procedure is different at the time of the fact or the procedure at the time of the trial is less or more favourable to the accused, it is this
25 General Principles of Criminal Law which is applied. E.g. Bill of indictment: The accused previously had to present a not or please by one month but now this has gone down to 15 days.
When the form change, it resolves to be no problem. E.g. A please not should be presented by not and not by recourse. Where the form changes, it is the law in application at the time of the filling that is applied. Therefore, the law at the time of the submission is applied because procedural aspects do not impinge upon the position of the accused. In the case Police vs. Joseph Ellul Sullivan (29.11.82) presided by Mr. Justice Carmel Aguis, the A.G. was not given the right to appeal t the beginning of the procedure. The Court ruled not to allow the appeal on the ground: “Apparti mill-prinċipju tan-non retrospettivita` tal-liġijiet tan-natura penali, f’ dan il-każ jidher ċar li d-dritt ta’ l-appell jekk jiġi akkordat lill-Avukat Ġenerali, dan joħloq sitwazzjoni ta’ preġudizzju lill-imputati li ġew liberati …… ”
Since the legislator did not expressly provide that the law allowing the A.G. was given the right to appeal in case of pending proceedings, the situation was that when criminal proceedings were instituted, the A.G. did not have a right of appeal in all cases. The defendant ovjament pleaded that the AG did not have the right of appeal and the court accepted it because it said that it would prejudice the accused. In another case police vs George Fajjenza et 2005. in this case the accused were charged with a number of offences that were committed in 1998 were at the time the rights of the AT were biss to points of law and the judgment was in 2003 and the AG using his newly acquired right of appeal . appealed to this judgment . again the defence pleaded that the AG could not invoke this right of appeal but this time the court of criminal appeal rejected this argument and said that the general rule in matters of procedure the law to be applied is the law at the time of the trial
6.1.6Change in the Rules of Evidence (Article 639)
Corroboration: Evidence confirming the accuracy of other evidence. Before, the corroboration of evidence of an accomplice as needed, while now, certain criminal infringements no longer require them. Fundamental was the fact that if an accomplice is believed, it cannot convict the accused unless evidence is corroborated. After 1988 in the certain cases mentioned in Article 639, the law no longer needed corroboration of evidence.
In the case, Republic of Malta vs. Ravi Ramani, in 24th Jan 1989 the Courts did not consider these amendments but those according to the Drugs Ordinance. Thus corroboration of evidence was not required. The Courts of criminal appeal seems to have held that this amendment to the law, was of immediate application.. In Police vs. Lorenzo Cuschieri 8th Jan 1992, a constitutional case was raised upon this question. The constitutional court rejected the arguments of Cuschieri. In Joseph Picco vs. A.G. (10.12.91), the court following Article 39(8) of the Constitution and Article 7 of the European Convention and expressly stated that these two sections only apply to what they refer to when the fact is not criminal but later becomes criminalized and were the issue of the severity of punishment apply,
6.1.7Change in Prescription
Police vs Francis Spiteri 20th March 1975 this is the first of three mentioned cases. At the time the time for proceedings was that of three months and pending proceedings the time or period of prescription was extended to one year. The other judgment was police vs Stephen Bondin 25th October 1984.the period of prescription was that of 3 years and pending judgments this period was extended to 5 years due to the amendment during the trial. The court of appeal said that if on the date of the amendment the action is time barred according to the old prescriptive period then you stop there and you cannot reactivate the criminal action. but if on
26 General Principles of Criminal Law the other hand on the date of the amendment the action according to the old prescriptive period is not time barred then it can take effect and increase the prescription period. In this case it was not time barred but in the Spiteri case it was . the third case is police vs Joseph Grima on 2nd may 1984. The court criticised the Bondin judgment and said that the principle that should be applied is that of professor Mamo on the notes of Pessina, you have to apply the principle of section 27 of the criminal code. Meaning that if you have two prescription periods you have to see them both and see which one is more favourable to the accused and apply that. Look at police vs Louis Cordina 23 Jan 2005. important .
If the time for the criminal action expires before the amendment in law is extended then that action is time-barred and the prosecutor cannot invoke the extension of the prescription. The extension of prescription becomes to the advantage of the prosecution and hence impinges upon the important issue of guilt or innocence due to the evidence which might be obtained if more time is accorded.
Such question of transitory law are not only resolved by Criminal law, but also by the Constitutional law and the European Convention on Human Rights. Usually, reference to text writers and other sources are made. 6.2 Jurisdiction – Limitations by Territory
6.2.1Territorial Jurisdiction
Beccaria believed that the criminal jurisprudence should be absolutely and exclusively territorial without any exceptions. In fact he said:
“… the place of punishment should be the place of commission of the offence and no other”
When society was less complex and crimes were simpler because the movement of persons and goods was restricted, the preparation, the execution and the completion of a crime used to happen in the same territory. Therefore the most obvious exercise of jurisdiction was the place were the crime took place (lex locus delicti) and the court which had a jurisdiction over the case was easily decided. This was held to emanate from two other important principles: 1) Territorial Sovereignty 2) Equality of States
1. Territorial Sovereignty was the right of the state to exercise supreme authority overall persons and things within the territory. Thus the court of the state had a right to exercise its power over all crimes that occurred in its territory.
2. Equality of States was derived from the first principle. If every state can legislate freely over its territory, then no other state may infringe the Sovereign right of another state by enacting legislation which could apply to the territory19 of another state.
However with the improvement of technology which in increased movement of persons and goods between states and since the crimes became more complex, conceivability, preparation and execution could be done in different states. Territory became insufficient to repress crimes. Several changes were needed so that there will be no one that stays unpunished for any crimes committed. One needed to make this principle more efficient to meet the needs created because of the increase of movement. Thus by territory was not understood only the 19 Up till now ‘territory’ means only the land
27 General Principles of Criminal Law land but, sea, air, ships and aeroplanes. Jurisdiction was also extended to ships property of the country, or which where registered in the country, when these were out of the territorial waters of the same country. Yet still there were many restrictions which needed to be eliminated. An example is the following: A man shot and kills another person across a boundary. This would have meant that the both states could exercise jurisdiction over him. This happened in the Lockerby Case where the conduct was caused in Malta but the consequences were felt in Scotland. Thus two further principles developed
6.2.1.1 Subjective Territorial Principle The state assumed jurisdiction over crimes which commenced in its territory even though completed within the territory of an other country.
6.2.1.2 Objective Territorial Principle This means that jurisdiction is exercised by the state where the consequence of the offence was felt. This may also lead to Concurrent Jurisdiction, where both states could exercise jurisdiction.
6.2.2Cosmopolitan / Universal Justice
There are certain acts which are considered to be crimes everywhere and, the offender ought to be punished wherever he might himself as it is duty of all states to aid each other in the maintenance of universal order. There are in fact certain criminal offences in international law that have assumed universality e.g. piracy( jura gentium), war crimes and crimes against humanity. Until recently these were the only crimes which were considered as such, still there are others that although haven’t yet been included with these three have acquired a Universal Character e.g. drug trafficking, white slave trafficking and acts of terrorism.
As regards these crimes many countries rather than applying the Universality principle applied the “outdedere out judicare” principle especially if the state receives a request for extradition. This is for those countries which for some reason do not want to extradite a particular offender it will be obliged by this law to surrender the offender to the legal authorities. Some exponents such as Vattel wishes to extend it to all crimes while those like Carrara wish to see it applied to those serious crimes.
6.2.3Personal theory of Jurisdiction
This has always been more common the universal jurisdiction but not as common as territorial jurisdiction.
The theory is not based upon the place of commission, preparation or execution of offence, but it is based on the quality meaning the nationality of the person (offender or victim). However, there still remains a remnant of Territorial Jurisdiction since the offender must be back in country which is accusing him. This theory is sub-divided into two parts: 1) Active Nationality principle; 2) Passive Nationality principle.
6.2.3.1 Active Nationality principle The state may assume jurisdiction to punish its nationals for crimes committed outside its territory. In these cases only the nationality of the offender is relevant. It may be said that this is the consequence of the sovereignty of the state. These have the duty to protect its
28 General Principles of Criminal Law nationals. Any wrong to them is considered to be a wrong against the state. As a consequence of this a national carries the laws of his native state with him and thus he must also obey them wherever he may be. It is not the lex locus delicti that is important but the active subject of the crime – the offender.
6.2.3.2 Passive Nationality principle The same applies here but what is relevant is not the nationality of the offender but that of the victim. Since criminal law is there to protect the country and the community, this applies wherever these may find themselves. Thus it is argued that the state has jurisdiction over acts committed on its citizens.
6.2.4Self Preservation theory
This theory states that the state may assume jurisdiction over all those offences that may be against the interest and security, integrity and economical safety of it even if committed by foreign nationals on foreign territory. Again the lex locus delicti is not important in these cases.
The way these principles are applied in a particular country shapes the parameters of jurisdiction as employed in such a country. In case of concurrent jurisdiction states may disregard the decisions taken by foreign while with the transfer of criminal proceedings one state can ask another state to take over the competence and prosecutes the accused.
6.2.5Section 5 and its interpretation
5. (1) Saving any other special provision of this Code or of any other law conferring jurisdiction upon the courts in Malta to try offences, a criminal action may be prosecuted in Malta - (a) against any person who commits an offence in Malta, or on the sea in any place within the territorial jurisdiction of Malta;
(b) against any person who commits an offence on the sea beyond such limits on board any ship or vessel belonging to Malta;
(c) against any person who commits an offence on board any aircraft while it is within the air space of Malta or on board any aircraft belonging to Malta wherever it may be; For the purposes of this paragraph the expression "air space" means the air space above the land areas and territorial waters of Malta;
(d) without prejudice to the preceding paragraphs of this sub-article, against any citizen of Malta or permanent resident in Malta who in any place or on board any ship or vessel or on board any aircraft wherever it may be shall have become guilty of an offence against the safety of the Government or of the offences mentioned in articles 133, 139A, or of the offences mentioned in articles 311 to 318 and in article 320 when these are committed or are directed against or on a state or government facility, an infrastructure facility, a public place or a place accessible to the public, a public transportation system, or of forgery of any of the Government debentures referred to in article 166 or of any of the documents referred to in article 167, or of the offence mentioned in article 196, or of any other offence against the person of a citizen of Malta or of any permanent resident in Malta; For the
29 General Principles of Criminal Law purposes of this paragraph: "permanent resident" means a person in favour of whom a permit of residence has been issued in accordance with the provisions contained in article 7 of the Immigration Act; "offence against the person" includes the offences mentioned in articles 86 to 90 and in articles 198 to 205; the expressions "state or government facility", "infrastructure facility" and "public transportation system" shall have the same meaning assigned to them respectively by article 314A(4);
(e) against any person who being in Malta – (i) shall have become guilty of any offence under article 87(2) or articles 198, 199, 211, 214 to 218, 220, 249 to 251, 311, 312, 314A, 314B, 316 or 317 when committed or directed on or against the person of a protected person or to the prejudice or injury of such person or likely to endanger the life or to cause serious injury to the property, life or health of such a person, or in connection with an attack on any relevant premises or on any vehicle ordinarily used by a protected person or when a protected person is on or in the premises or vehicle; or
(ii) shall have committed any act which if committed in Malta would constitute an offence and such act involved the use of a bomb, grenade, rocket, automatic firearm, letter bomb or parcel bomb which endangered persons, although the offences referred to in this paragraph shall have been committed outside Malta: Provided that for the purposes of sub-paragraph (i) of this paragraph it shall be immaterial whether the offender knew that the person was a protected person;
(f) against any person who – (i) commits any offence in premises or in a building outside Malta having diplomatic immunity due to the fact that it is being used as an embassy, a residence or for such other purpose connected with the diplomatic service of Malta; or (ii) commits an offence in a place outside Malta when such person enjoys diplomatic immunity by virtue of such service;
(g) against any person who being in Malta, shall be a principal or an accomplice in any of the crimes referred to in article 87(2), or in articles 139A, 198, 199, 211, 214 to 218, 220, 249 to 251, 298, or in articles 311 to 318 or in article 320 when these are committed in the circumstances mentioned in paragraph (d) or (e) of this sub-article, or in a crime which is committed by any act as is mentioned in paragraph (e)(ii) of this sub-article, or conspires with one or more persons for the purpose of committing any of the said crimes, although the crimes shall have been committed outside Malta;
(h) against any person in respect of whom an authority to proceed, or an order for his return, following a request by a country for his extradition from Malta, is not issued or made by the Minister responsible for justice on the ground that the said person is a Maltese citizen or that the offence for which his return was requested is subject to the death penalty in the country which made the request, even if there is no provision according to the laws of Malta other than the present provision in virtue of which the criminal action may be prosecuted in Malta against that person;
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(i) against any person who commits an offence which, by express provision of law, constitutes an offence even when committed outside Malta:
Provided that no criminal action shall be prosecuted against the President of Malta in respect of acts done in the exercise of the functions of his office.
(2) For the purposes of sub-article (1) (b) and (c), a ship or vessel or an aircraft shall be deemed to belong to Malta if it is registered in Malta or, if it is not registered anywhere, is owned wholly by persons habitually resident in Malta or by bodies corporate established under and subject to the laws of Malta and having their principal place of business in Malta.
(3) For the purposes of sub-article (1) (e):
"A protected person" means, in relation to an alleged offence, any of the following:
(a) a person who at the time of the alleged offence is a Head of State, a member of a body which performs the functions of Head of State under the constitution of the State, a Head of Government or a Minister for Foreign Affairs and is outside the territory of the State in which he holds office;
(b) a person who at the time of the alleged offence is a representative or an official of a State or an official or agent of an international organization of an inter- governmental character, is entitled under international law to special protection from attack on his person, freedom or dignity and does not fall within the preceding paragraph; (c) A person who at the time of the alleged offence is a member of the family of another person mentioned in either of the preceding paragraphs and – (i) If the other person is mentioned in paragraph (a) above, is accompanying him, (ii) If the other person is mentioned in paragraph (b) above, is a member of his household; "relevant premises" means premises at which a protected person resides or is staying or which a protected person uses for the purpose of carrying out his functions as such a person; and
"vehicle" includes any means of conveyance; and if in any proceedings a question arises as to whether a person is or was a protected person, a certificate issued by or under the authority of the Minister responsible for foreign affairs and stating any fact relating to the question shall be conclusive evidence of that fact.
Application of Article 5
Article 5 lays down grounds upon which jurisdiction can be exercised under our law. However this is not the only reference that we have in our law as regards this subject. There are other statutes that offer grounds for jurisdiction like for e.g. Dangerous Drug Ordinance and the Civil Aviation Security Acts. One must also refer to the International Criminal Court Act (Chapter 453 of the Laws of Malta) for further help.
Article 5 (1) (a) the principle referred to in this paragraph is the Territorial Jurisdiction Principle together with its extensions i.e. Territorial Waters, Air space and land. There were
31 General Principles of Criminal Law certain places that were considered as a Sanctuary and so the police could not enter to request for someone, but this was abolished by Proclamation No. VI of 1828.
Article 5 (1) (b) The Extended Territorial Principle is the enforced through this article. This goes beyond (a) because it mentions also ships and vessels that belong to Malta20.
Article 5 (1) (c) Even in this section the extended territorial Principle is enforced. The Maltese courts have jurisdiction over anyone that commits an offence on any aircraft while it is in Maltese air space and on an aircraft, property of Malta wherever it may be. The air space referred to is that above the territory (land) and also that above the territorial waters.
These first three paragraphs refer only to the Territorial Principle, together with its extensions, since the only quality needed so that the Maltese courts would have Jurisdiction, is the place where the offence happened – lex locus delicti. The nationality or the type of the crime, are irrelevant for these paragraphs. Thus the Self-Preservation and Personal Jurisdiction are as a result irrelevant as well.
Article 5 (1) (d) According to this paragraph jurisdiction may be exercised when the interest of the state is being hindered, yet the offence must be committed by a Maltese citizen or by a permanent resident in Malta. This means that it is a mixture of Self-Preservation and Active Nationality Principle. The place where this offence is committed is irrelevant. The offences are listed as well and so it is not any crime that may be punished but only those listed thereof. There is also a hint of Universal Jurisdiction with the mentioning of article 139 (a), which refers to torture and inhuman punishment by officials but which is not yet part of the Universal Principle. Torture will be punishable by Maltese Courts and is punishable by the ICC.21 Moreover there are a serious of other offences that fall under the Jurisdiction of the Maltese courts is committed under the circumstances mentioned in article 5(1) (d). (These offences are marked on the notes p. 35-36)
A practical example: - An Italian citizen flying British Airways, on High seas, steals a Maltese Citizen. The Italian has a Maltese friend with him that punches the Maltese or any other person on board of the plane. The Maltese courts would have Jurisdiction over the Maltese (the one who punched) since he is Maltese and committed an offence and since he punched another Maltese – both are prohibited by this article. We thus have also the Passive Nationality Principle in 5(1) (d) but it has to be by a Maltese Citizen or permanent resident
Yet according to Article 5 (1) the Maltese Courts don’t have Jurisdiction over the Italian since he is not Maltese or a permanent resident of Malta and since the offence was committed on high seas and not on Maltese Territory; on an airship not property of Malta and the offence was against the property of the person and not against the person itself.
Article 5 (1) (e) Article 87(2) is the closest one can get to Universal Jurisdiction this states: Where a person who commits the crime referred to in the last preceding article threatens to kill, to injure or to continue to detain or confine the person arrested, detained or confined, with the object of compelling a state, an international governmental organization or person to do or to abstain from doing an act he shall be liable to the punishment of imprisonment for life.
The protected person, head of state, ambassadors etc, mentioned in this part are not necessarily Maltese.
20 See Article 5 (2) for the meaning of ‘ship or vessels belonging to Malta’ 21 International Criminal Court
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The sub-paragraph (ii) refers to acts which are offences in Malta but which are committed outside Malta, by a person being in Malta.
Article 5 (1) (d) The Maltese Courts have Jurisdiction over (1) any person who commits offence in any Embassy or building connected with diplomatic service of Malta enjoying inviolability – diplomatic immunity; (2) and over any person outside Malta that enjoys diplomatic immunity on behalf of Malta.
Warships and embassies were traditionally considered as territory of Malta or part of Malta in another country. Since offences are committed on Maltese territory, then jurisdiction can only be exercised by the Maltese Authorities. Today, embassies are not any longer considered to be territory of the Malta but territory of the country hosting the embassy. Yet these have inviolability – the host states are precluded from entering these premises due to their diplomatic immunity. Police cannot merely barge in Maltese embassies in a foreign country. This immunity can be waved and the offender is surrendered to the host country. This shows that the embassy is not part of the territory of Malta. But since decided not to remove this immunity, paragraph (f) was created. This is an exercise of expediency.
Article 5 (1) (g) If any person who is in Malta and has committed any of the crimes mentioned in this part outside Malta but the conspiracy occurred in Malta, the Maltese Courts may prosecute him
Article 5 (1) (h) the principle behind this paragraph is ‘out dedere out judicare’ i.e. if the country refused to extradite the accused then it is bound to exercise jurisdiction. This was created since there could be cases were we could not extradite but we had no ground for jurisdiction.
The only exception is that regarding the President of Malta who may commit act or criminal offences during the exercise of functions of his office.
Notes: - Territorial waters and Contiguous Zones
Territorial Waters extend to 12 nautical miles off the coast of the Maltese Islands. But for the Fish Industry Act these shall extend to 25 miles Contiguous Zone is a zone defined in the act as adjacent to the zone of territorial waters which extends to 24 nautical miles
- Ships in Territorial waters
With respect to ships within territorial waters of Malta, whatever nationality of ship Maltese courts can exercise jurisdiction unless the ship is a war ship which enjoys inviolability. The offender must be on land so that he is arrested.
- The person must be in Malta for the courts to try him. It is irrelevant how he came to Malta
Case Law
- Regina vs. Henry Vella 18 – 11 –1898 Court ruled that legality or otherwise of the accused arrest was irrelevant as to whether the court had any right to try him
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- Rex vs. Eduardo Frendo 05 – 10 – 46 Referred to previous case and agreed with it, since illegality of arrest does not prevent court from trying accused before it. 7 Criminal Liability
He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong. This ‘vinculum juris’ has its source in the supreme will of the state, vindicating its supremacy by will of physical force in the last resort against the un-conforming will of the offender.
We have not to investigate the leading principles which determine the conditions, the incidence and the measure of responsibility for criminal wrong-doing. Criminal liability is generally explained with quite accuracy in the old legal maxim ‘actus non facit reum nisi mens sit rea’ ~ the act alone does not amount to guilt; it must be accompanied by a guilty mind. That is to say that there are two conditions two are fulfilled before criminal responsibility can rightly be imposed: the material and formal conditions. Before imposing punishment the law must be satisfied of two things: that an act has been done which, by reason of its harmful tendencies or result, is fit to be repressed by way of penal discipline; and secondly, that the mental attitude of the doer towards his deed was such to render punishment effective for the future and therefore just. 7.1 Material Condition of liability
A material condition is the doing of some act by the person to be liable. A man is to be accounted responsible only for what he himself does, not for what other persons do, or for events independent of human activity altogether. Here the term act is used in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will. As to the nature of the will and of the control exercised by it, it is not for lawyers to dispute, since it is a problem of philosophy or physiology, not of jurisprudence.
Of these acts there are various species. In the first place, they are either positive (commission) or negative (omission). In the second place these could be either internal or external acts. The former are acts of the mind, while the latter are act of the body – to think is an internal act, while to speak is an external act. Criminal law is not concerned with merely the internal acts. A bare intent to commit a crime in not amenable to criminal justice, yet some outward act must be superadded to constitute a crime: “the imagination of the mind to do wrong, without an act done is not punishable in our law”22. The will must not be taken for the deed unless there is an externalization of that will formed in the mind of the person, which shows that progress had been made in the direction of it or towards maturing and effecting it. At first sight it would seem that conspiracy is an exception to the rule, yet this is not the fact since for two persons to agree upon some act or on something in general there must be an externalization of their thoughts.
Every act is also made up of three different factors material elements or constituent parts; that are: 1. its origin is some mental or bodily activity; 2. its circumstances, and 3. Its consequence.
22 Lord Mansfield in Hales vs. Petit
34 General Principles of Criminal Law Let us suppose that in practicing with a rifle, I shoot some person. The material elements of my act are the following: its origin or primary stage, namely a serious of muscular contractions, by which the rifle is raised and the trigger pulled; secondly, the circumstances, the chief of which are the facts that the rifle is loaded and in working order and that the person killed is in the line of fire; thirdly, the consequences, chief of which are the fall of the trigger, the explosion of the powder, the discharge of the bullet, the passage through the body the man killed and the death. Whatever acts the law prohibits as being wrongful and for which a man is deemed to be liable, is so responsible in respect of its origin, its circumstances and its consequence. For unless it has its origin in some mental or physical activity of the defendant, it is not his act at all and apart from its circumstances and results it cannot be wrongful.
The harmful consequence of an act prohibited by law need not always, however, be actual; they may be merely anticipated. In other words, an act may be mischievous in the eyes of the law in two ways – either in its actual results or in its tendencies. Criminal wrongs normally belong to the latter class, for the law punishes even the attempt. Criminal liability is usually sufficiently established by the proof of some act which the law deems dangerous in its tendencies, even thought the issue is in fact harmless or even unsuccessful attempts. The material badness of an act depends on the actual nature, circumstances and consequences of it. 7.2 Formal Condition of Liability
The formal condition, on the other hand, is the ‘mens rea’, or the guilty mind with which the act is done. It is not enough that a man had done some act which, on account of its mischievous tendencies or results, the law prohibits: before the law can justly punish the act, an enquiry must be made into the mental attitude o the doer. For although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent. Its formal badness depends on the state of the mind or the will of the actor – the mens rea. This mens rea may assume one or the other of two distinct forms: wrongful intention – dolus (on purpose) or culpable negligence – culpa (carelessness). Both these mental attitudes are such as to make punishment effective. In the first case penal disciple will furnish him with sufficient motive to choose the right instead for the future. On the other hand, in the second case were he committed the forbidden act without wrongful intent but with a grievous lack of care law will induce him to be more attentive in future. Yet if the act is committed with neither or the two, but he did his best as a reasonable man to avoid it, there could be no good purpose in holding him liable to that act prohibited by law.
Yet there may be exceptions in which the law sees fit to break through the rule as to mens rea. It may hold a man responsible for his acts, independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus independent of mens rea are distinguished by Salmond as wrongs of absolute liability. It follows that in respect of the requirement of mens rea, offences may be of three kinds:
1. Intentional or willful offences, in which the mens rea amounts to intention purpose or design; 2. Offences of Negligence, in which this assumes the less serious from of mere negligence as opposed to wrongful intent; 3. Offences of absolute liability, in which the mens rea is not required, neither wrongful intent nor culpable negligence being recognized as a necessary condition of responsibility.
35 General Principles of Criminal Law 7.3 Criminal Intention
Intent will be found to resolve itself into two things: foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act – Holmes.
Intention, in general, is the purpose or design with which an act is done. It is the fore- knowledge of the act of the act; coupled with the desire or it; such fore-knowledge and desire being the cause of the act, in as much as they fulfill themselves through the operation of the will. It is thus the combined operation of the intellect and the will: it is the striving of the will towards a certain end represented by the intellect.
Carrara makes an important distinction between direct and indirect intention.
Direct intention
Intention is direct since the act done, although liable to fail, had been done with the direct purpose of producing the desired effect. For intention does not always involve certainty of expectations. Intention does not cease to be direct whenever the consequence of one’s act is foreseen and desired, thought the means used to bring about that consequence can only probably achieve the purpose. There is equal a direct intention on the part of that husband who, with the purpose of poising his wife, directly administers her the poison, as on the part of that other husband who, with the dame purpose, puts into the house food mixed with poison in the hope that she its it and dies. Direct intention is the foresight of a desired issue, however improbably, not the foresight of an undesired issue, however probable.
Indirect intention
Intention, according to Carrara is indirect when the event was merely a possible consequence of one’s act, which even was either not foreseen at all, or was foreseen but not desired. If such an event was foreseen, and notwithstanding such foresight the means were desired although the event itself ensuing such means was not desired, the indirect intention is said to be positive. On the other hand, if the possible event was not only not desired, but not even foreseen, the indirect intention is said to be negative.
Direct intention and positive indirect intention give rise to dolus, i.e. criminal intent. Negative indirect intention gives rise to culpa, i.e. negligence, or to casus, i.e. accident or misadventure.
Carrara defines criminal intent (dolus) as “the more or less perfect intention of doing an act which is known to be contrary to the law”. This does not mean that in each particular case it is necessary to enquire whether the defendant actually knew of the existence of law, since ignorance of law is not an excuse. Nor is it necessary that the intention of the doer should be directly that of breaking the law. Nor is it necessary that the intention of the doer should be directly that of breaking the law. What is essential is that the agent knew of that he was doing a wrong, that his act was injurious to a right of others protected by criminal law:
According to Kenny “in all ordinary crimes the psychological element which is thus indispensable may be fairly accurately summed up as consisting simply in intending to do what you know to be illegal”. To me the last part conflicts with the Latin maxim Ignorantia juris neminem excusat since it expects this element requires:
36 General Principles of Criminal Law a) The power of volition: i.e. the offender must be able to ‘help doing’ what he does; b) Knowledge that what the offender is doing is wrong; wrong either intrinsically or, at any rate, in prospect of such circumstances s he has ground for foreseeing; c) Foresight of such circumstances.
This rule seems to create a very complex perspective of criminal intent, and also cause the prosecution more difficulty in obtaining evidence of it. For to borrow the saying of a medieval judge, which Sir Frederick Pollock has made, “the thought of man is not triable, for the Devil himself knoweth not the thought of man” ~ one cannot try man’s thought since not even the devil know it. But this seldom arises in practice: for in most cases the law regards the criminal act itself as sufficient prima facie proof of the existence of criminal intent.
In England, every sane adult is presumed to intend the natural or necessary consequences of his willful conduct. The law treats as intentional all consequences which the actor foresees as the probable results of his wrongful act, the known consequences of an illegal act are imputed by law as intentional. No man who knows that certain results will flow from his illegal act will be suffered to say that he did not intend them. Kenny said that: “Purpose always involves the idea of a desire … For a man is not ordinarily said to intend any consequences of his act which he does not desire...”
But the presumption that every man knows and intends the natural and probably consequences of his act is, no doubt rebuttable. Indeed, many writers now regard the rule as being merely an evidential presumption, a common-sense inference that may be drawn from circumstances and not a principle or proposition of law. Thus if the accused can show that the consequence which has in fact resulted, though physically inevitable, was not, in the particular case, an obvious result of his act, or if he can show that the result which has happened was probable only when certain circumstances co-existed and that he was not aware of the existence of such circumstances, then in both these cases the presumption is rebutted and he cannot be held to have intended the result. Again if he can prove that the possibility of such a result never occurred to his mind, then although such heedlessness will probably render him liable to a charge of criminal negligence, he cannot be held to have intended the result. But if he was aware that certain consequences might follow the act which he contemplated doing, and yet deliberately proceeded to do the act, he must be taken to have intended those consequences to follow, even though he may have hoped that they may not.
Yet this could be rebutted by the proof that at the time he committed the act, he had not a mind capable of forming an intention. According to Carrara for a man to be held criminally liable for an offence, it is not necessary that his wrongful intent be contemporaneous or co- incident with the last act of completion of such a crime. Some times the act from which criminal responsibility arises is separated from the act that competes the crime by an interval. This could be seconds or even days. For example, no kills or robs someone or something the same instance the criminal intention is formed in his mind. Moreover when A sends a box of poisoned chocolates to B with the intention to kill him the completion of his act could occur days later when B eats the chocolates. Even in this case if A could be held criminally liable for the wrongful intent and for B’s death. If in the mean time A falls victim of a delirium tremens which makes him utterly irresponsible and is still in the same state when his act is completed: subsequently A recovers. Still he cannot escape responsibility because at the time the crime was completed he was dolo incapax. His responsibility proceeds from the act which caused the event and to hold him responsible it is sufficient that he was of a murderous intent at the time he committed the act which was later the cause of B’s death.
37 General Principles of Criminal Law The same rule applies in all cases in which the last act of consummation is not performed by the defendant but by the victim himself, or by a third party not concerned in the crime or by a co-offender (e.g. a hired assassin). In all such cases it may happen that at the time in which the intended crime is completed the person who designed or planned or ordered or, in any other manner was the efficient cause of the crime is dolo incapax or has repented his original intent. All this will not exonerate him from his responsibility which arises out of the wrongful intent which accompanied the causative act, although it no longer subsists when the event ensues.
Of course, in all cases the basic condition of criminal liability, such as competent age, sanity, freedom from certain kinds of coercion and mistake, must exist before there can be any guilty mind
7.3.1Intention and Motive A wrongful act is seldom intended and desired for its own sake. The wrong does has in view some ulterior scopes which he desires to obtain by means of his acts. This ulterior intent is called the motive of the act. Cont…/
7.3.2Kinds of Criminal Intent
7.3.2.1 Generic and Specific intent The intent is generic (dolus genericus) when it consists simply in intending to do an act which is known to be illegal. This ordinary generic intent is the necessary and, as a rule, sufficient psychological element for imputability in respect of willful crimes. But in some cases a particular or specific intent is required by the definition of certain crimes: this particular intent is constituted by the special purpose which the doer actually had in committing the crime. It sometimes serves to distinguish between offences that could be either the same or similar
7.3.2.2 Determinate and Indeterminate When the idea and the fact, the will and the deed, the design and the issue are completely co- incident and the event corresponds in every part of it to the precedent idea in the agent’s mind and of which it is the outcome and realization: it is known as Determinate. Example when A wants to kill and not merely to hurt B, and actually kills him. The crime committed corresponds precisely to the crime intended.
When on the contrary, the agent wrongfully intended and desired to produce one result but had present before his mind the possibility of producing a more serious result without, however, positively wishing to produce such graver result, the intent of the agent with reference to the event is said to be indeterminate. A shoots at B intending to cause him bodily harm but not shrinking from the possibility which he foresees of killing him.
The distinction has hardly any importance, for as Impallomeni points out all authorities are in agreement that an indeterminate intent entails the same degree of liability as a determinate intent.
7.3.3Good Faith
This is the opposite concept of wrongful intention. Thus by good faith is meant the reasonable belief of the lawfulness of the event which is voluntary caused. In other words, a man is said to have acted in good faith when he has done an act which is materially or objectively contrary to criminal law, not only without any intention of violating such law but
38 General Principles of Criminal Law also without any intention of committing a wrongful act at all. It is essential that the subjective state of the doer should not be the result of the ignorance of, or an error as to, the existence or the operation of the penal law and further, that the case be not one in which the law imputes to the doer the consequence, even if undesired, of his voluntary act. Good faith, therefore, always revolves itself into a mistake of fact or a mistake of law, but other that criminal law.
It is to be clearly noted that ‘doubt’ is neither ignorance nor mistake, but knowledge, in as much as certainty is not an essential attribute of guilty knowledge. Doubt therefore, does not exclude wrongful intent, unless of course in some particular law full certainty is required.
But on the other hand it is not essential that the good faith be absolute. A man, who commits an act absent-mindedly or thoughtlessly, cannot be said to have acted with ‘perfect’ good faith: but he cannot be said either to have acted with wrongful intent. At most this could amount to negligence which however is not criminally punishable except in the cases expressly laid down in the law.
The question whether there has been good faith is one of fact which has to be considered in each case with reference to all the surrounding circumstances. 7.4 Criminal Negligence
“The will to do an act which is contrary to law without the consciousness of its wrongfulness, which consciousness could, however, have been had if the agent has used greater care in reflecting upon the possible consequences of the act.” – Carrara
Criminal liability also arises from negligence (culpa).
7.4.1Subjective theory
A theory propounded by Carmignani and elaborated by Carrara, states that negligence is a subjective fact, or in other word, a particular state of the mind. This consists in a failure to be alert, circumspect, or vigilant, whereby the true nature, circumstances and consequences of man’s acts are prevented from being present in his consciousness. The willful wrong doer is he who knows that his act is wrong: the negligent wrong doer is he who knows that his act is wrong: the negligent wrong doer is he who does not know it, but would have known it were it not for his mental indolence.
In these definitions the essence of negligence is made to consist in the “possibility of foreseeing” the event which has not been foreseen. The agent, who caused the act, did not intent or desire it, but could have foreseen it as a consequence of his act if he only has minded: so his negligence lies in his failure to foresee that which is foreseeable. It is important not to confuse foresee-ability with foresight. A man (1) may not foresee at all an actual result which subsequently happens; or (2) he may foresee such a result as possible but hopes to avoid it. According to Carrara there is mere negligence in both hypotheses, provide the act was done animo nocendi. If, in the second hypothesis, the act was done animo nocendi then it will be imputable as intentional. Yet if the act was done with an innocent purpose, there is mere negligence in respect of the effect produced because no to foresee that a thing my happen and to foresee that a thing may not happen amounts to the same thing.
39 General Principles of Criminal Law Carrara gives the following example: A fired his gun at a wild beast in the thick of the forest: in the background there was a man whom he killed. A had not foreseen at all that the man was there, but if he could have foreseen it, then he is guilty of negligence (Hypothesis 1). A fire at a beast and at a great distance from it there was a man and he saw him. He made an estimate of chances and he foresaw that, in view of the distance between the man and his target, the shot would not hit him, yet it happened. A is to blame but merely for negligence (Hypothesis 2). It would be erroneous to object that if foresaw that possibility of hitting him and that, therefore, I acted with wrongful intent (dolus) In this case a mistaken assessment of the chances is made and here lies A’s negligence because it was possible for A – if he had taken greater care to ascertain – to have foreseen what actually happened: yet it is still wrong to identify and confuse the foresight of not hitting with the foresight of hitting.
The matter would have been different if A shots a B with the intention of causing harm and in view of the distance A foresaw that he could kill B. Should the fact ensue, A is in a state of indeterminate wrongful intent with respect to such homicide. A is not liable to mere negligence because his act was done with the criminal purpose of causing harm. A man who acts with such purpose can never be guilty of mere negligence: because his negligence is in respect of the more serious result of the original wrongful intent.
7.4.2Objective theory
According to this theory, negligence is not a particular state of mind, but a particular kind of conduct. It is a breach of duty of taking care and to take care means to take precautions against the harmful results of one’s actions, and to refrain from the unreasonably dangerous kinds of conduct.
In this theory the question whether the event complained of could or could not have been foreseen and avoided is irrelevant: what is essential and sufficient is that the defendant has been responsible for conduct falling short of the standard of care which every man living in society is expected to use in his actions, and that such conduct has a direct and efficient casual connection with the ensuing harmful results. If these two conditions are fulfilled it is not necessary to prove that the event was foreseeable: inasmuch as negligent crimes are punishable not because the injurious result was more or less foreseeable; but because the law is making it an offence to be careless, imprudent etc.
7.4.2.1 Criticism of the Subjective theory Most of the writers agree that this theory is not acceptable. If the enquiry into the state of mind of the agent is set aside it may become impossible to distinguish between negligent wrong doing and accident, and between negligent wrong doing and intentional wrong doing. The negligence of needful precautions or the doing of dangerous acts is not necessarily wrongful at all, for it may be due to inevitable mistake or accident or even impossible to foresee. On the other hand it may be willful and not negligent. For example a poison bottle may be left unlabeled with the intent that someone drinks from it by mistake. In this case we cannot distinguish between intentional and negligent wrongdoing saves by looking into the mind of the offender and observe his subjective attitude towards his act and its consequences. If such consequences were foreseen and desired, the offence is intentional; if they were not foreseen nor desired, but could have been foreseen, the offence is negligent; if they were neither foreseen nor desired, not could have been foreseen, there is no offence but sheer accident.
There are some writers that in principle accept the subjective theory of negligence, yet hold that this theory is not wholly adequate. This is doubtless, they say, the commonest form of
40 General Principles of Criminal Law negligence but it is not the only form. If I cause harm, not because I intended it, but because I was thoughtless and did not advert to the dangerous nature of my act, or foolishly believed that there was no danger, I am certainly guilty of negligence. But there is another form of negligence in which there is no thoughtlessness or inadvertence, but I may expose other to risk. When I consciously expose another to the risk of wrongful harm, but without any wish to harm him, and harm actually ensues, it is inflicted – the said writers say, not willfully, since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but nevertheless negligent. Nothing that is not desired, however foreseen, can be said to be truly intended.
7.4.3Negligence under our Criminal Code
Like many other codes, our code refrains from giving any definition of negligence in the general provision, and of creating liability by reason of negligence. In the provisions concerning crimes in respect of which liability is contracted by reason of negligence, our law sometimes makes use of the single word ‘negligence’. At other times it uses the two words ‘negligence or imprudence (section 153). In yet other cases responsibility for the crime is incurred on account of “imprudence, carelessness, unskilfullness in an art or a profession or non-observance of regulation”. These words (negligence, imprudence and carelessness) are not defined, but it is clear that by them the law means generally the absence of such care and precaution as it was the duty of the defendant to take in the circumstances. As to the other two expressions they are self-explanatory.
Now the question arises whether in the system of our Code it is essential, in order that there may be liability for a negligent offence, that the harm caused should have been foreseeable by the accused. The answer is yes for the following reasons:
1. Our provisions regarding crimes of negligence are to a great extend modeled on the Italian Code which bases itself on the Subjective theory as regards this issue. Even though this was criticized by many authors, the courts seem to apply this theory; 2. In the second place, negligence, imprudence and carelessness are subjective facts. They connote the subjective attitude of the offender towards the acts and their consequences, which attitude prevents him from acquiring foresight and consciousness of them and but for which he could have acquired such foresight or consciousness; 3. According to Maino this subjective element is necessary even when the negligence consists in the non-observance of regulation.
All this means that whatever the form the negligence takes, if the ensuing harm was not only unforeseen but also unforeseeable there cannot be any question of criminal liability in respect of such harm: “pro casu fortuito handem orit”; saving of course, any liability contracted by reason of the fact itself constituting the negligence (e.g. the non-observance of the regulation) in so far as such a fact constitutes an offence known to the law. And when we say that the event was unforeseeable, we do not mean that it was unforeseeable absolutely: we mean only that it was unforeseeable by the standard of care, which the law required every man to use in his actions.
7.4.3.1 Standard of Care
There are cases were mere negligence is not enough. In these cases the law is not satisfied with the mere absence of any intention to inflict injury or to cause harm, but demands the positive use of such care as is calculated to avoid the possibility to avoid the harm or injury. The problem is what measures are does that the law demand.
41 General Principles of Criminal Law The law does not demand the highest degree of care of which human nature is capable. Our Code, as Impallomeni remarks, makes negligence consist in imprudence, carelessness, un- skillfulness in an act of profession etc. The law demands not that which conceivably possible but that which is reasonable.
The amount of prudence or care which the law actually demands is that which is reasonable in the circumstances of the particular case. This obligation to use reasonable care is very commonly expressed by reference to the conduct of a ‘reasonable man’ or an ‘ordinary prudent man’, meaning that “negligence is the omitting to do something that a reasonable man would do, or doing something a reasonable man would not do.”
7.4.4Degrees of Negligence
Writers who found their conception of negligence on the criterion of foresee ability of the event, distinguish between: 1. gross negligence (culpa lata) – foreseen by all men; 2. ordinary negligence (culpa levis) – foreseen by reasonably prudent men; and 3. slight negligence (culpa levissima) – where it could not have been foreseen except by the use of an extraordinary and uncommon care and does not give rise to criminal liability
Yet modern writers do like this classification since the law gives way only to one standard of care as explained above. Rather than saying that slight negligence is not a ground of criminal liability, one should say that where the harm could not have been foreseen and prevent, there is no negligence at all, for as we have seen, that the law requires the reasonable care an no man is negligent merely because he does not show more care: negligence either exists or it does not: if it exists, it is always punishable.
7.4.5Contributory Negligence
If the particular negligence imputed to the accused was not the efficient cause of the event, he cannot be convicted. It is however, no defense that the mischief was caused by the negligence of others, as well as that of the accused. If this was not so every party including the accused would plea this defense and no negligent person take part in the event would be accused.
Similarly, contributory negligence on the part of the victim is not a ground of defense. Contributory negligence on the part of the victim may, perhaps be a ground for lightening the sentence and “evidence which in a civil case might be given to prove contributory negligence, might in a criminal case be relevant to show that the death of the deceased was not due to the culpable negligence of the accused”.
The above seems to be the English doctrine. In Continental jurisprudence there is authority fir saying that if the negligence of the accused would not have by itself caused the injury without the contributory negligence of the victim, the accused is not liable. This principle, however proceeds only where the act or omission of the victim was deliberate and voluntary, and not necessitated or provoked by the original negligence of the defendant; or where it was the victim himself who gave the first cause to the injury suffered by him, by an unlawful conduct without which the injury to himself would not presumably have happened.
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42 General Principles of Criminal Law 8 Exemption form Criminal Liability
“All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to the single consideration of the want or defect of will”23 – Blackstone
The first notion that one must learn when he / she are learning Criminal law is the basic notion of Criminal responsibility: Actus non facit reum nisi mens sit rea. This simply means that for a person to be criminally responsible for any criminal act or omission done by oneself (the physical factor), one must have a mind capable of forming an intention (will) and capable of understanding the nature of the action being done by him: i.e. he possesses both will and judgment and is free to exercise both (the mental factor). Thus it follows that any element present that may interfere with the exercise of these two must be taken into consideration since it can affect the existence or degree of criminal responsibility.
The defences as accepted by our law can either exempt wholly or in part from criminal responsibility and are grouped as follows: 1. When the agent has not the use or full use of his intellectual faculties; 2. When the will or the understanding is not directed to the deed; 3. When the will is overborne by compulsions.
8.1 When the agent has not the use or full use of his intellectual faculties
8.1.1Young age
As Kenny puts it:
“A child knows right from wrong long before he knows how to make a prudent speculation of a wise will”.
This seems to contradict the main defence children less than 14 years of age have – Mischievous discretion24. In assessing responsibility, criminal law must take into account the fact that the acquisition of a full intellectual faculty that may enable a person to decide between right or wrong and the faculty of reasoning rightly takes time, and thus a child 25 must not be treated as a sane adult that commits a criminal offence. According to our criminal law there are different stages during childhood and adolescence until finally the child reaches the full requirements for a full criminal responsibility or liability (14 years of age). Therefore criminal responsibility must not be the same throughout this period of time. Our law divides children and adolescents into three (3) different age gaps and for each one there are different measures and presuppositions.
8.1.1.1 Under nine years of age
Section 35 (1) of the criminal code is very clear it says: “Minors under nine years of age shall be exempt from criminal responsibility for any act or omission”. This can be challenged under no circumstance. There is a conclusive presumption that minors under the age of nine
23 will here denote both the faculty of violation and that of understanding. 24 From English case law, by ‘mischievous discretion’ we understand that the minor knew not only that the act was wrong, but possibly seriously wrong 25 Until stated the word child refers to a normal child that does not have any impairments or difficulties apart from young age. Until stated these are to be considered as minors as well i.e. under 18 years of age
43 General Principles of Criminal Law are incapable of having any criminal responsibility. Thus they are not liable to any punishment what so ever even if an element of mischievous discretion (ħazen) is found to be present, for under the age of nine years, a child is deemed to be incapable of having any capacity of owing any discretion. The child is considered to be doli incapax (not knowing that his action was seriously wrong).
This however does not mean that nothing will be done. It still has the interest in the general public interest and in the interest of the child itself and so it makes sure the child shall be checked and corrected in case he shows or repeats any evil tendencies. Although the law does not inflict any punishment to the child “if the alleged fact to have been committed by the minor is proved and is contemplated by the law as an offence the court may bind over the parent or other person to watch over the conduct of the minor under penalty for non- compliance of a sum of not less than five and not exceeding one hundred liri…” (Sec 35(3). In sec 35 (5) parents are not held responsible for the act committed by he child but for not having looked after the child. Still this proves that the child is not liable to any criminal offence; he is in no way criminally responsible.
8.1.1.2 Between nine and fourteen years of age
The position of the law regarding this age gap is very similar to the previous. Although these are presumed to be incapable of distinguishing between good and bad, right or wrong and thus unable to formulate a criminal intent and so are exempt from criminal liability, this presumption is not conclusive: - it may be rebutted by evidence to the contrary. As it is stated in Sec. 35 (2) children in this age gap are not criminally responsible unless there is the proof of mischievous discretion. The mere commission of the act in these cases is not enough as in the case of an adult, to proof the guilty state of mind. The presumption of innocence is so strong, that it must be shown that the minor was conscious of the wrongfulness and consequences of his act. Such consciousness can be proved if the child has been previously convicted of some earlier crime.
Similar fact cases can be used as evidence to prove. Still for the minor to be subjected to any punishment the court must be satisfied with the proof brought in front of it against the child. If mischievous discretion is proven, then malice makes up for the lack of age and the minor can be held criminally liable “Malitia supplet Aetatem”. To proof this prosecution must bring out that the child understood what he or she was doing and knew that it seriously wrong apart from being also morally wrong. In this case it can adopt any of the disciplinary measures which are likewise applicable to children under the age of nine years. “(3) Nevertheless, in any of the cases referred to in sub-articles (1) and (2), the court may, on the application of the Police, require the parent or other person charged with the upbringing of the minor to appear before it, and, if the fact alleged to have been committed by the minor is proved and is contemplated by the law as an offence, the court may bind over the parent or other person to watch over the conduct of the minor under penalty for non-compliance of a sum of not less than five and not exceeding one hundred liri, regard being had to the means of the person bound over and to the gravity of the fact (5) For the purpose of the application of the provisions of the preceding sub-articles of this article, the parent or other person charged with the upbringing of the minor as aforesaid, shall be required to appear, by summons, in accordance with the provisions contained in Book Second of this Code.”26
26 Article 35 (3), (5) of the Criminal Code
44 General Principles of Criminal Law This has noting to do with vicarious liability; the parents do not take the responsibility on behalf of the minor but are responsible for having failed to look after him or her. The child that has been found guilty receives a mitigated punishment of a fine (ammenda) of not more than Lm 25 or a reprimand. However these can be locked up in an Institution as said in the Children and young persons (Care orders) Act of 1985. This mitigation is consented by law because the mind of the child maybe inexperienced, and could easily be lead by passion and temptation, even though it is recognising the mischievous discretion of the child.
8.1.1.3 Between fourteen and eighteen years of age
The law is very clear about this age gap and in Article 37 of the Criminal Code the following laid down:
“If the offender has attained the age of fourteen but is under the age of eighteen years, the punishment applicable to the offence shall be diminished by one or two degrees.”
Although at this age they are not adults according to law these can distinguish between good and wrong (doli capax) and are perfectly responsible for criminal offence
Age27 is relevant in cases of coercion (Article 33(b)) and in the cases of mistake of fact.
The Children and young persons (Care Order) Act (Chapter 285) is relevant when it comes to the punishment and to what will happen of the child after the sentence. Article 3(1) says:
(1) Where any child or young person is found guilty of an offence by or before any court of criminal jurisdiction, and in the opinion of the said court- (a) none of the other methods in which the case may be dealt with according to law is suitable; and (b) the child or young person is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, That court may, in lieu of sentencing him to imprisonment or dealing with him in any other manner available according to law, make an order committing him to the care of the Minister for a period of not less than one year and not more than five years:
Provided that an order made under this subsection shall, unless it has ceased to have effect earlier, cease to have effect on the date on which the child or young person in respect of whom the order is made attains the age of eighteen years.
In JM (a minor) vs. Runeckens, the court established that it is not necessary to prove that the child knew that the act was morally wrong; he must know that it is seriously wrong in the sense that it is not merely naughty but mischievous.
In Mc C vs. Runeckles a girl of thirteen was convicted because she knew what she was doing perfectly and the evidence of events were sufficient to rebut the presumption of doli incapax.
Moreover one can also argue that a child from a good home is probably more likely to distinguish right from wrong than one from a bad home, so he is more likely to be convicted. This is what happened in B vs. R (1958) Criminal Appeal Room 1 where a well-behaved child of good parents broke into a house while performing a scout activity. He was found
27 By age we also mean old age
45 General Principles of Criminal Law guilty because his good character rebutted the presumption that he did not know that he was acting in a seriously wrongful way.
In my opinion one must very cautious when making use of these types of arguments, since it is very arguable where and how is one to decide which is the good and bad family.
8.1.2Old Age
For the purpose of Criminal liability old age, has not by itself any relevance. In modern progressive systems account may be taken as regards the punishment, so as to be chosen an appropriate one for him. On the other hand Carrara observes one must expect that by reason of his experience and of cooling down of passion, old man should show greater respect for the law: his wrongdoing is more harmful to the community from the point of view of bad example that the wrongdoing of a youthful offender.
Yet old age is more likely to bring about deterioration of the mental faculties (senile dementia). In any such case it must be taken account as such and used as a defence as a reason of mental infirmity and not by reason of age. 8.1.3Deaf mutes
39. (1) Deaf-mutes, who at the time of the offence have not attained the age of fourteen years, shall be exempted from any punishment established by law: Provided that the provisions contained in article 35(3), (4) and (5) may be applied to such persons. (2) Deaf-mutes, who at the time of the offence have attained the age of fourteen years and who have acted without a mischievous discretion, shall likewise be exempted from punishment: Provided that the provisions contained in article 35(3), (4) and (5) may be applied to such persons.
40. The following rules shall be observed in the case of deaf-mutes who have acted with a mischievous discretion: (a) if at the time of the offence they have attained the age of fourteen but not the age of eighteen years, the provisions contained in articles 36 and 37 shall apply; (b) If at the time of the offence they have attained the age of eighteen years - (i) In the case of a crime liable to the punishment of imprisonment for life, they shall be liable to imprisonment for a term not exceeding twenty years; (ii) In the case of any other crime, they shall be liable to the punishment established by law diminished by one-third; (iii) In the case of contraventions, they shall be liable to the punishments established for contraventions.
8.1.4Insanity
“Law is not concerned with the brain but with the mind, in the sense that the ‘mind’ is ordinarily used, the mental functions of reason, memory and understanding.28”
28 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 164
46 General Principles of Criminal Law Insanity is a disease of the mind, nothing more nothing less. A person is considered to be insane if he does not have “la facolta di conoscere e di volere29” at the time of the commission of the act of omission of the offence.
Mamo, in his notes refers to two types of this decease: insanity and frenzy (which is a temporary state of insanity) which today are considered to be as one. Moreover In our present code we don’t have a definition of insanity.
English law distinguishes between two types of insane persons: i) Those who are completely unaware of their criminal conduct; ii) Those who know that what they are doing is criminally wrong and they would not have yielded to their criminal insanity if a policeman was at their elbow.
However in this distinction there is a great difficulty to draw the line of the demarcation between the two forms of insanity.
8.1.4.1 The Mc Naughton Rules
So now a more rational rule will be mentioned. This is accepted to test upon the presence or absence of the capacity to distinguish right from wrong in the acts or omissions. These are the Mc Naughton Rules which break down the intendere part but say nothing of the volere part. These rules are:
1. Everyman is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime until contrary be proved to the satisfaction of the jury;
2. The establish a defence on the ground of insanity, it must be ‘clearly’ shown that, at the time of the committing the act, the party accused was labouring under such a defect or reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or (if he did know his) not to know that what he was doing was wrong morally;
3. As to his knowledge of the wrongfulness of the act, the judges say “if the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to the law, he is punishable.” Thus the test is the power of distinguishing between right and wrong not, as was once supposed, in the abstract, but in regard to the particular act committed;
4. Where a criminal act is committed by a man under some insane delusion as to the surrounding facts, which conceal from him the true nature of the act he is doing, he will be under the same degree of responsibility if the acts have been as he imagined them to be. He may, for instance, kill under the imagination either that he is the executioner lawfully carrying out a juridical sentence, or, on he other hand, merely that the person killed had once cheated him at cards.
Sir James Stephen commented on these rules and considered them very abstract and they merely consider the effects of insanity upon the emotions and upon the will of the person. Insanity not only effects man’s beliefs, but also their emotions and their will. These rules seem to be based upon the effect of insanity over the belief of the accused; the belief of right and wrong.
29 The necessary for the recognition of Criminal responsibility
47 General Principles of Criminal Law 8.1.4.2 The Irresistible Impulse test
In addition to the Right Hon Sir H de Velliers, C. J. stated in a judgment that;
1. “where defence of insanity is interposed in a criminal trial, the capacity to distinguish between right and wrong is not the sole of responsibility in all cases;
2. In the absence of legislation to the contrary, the courts of law are bound to recognise the existence of a form of mental disease which prevents the sufferer from controlling his conduct and choosing between right and wrong, though he may have the mental capacity to distinguish between right and wrong;
3. The defence of insanity is established if it is proved that the accused had, by reason of such mental disease, lost power of will to control his conduct in reference to the particular act charged as an offence;
4. The capacity of the accused to control his own conduct must be presumed till the contrary is proved.”
The M’ Naughton rules must be supplemented by the Irresistible Impulse test. This implies that a person who knew he was committing and act which was morally wrong and / or prohibited by law may nevertheless be excused from responsibility if, by reason of his mental disease he lacked the power of conscious volition30 and inhibition to resist the impulse to commit the act. The power of volition and inhibition or ‘conation’ is necessary for the mental soundness as well as the reasoning capacity or ‘cognition’.
The modern tendency holds that the disorders of the volitional powers, resulting in irresistible impulsions to commit certain anti-social acts constitute a defence to a criminal charge in the same manner as disorders of the intellectual powers resulting to the inability to understand the wrongfulness of such acts.
8.1.4.3 Our Criminal Code
Insanity is dealt with in section 33 (a) of our criminal code which lays down that; “Every person is exempt from criminal responsibility if at the time of the act or omission complained of, such person – (a) was in a state of insanity;”31
• Our law has refrained from any attempt to define the conditions under which someone can plead mental unsoundness as an excuse for the wrong-doing, wisely leaving each case to be decided in the light of its particular circumstances; • Our law exempts a person from criminal responsibility if his acts under insane delusions caused b disease of the mind or if a person acts under automatism due to failure of the mind. So for insanity to constitute a defence, the accused must have committed an offence under default of mind and will; • Our law does not prescribe any tests.
To decide whether the defendant had a mental disease, our courts seek to find, if so, whether it was of such a character and degree, as to take away the capacity to know the nature of his
30 Voluntary exercise of the one’s own will 31 Provision (b) of the same article is nor relevant to insanity
48 General Principles of Criminal Law act and to help doing it so our law considers two elements of legal responsibility in the commission of every crime: 1) capacity of intellectual discrimination; and 2) freedom of will.
Madsley writes: “The nature of a crime involves two elements: first the knowledge of it being an act contrary to law, and, secondly, the will to do or to forbear doing it. There are insane persons who having the former are deprived by the disease of the latter: who may know an act is unlawful but maybe impelled to do it by a conviction or an impulse which they have no the will or the power to resist.”
Therefore, our law recognises insanity as an excuse not only when it deprives the offender of his powers of distinguishing the physical and moral natural and quality of the act charged as an offence, but also when it deprives him of his faculty of choice so as to exclude a free determination of his will in relation to that act. Insanity thus embraces all forms of disease of the mind, the word “mind” being used as a general name for the combined operations of intellect and volition.
Today the notion of furore is not anymore applicable to our law32. A sane person can use as his defence, temporal insanity not by disease by anger, jealousy or other passion (furie di sangue). Like English courts, Maltese courts presume that a person is insane under the contrary is evidenced and accepted by the same courts.
One must also mention that moral insanity is not an excuse.
Check whether ‘partial insanity’ is acceptable.
When the issue of insanity is decided in the affirmative, the accused is exempted from criminal liability, but nevertheless the defendant is not ‘discharged’. To set him free might constitute danger to himself and to others. So in all cases he it is ordered that he is to be detained in strict custody in the hospital for mental diseases.
620. (1) Any allegation of insanity, or of any point of fact, by reason of which, if true, the person accused would not, at the time or at any future time, be called upon to plead to the indictment, or be put on trial, or made to undergo punishment, shall first be determined by a jury. (2) Where any person after having obtained a conditional commutation of his sentence is, by the Executive Police, on account of the violation of the condition for the commutation of such sentence, again taken to prison or placed in the same state in which he was prior to such commutation, in order to undergo or continue to undergo his sentence, any allegation of fact made by such person by reason of which, if true, the said condition as literally expressed in the act of pardon would not be deemed to be broken, shall also be determined by a jury. (3) Any allegation referred to in this article shall be brought before the Criminal Court by an application. (4) On any such application, the court shall make an order, appointing a day for hearing the applicant and the Attorney General, causing them to be served with a copy of such order. . 621. Where the Attorney General intends to contest any allegation made under the last preceding article, he shall do so in writing.
32 Even though the Mamo notes contemplate this idea
49 General Principles of Criminal Law 622. The court may refer the determination of any such allegation to the jury already impanelled for the trial of the offence.
625. Where the Attorney General does not contest any allegation under this Title, the court shall proceed as if the truth of the allegation had been proved. 626. In all cases where, upon any allegation under this Title being proved, the trial cannot take place or is interrupted or the execution of the sentence is stayed, the trial shall be resumed or the sentence carried into effect, as soon as the impediment shall cease.
627. In all cases where it shall be necessary to impanel a new jury for the determination of any allegation referred to in the preceding articles of this Title, such jury shall be impanelled and shall proceed according to the rules established in this Code relating to juries.
628. In all cases referred to in the preceding articles of this Title, any allegation shall be determined by the jury by a majority.
8.1.5Semi-Responsibility
In our law there is no such thing as semi responsibility still the idea is taken care of in other Articles such as deaf mutes and provocation. According to our law however you are either responsible or you are not. Nonetheless an offence could be Excusable or Justifiable.
Excusable is when a person is deemed to be excused because of a ‘certain circumstance’ and the punishment is mitigated although the person is still found guilty or that offence. We also have excusable homicide where law hold out of mitigation of punishment as well. On the other hand, Justifiable offence as in the case of self- defence and lawful homicide, the person is not held to be criminally responsible and thus not exposed to any punishment. Sometimes what could be a justifiable offence becomes an excusable offence because some ingredients contemplated by law regarding self-defence are missing. Still, there is not such thing as semi- responsibility or diminished responsibility. The only thing is that there is a mitigation of power in the first with full responsibility while no punishment since there is no guilt in the second.33 8.1.6Intoxication
34 (1) Save as provided in this article, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if – (a) by reason thereof the person charged at the time of the act or omission complained of was incapable of understanding or volition and the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of the intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under sub-article (2) is established, then, in a case falling under paragraph (a) thereof, the person charged shall be discharged, and, in a case falling under paragraph (b), the provisions of articles 620 to 623 and 625 to 628 shall apply.
33 Refer to Sub-title III – V of Title VIII Of Crimes against the person
50 General Principles of Criminal Law (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be guilty of the offence.
(5) For the purposes of this article "intoxication" shall be deemed to include a state produced by narcotics or drugs.34
It is clear that getting drunk or intoxicate one self with narcotics to acquire courage; the so- called (Dutch Courage) in order to commit an offence is absolutely not permissible by law. The only instances where Intoxication may be used as a defence is Sub-articles (2) and (4) of Article 34
In Sub-article 2(a) the law excludes criminal responsibility in those cases where intoxication was induced by third persons maliciously or negligently and without the consent of the person intoxicated, this must be done either without his knowledge or against his will. In this regard a question may arise in the case of a prescription of a medicinal by a doctor which causes intoxication. In the first place in such a case it seems that neither the doctor not the patient was aware of the effects of this medicinal. But the position is not that simple because in such a case one might well find that there was no negligence on the part of the doctor, however it must be admitted that the intoxication was brought on the accused against his will. In such a situation one must therefore take intoxication into consideration in the terms of 34(4) in order to establish whether it was such so as to impair his mental capabilities to the extent that he could not form the specific or other intent required for that specific crime. The reason is because if after realising his state of intoxication he willingly decided to commit that crime and knew perfectly well what he was doing then he will be answerable. He will not be criminally liable however, if he was incapable of understanding or volition. Two conditions are thus required to be satisfied in order to exclude responsibility, that is to say, the intoxication must be ‘accidental’ in the sense afore-said, and ‘complete’, that is rendering the person for the time unconscious of his acts or incapable of understanding and volition.
Contrary to sub-article 2(a), sub-article 2(b) accepts intoxication (even self- intoxication) that may bring about a state of insanity, either temporarily or otherwise at the time of such act of omission. According to our law, this implies the lack of the powers of understanding and volition in a person and therefore his inability to form a proper mens rea. In this state of affairs, the person is not criminally responsible yet after being declared insane, he is sent to a mental institution where he will stay at the pleasure of the President of the Republic.
A problem may arise if a person is intoxicated in the way mentioned in Sub-article 2(a) and (b) but he still knows what he is doing and has “la capacita di intendere e di volere”. Or vice versa he does not have “la capacita di intendere e di volere” but this was not as specified in 2(a). Should we interpret these sub-articles separately or conjointly?
In my opinion sub-article 4 should apply only if intoxication occurred as described in sub- article 2 (a) and (b). When referring to sub-article 2 it is obvious that the law wanted that the only instances when intoxication could be used as a defence are two When a person is induced with substances against his own will or without he being conscious of it, and in the case when intoxication would result in insanity either temporary or otherwise. In both cases he was unable of forming a mens rea – therefore no criminal responsibility. But in sub-article 4 it is said that if the person accused of an offence had formed any intent he would be criminally liable, since it is only in the case that he did not form intent, that he would not be guilty of the offence. If this article was to be used separately from sub-article 2
34 Article 34 of the Criminal Code of the Laws of Malta
51 General Principles of Criminal Law then we would have a loophole in article 34. Because, if (1) he drank and/or took so many drugs to the extent that he intoxicated himself and consequently (2) he acted without having the understanding and the volition of doing such illegal act, then, according to this act, he would be free from any criminal liability. This contrary to sub-article 2 which restricts the cases only to the two mentioned in the same article
One must also notice that the same conclusion is reached in these sub-articles. That is, in all these circumstances mentioned, the person is not criminally liable since he is unable of forming a mens rea.
The curious thing is that the words referring to mens rea in the two articles are different but mean the same. While in sub-article 4 the word used is intent, that is when the person concerned had formed an idea of doing something, thus by not forming any intent he did not have the understanding and also the will of doing any illegal action, in sub-article 2 (a) the phrase used is ‘incapable of understanding or volition’. Thus both sub-articles are referring to the incapacity of forming a mens rea. Yet sub-article 2(a) and sub-article 4 are contrasting each other for the reason mentioned previously. It seems that although these articles are trying to reach the same conclusion one may seem as if disregarding the other.
The first sub-article states that the only case when intoxication should be used as a defence is when the “person charged at the time of the act or omission complained of was incapable of understanding or volition and the state of intoxication was caused without his consent by the malicious or negligent act of another person”. On the other hand according to sub-article 4, intoxication could be used as a defence whenever the person was not able of forming any intent because of drunkenness or intoxication by means drugs.
Thus I think that to avoid any unnecessary loopholes one must interpret sub-article 4 only to strengthen sub- article 2. These article should be interpreted conjointly using Logical interpretation, so that article 34 would avoid that a person uses alcohol or drugs before committing an offence so to increase his courage, the so-called Dutch Courage, and also to use it as a defence in his favour if ever he is tried. I belief that the intention of the legislature is to prevent the above from happening.
Thus this would also mean that when someone is given substances against his will or without he being conscience of, but still he was able of forming any intent or else capable of understanding or volition, then he would be liable to criminal responsibility for any criminal act committed in this state. This is strengthened both by sub-article 2(a) and also by sub-article 4.
This problem has been extensively dealt with by our courts in many cases and the position has been summarised by the Court of Criminal Appeal in its Judgement of 17/6/86 in re P. vs. Bassler Beat Jorg.
8.1.7Somnambulism and Hypnotism
The acts committed in sleep by persons who suffer from somnambulism may seem as deliberate acts; yet they are merely mechanical, automatic acts undirected by volition and unaccompanied by consciousness. The old notions that such acts are but reactions to and the reflex of the man’s thoughts and intentions when awake, find no support in modern science; and, in any case, criminal law is not concerned with mere thoughts and intentions especially when the act is not accompanied by will and understanding. Even if the somnambulist is aware of his problem and he knows that he may perform offences while he is asleep and thus should take precautions, any punishment which the law could inflict, would not be for the act done in sleep, but for the lack of precautions taken during the time his is awake.
52 General Principles of Criminal Law Hypnotism is difficult to define. It may be said to be a sleep-like condition, the condition being based upon physiological states of the brain and the nervous system. During these states the subject is under the influence of the suggestions of the operator. In the present state of knowledge, however, it is still an open question whether criminal suggestions may be conveyed to hypnotised persons. In fact it is held by some, that the execution of improper deeds or crimes cannot be suggested to persons of rectitude or law-abiding persons in the hypnotic state, who are protected from so acting by their moral consciousness. In this state a person would be a mere instrument in the hand of the operator, who would be the real and sole offender.
8.2 Where the will of the understanding are not directed to the deed
In this section we will speak about Accident and also about two types of mistake: of law and of fact. 8.2.1Mistake
Mistake has been very well described by a jurist as the “ignorance of that which is and the knowledge of what is not.” In criminal law there is no difference between ignorance of law and mistake of law, the difference is between mistake of law and mistake of fact.
8.2.1.1 Mistake of Law
Mistake of law is like is the same as ignorance of law. Blackstone puts forward why “Ignorantia juris neminem excusat”. 1) He says that everybody should know that part of the law which concerns him; 2) Law, being in harmony with the rules of natural justice finds a secure basis in the consciousness of man; 3) Accepting as a defence would render administration of justice next to the impossible.
On the other hand Salmond criticises Blackstone’ ideas by saying that: 1) It is a far fetched ideal to assume that everyone knows the law; 2) In such a complex society man would need something more than conscience to guide him; 3) It is impossible to distinguish between invincible and negligent ignorance of the law. Moreover it seems that this rule does not, in its full extent and uncompromising rigidity, admit of sufficient justification.
In other codes like those of Italy and the British, this rule is very much emphasised. For example in the Italian Criminal Code of 1889 it was stated that “Nessuno puo invocare a propia scusa l’ignoranza della legge penale”. In place like Britain this rule applies with rigour. For instance, a sailor was convicted of an offence which had been enacted during the time he was away and therefore it was not possible for him to know about this prohibition. This is perhaps a too rigid application of the rule, for as Manzini points out, the duty of knowing the law only exists in so far as it is possible to discharge it: therefore it is manifest that ignorance of the law should be available as an excuse, when it is absolutely physically impossible to know such law, as for instance, when it is published after the date appointed for the commencement of its operation
Some Jurists say the rule must not apply so rigidly for foreigners that have been in the place only for a few time especially when it comes to police contraventions, contemplated by the laws of their own country.
53 General Principles of Criminal Law This rule does not only apply to knowledge of the penal law but also as regards the interpretation of it. Otherwise it would be very easy to evade the observance of law on the pretext of misinterpretation. Manzini states that although a mistake of law leaves the offender liable it may nevertheless afford a good ground for mitigation of punishment.
8.2.1.2 Mistake of fact
Contrary to mistake of law, mistake of fact may result to be a good defence if the following 2 criteria are fulfilled.
1) The mistake must merely accidental. It must be of such nature that if the mistake did not take place and the accused would not be guilty or liable to any criminal responsibility. An e.g. of this is when a man takes something he thinks is his own but in fact he is mistaken. In this case the person is not guilty of theft. On the other hand if the man steel a thing instead of another it does not make any difference which think he wanted to steel. The fact is that he still wanted to steel, but he made a mistake taking one thing instead of another. Similarly, if a person intended to kill B but he kills A by mistake, he will be liable for wilful homicide. Such mistake may at best affect the degree of liability as laid down in Article 234 of the criminal code. Yet if a person instead of killing the burglar, who broke into his house, kills someone else then the person is not guilty because his intended action is justifiable homicide and can plea mistake of fact as a defence.
2) The mistake must also be inevitable, in a way that it could not be avoided by the exercise of reasonable care. An example given by Kenny is the following: A gentleman, who fires off his gun, leaves it empty before going to church. In the meantime someone else uses it leaving it loaded. On his return, whilst handling his gun, whilst his wife is in the same room, he touches the trigger and fires a bullet in his wife’s direction, killing her. In this case there is no way that the man would have believed it to be loaded and may plea as a defence ‘mistake of fact’.
A mistake which is both essential or accidental and inevitable excuses from all criminal liability. On the other hand, a mistake which is essential but culpable, though it may exempt from liability in respect of wilful wrong-doing (dolus), may leave unimpaired he liability of negligence (culpa).
8.2.1.3 Accident
Harry says that the term accident is used in the following senses: (1) A consequence due to some external agency over which the accused had no control e.g. where a person is killed in the street by a horse bolting against the will of the rider. The person is not guilty since there is no act or omission on his part. (2) An unintended consequence of a voluntary act e.g. where a man is working with a hatchet and the head by accident flies off and kills a person standing by. 8.3 Where the will is overborne by compulsion
“As punishments are only inflicted for the abuse of that free will which God had given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion” Blackstone
54 General Principles of Criminal Law 8.3.1Coercion “Every person is exempt from criminal responsibility if at the time of the act or omission complained of, such person … (b) was constrained thereto by an external force which he could not resist.”35
An Act done under physically coercion cannot be a criminal offence. If, for example, A seizes the hand of B and compels him by physical force to stab C, it is clear that B commits no criminal offence because the act is not his. He is but an instrument in the hands of A: he does not act but is acted upon: ‘non agit sed agitur’.
Moral coercion operates as a ground for exemption from criminal responsibility when it completely suppresses the possibility of a normal determination on the part of the person doing of omitting the fact. Yet if the commissioner or the emitter has had the time to think and decide upon his act, the offence is imputable but still the court may mitigate the punishment having regard to the circumstances. For total exemption from punishment, the external force must be truly ‘irresistible’ and not merely ‘unresisted’ (could be resisted but did not). This is why most writers limit the notion of moral coercion to threats of death or serious personal injury: for it is only such threats that may deprive the victim of his freedom o choice and compel him to commit the offence. On the other hand threats of injury to property are not sufficient because as Cheuveau et Helie wrote: “It is certain that the fear of a mere pecuniary loss cannot be considered as a force which the actor could not resist: there is nothing but the fear of death, or of grievous bodily harm which may suppress the will and compel the determination. If on the other hand, the law cannot expect from the accused a heroic firmness of character, it cannot either pardon the blameable weakness.”
One must also make a difference between fear and force. If a person goes through a marriage contract with fear only (he could resist but he still went through) then the marriage would still be valid since he still had some freedom of choice. But if fear could not be resisted for he had no freedom of choice, his free will was annihilated totally due to this threat, and then there was no contractual obligation in marriage.
When we say that he could not resist, it means that he had no freedom of choice. This depends on who is making the threat and who is being threatened. This force must be such that it could not be resisted and not merely ‘was not resisted’.
Pessina lists three elements which would exclude criminal responsibility. 1) Imminent danger, 2) of a harm which the victim of the threat apprehends as more grievous that the harm caused by the offence and c) which he could not avert except by committing the act contrary to law.
8.3.2Jus Necessitatis
Necessity and coercion are very similar. The origin and source of the threat in coercion comes from another person; in necessity it usually comes from a serious of events or circumstance which have not been put into effect by anyone. Our law does not recognise a defence of necessity where in order to save myself I have to commit an offence. One may find oneself in a position where there is no physical coercion but he is in a situation where one either commits a criminal offence or else something very serious will happen to him.
The problem to be discussed is the more difficult one that arises where a person is able to choose between two courses, one of which involves the breaking of criminal law and the other
35 Article 33 (b) of the Criminal Code of Malta – also applies to Jus Necessitatis
55 General Principles of Criminal Law some evil to himself or other of such magnitude that it may be thought to justify the infraction of the criminal law. In an American case the master of a ship was held not guilty for violating an embargo act by illegal entry into a port when, as the result of a storm the course was ‘necessary’ for the preservation of the vessel and the cargo and lives of those on board.
The leading case of necessity in English Law is Rex vs. Dudley and Stephens (1884). These men were accused of the killing of child. These were lost in open sea without food or drinks and were reduced to drink their urine. Finally they killed the cabin boy and ate him for he probably would not have survived. In rejecting the defence of necessity in this case, Lord Colleridge constantly switched from the notion of Justification to the notion of excuse. There was no necessity why the boy had been killed and not the others. It was held that the mere necessity for self-preservation was not a defence for their action and thus they were guilty of murder.
Another case is the case of Willer of 1986 yet the situation is not as extreme as the previous one. Willer was accused that he drove his car on pavement into shopping precinct and out to escape from someone who was attacking him. He was tried for reckless driving and the judge refused to accept the defence of necessity.
None what so ever, English writers have been willing to accept this ground of defence. Sir James Stephen wrote: “It is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it: but these cases cannot be defined beforehand”.
For our law it is essential in order that there may be exemption from punishment, that the agent should have been constrained to the deed by an external force which he could not resist. Other impulsions may serve only to mitigate the punishment but not to exclude it altogether.
8.3.3Legitimate Self-Defence
One must start off by saying that a defence must be legitimate and not only self defence.
The state of necessity which we have just considered arises, as we have said, where, owing to an accident or force, a man finds himself in the necessity, in order to preserve himself, or injuring another person who is not guilty or any wrongful act towards himself. The justification of legitimate defence, on the other hand arises where a man repels by force the violence or aggression of another man against whom precisely the act of the agent is directed. Our code mentions this justification in connection of homicide and bodily harm: No offence is committed when a homicide or a bodily harm is ordered or permitted by law or by a lawful authority, or is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person.
Cases of actual necessity of lawful defence shall include the following: (a) where the homicide or bodily harm is committed in the act of repelling, during the night-time, the scaling or breaking of enclosures, walls, or the entrance doors of any house or inhabited apartment, or of the appurtenances thereof having a direct or an indirect communication with such house or apartment; (b) where the homicide or bodily harm is committed in the act of defence against any person committing theft or plunder, with violence, or attempting to commit such theft or plunder;
56 General Principles of Criminal Law (c) Where the homicide or bodily harm is imposed by the actual necessity of the defence of one’s own chastity or of the chastity of another person.36
NOTE: IF THE THREAT IS NOT DIRECTED TO YOU (YOUR BODY) BUT IS DIRECTED TO THE PROPERTY YOU WILL NEVER BE JUSTIFIED FOR HOMICIDE OR BODILY HARM. Note see Police vs Salvu Psaila - judge William Harding
Every person has a natural inherent right of personal security, consisting in the enjoyment of his life, his body and his limbs. Where the hand of the State on account at the time or place in which the aggression takes place cannot intervene to protect him, every person is entitled to resist by force any wanton (unrestrained) aggression. The repelling of aggression by force is an instinct. Legitimate defence may not only justify personal injuries, but also other acts objectively injurious to the rights of others: as for instance, when a man apprehends, detains and confines his aggressor. Moreover the plea of legitimate defence can be set up in justification of an injury causes to an innocent third party, as, when a man, hotly pursued by an aggressor, breaks into the house of another person. Even our codes only speak about homicide and bodily harm, yet the courts had to extend the effects of the same justification to other offences also.
But the law rightly imposes certain conditions in the absence of which a plea of legitimate defence cannot be successful. The evil threatened must be:
1) Unjust 2) Grave 3) Inevitable
Unjust – The threat must be unlawful. Thus this requirement fails when the evil threatened is lawful, that is, commanded or permitted by law; as for example, in the case of a man sentenced to death who, to save himself, kills the executioner, or in the case of a man who resists the police who, in the execution of their duties, proceed to his arrest.
Grave – The act of defence must have been done only in order to avoid consequences which, if they had followed, would have inflicted upon the person ‘irreparable’ evil; and the law considered as ‘irreparable’ and consequently grave, that evil which threatens the life, the limbs, the body, or the chastity of an individual. Mere interference of property will not usually justify the homicide or a bodily harm: such a justification will not arise unless the interference amounts to a crime which is violent, such as theft with violence or plunder, or which takes place under such circumstances as to raise a reasonable apprehension of danger to life or personal safety; as where the homicide or bodily harm is committed in the act of resisting, at night, the breaking into one’s residence. But of course, the gravity of the aggression must b understood in relation to the defensive reaction and to the means at the disposal of the agent.
Inevitable 37 – The accused must prove that the act was done by him to avoid an evil which could not otherwise be avoided. In other words the danger must be sudden, actual and absolute.
Sudden - For if the danger was anticipated with certainty, a man will not be justified who had rashly braved such danger and places himself in the necessity of having to suffer death or
36 Article 223 and 224 of the Criminal Code of Malta 37 Carrara
57 General Principles of Criminal Law grievous injury or to inflict it. So you must be in a position were you did not have enough time to asses the threat.
Actual – If it had already passed, it may, at best amount to provocation or, at worst, to cold- blooded revenge, and not to legitimate defence: if it was merely apprehended then other steps might have been taken to avoid it. So it must be at that time not after, inkella jigi revenge
Absolute – Whether at the moment, it could not be averted by other means. It is disputed whether the person is bound to retreat, if possible, before killing or inflicting bodily harm. In English law seems to be in favour of retreat while American law is in favour of self-defence. In Malta it is not yet clear, but still self-defence is quite accepted. The principle of comodus dixessus. Meaning that in Malta if you have a chance to flee you are bound by law to try to escape the treat.
8.3.3.1 Proportionality
The defence must be proportionate to the attack and to resist it. The element of proportionality introduces us to another aspect of self-defence. So far we have analysed the necessary conditions and situations where an act of self-defence provides a complete justification i.e. no guilt in the eyes of the law. Your reaction must be proportion to the treat against you.
However we can also have an excess of self-defence. It can be said that this occurs when the victim in order to apprehend the danger adopts means which are not proportionate to the attack and which go beyond that which is necessary to resist the attack. For instance A attacks B and starts punching him in the face; B in some way or another frees himself takes out a gun situated in his pocket and shoots in the direction of A, causing his death. Article 227 (d) provides that if a person acting in self-defence exceeds the limits imposed by law, by the authority of by the necessity shall be considered to have committed an excusable wilful homicide or justifiable bodily harm.
Thus contrary to justifiable homicide or grievous bodily harm we have the agent who is liable of having committed an offence which is considered by law as excusable. In this case the agent will not be totally exempt from liability and punishment, however there will be a mitigation of punishment in both cases.
However when analysing each case, one has to take into consideration the state of mind of the accused. It is not allowed that a man keeps a calm and balanced judgement in the face of a serious and imminent peril and, therefore miscalculations and errors of judgement under such circumstances are inevitable. Our criminal code, very wisely goes on saying that if a person is in excess of legitimate self-defence caused due to the suddenness of the danger confronting him, fear or fright the accused shall not be liable to any punishment.
8.3.4Civil Subjection 8.3.5Provocation
In all the cases you have to prove 1 that the person lost his self control and did the offence in the heat of blood, and 2 that a normal person of ordinary temperament would also in the situation have lost his self control . jigifieri jekk taqbizlek ghax jghidlek bongu ma tigiex skuzat
58 General Principles of Criminal Law Provocation exists, in response to conduct on the part of he deceased or victim the accused loses his self-control and takes life. Provocation is frequently pleaded alongside self-defence, but is to be distinguished from self-defence, which is a complete defence, which leads to acquittal while, provocation leads to a mitigation of punishment.
According to Hume ‘no provocation of words, the most foul and abusive, or of signs or gestures, however contemptuous or derisive so ever, is of sufficient weight in the scale.’ Macdonald is similarly unambiguous: ‘words of insult, however strong, or mere insulting or disgusting conduct, such a jostling or tossing filth in the face, do not serve to reduce the crime of murder to culpable homicide’.
1. The defendant must have killed because he was provoked, not merely because provocation existed. There must be a causal relationship between the provocation and the killing. So if the defendant sought the provocation in order to kill his opponent the punishment will not be mitigated. Except in such circumstances, the requirement of causal relationship hardly limits the defence, because there is provocation followed immediately by a killing. The causal relationship will be readily inferred unless there is evidence of premeditation.
A man who carries a weapon with which he kills will be in danger of failing in the defence of provocation if the jury think that the provocation was a mere pretext for the use of the weapon. But there is no rule excluding the defence in these cases. Even though the defendant was carrying the fatal weapon, the defence of provocation is capable of succeeding if he had no intention of using the weapon before the provocation was offered.
2. The law attempts to distinguish between a killing in cold anger, when there is a deliberate decision to kill after weighing up the pros and cons, and an impulsive killing in hot blood where there is no weighing up at all. This distinction seems to make sense, however sometimes it may be hard to apply. In practice it is decided by the immediacy of the defendant’s response to the provoking event. This must be sufficiently recent for the defendant to be passionately affected by it at the moment of killing.
If the interval occurs between the provocation given and the act done, it is a question of fact whether the passion excited by the provocation still continued or whether the defendant had calmed down. Unless the interval is very long, the question must be left to the jury. In 1928 the court of Criminal Appeal considered not impossible that provocation should be a defence where the interval that had elapsed was between 15 and 20 minutes and the weapon was a knife. On the other hand, where the lapse of time was as long as 36 hours, the court of Criminal Appeal apparently took the view that the issue of provocation need not have been left to the jury. On the issue of cooling time, reliance is sometimes placed by the prosecution, on the fact that the defendant did not have the weapon on him at the time and so had to fetch it. In this case the accused took up some time and had time to think on his action. In the meantime he could have taken up some other business in the meantime, or that he meditated his revenge and used some trick. This denotes that the action was thought of rather than caused by violence and ungoverned passion.
In an American case, where the slayer tried to make a telephone call in the interim, this was held to show that the killing was not in the heat of passion, though the cooling time would not otherwise have been thought sufficient. On the other hand an English
59 General Principles of Criminal Law Judge accepted a plea of guilty to manslaughter upon provocation notwithstanding that a telephone call had intervened.
In Police vs. Emanuel Tabone, Mr Justice V. De Gaetano in his judgement said the following “… il-provokazzjoni trid tkun tali “illi f’nies ta’ temperament ordinarju komunement iggib l- effett li ma jkunx kapaci li jqisu l-konsegenzi tad-delitt”
“where it is committed by any person acting under the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting;
the offender shall be deemed to be incapable of reflecting whenever the homicide be in fact attributable to heat of blood and not to a deliberate intention to kill or to cause a serious injury to the person, and the cause be such as would, in persons of ordinary temperament, commonly produce the effect of rendering them incapable of reflecting on the consequences of the crime;”38 ______9 Attempts
(1) Whosoever with intent to commit a crime shall have manifested such intent by overt acts which are followed by a commencement of the execution of the crime, shall, save as otherwise expressly provided, be liable on conviction –
(a) if the crime was not completed in consequence of some accidental cause independent of the will of the offender, to the punishment established for the completed crime with a decrease of one or two degrees;
(b) if the crime was not completed in consequence of the voluntary determination of the offender not to complete the crime, to the punishment established for the acts committed, if such acts constitute a crime according to law.
(2) An attempt to commit a contravention is not liable to punishment, except in the cases expressly provided for by law.39
Every offence has its beginning and its consummation (completion). Generally, the beginning of the offences is only a thought. This thought can actually spring to mind in a matter of seconds but there is still the thought. Under our law, thoughts on their own are not punishable unlike under English Law, which has the doctrine of conspiracy (the exchange of thoughts between two or more persons). The next step is to manifest your thought simply by exchanging your views with someone else. Manifestation may involve speaking but it could also involve materiality (doing something).
This manifestation is followed by acts of preparation. Then, one passes on to the acts of commencement of execution and finally if the plan is successful, there would be the completion / consumption of the offence. For example for a person to commit a homicide there could be various other offences committed and completed done to arrive to the final scope of the offender.
Manifestation of Acts of Acts of Completion of thought preparation Commencement of offence Execution
38 Article 227 (c) of the Criminal Code 39 Article 41 of the Criminal Code
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Yet not all crimes succeed. The shot which misses its target, the bank robbery which is interrupted by the timely arrival of the police – all these are examples of attempted crimes. In such circumstances, no overt damage may be done to the community. The victim of attempted homicide may not even be aware of the damage. Most of the time the actual deleterious consequences of an attempted crime could be even considered as negligible. No great harm is caused by the would-be robbers who are caught by the police just before they start the robbery. Yet the person who was to be poisoned may resent some effects even if his poisoning is prevented. 9.1 The punishment of Attempts
As regards this matter there are various points of view – extending from one extreme (total non – punishment) to the other extreme (punished as if they were committed crimes. The argument for total non-punishment of attempts is not convincing. An attempted crime constitutes a threat to social peace and a challenge to the legal order. To ignore attempted criminal offences it tantamount to condonation, and therefore a legal response to attempted crime is both justified and necessary. Yet this response must be a measured one, and should reflect the actual gravity of what has been done by the accused.
The other extreme is that there should be no distinction between committed crimes and attempted crimes. If criminal law is concerned with the moral assessment of conduct, then it should be bound to punish even attempts and there should be no distinction according to results. From the moral point of view he who desists from continuing his offence, or does not succeed and he who succeeds in his offence are on the same level of wrongfulness. While this argument has undoubted appeal, its application in criminal law is generally thought to be inappropriate. Criminal law is concerned with results – inevitably so – and there are clear reasons why the law should focus on what actually happens in the physical world rather that what might have happened. Attempts are therefore less serious because they fail to satisfy necessary requirements for the full criminal sanction. In addition to this attempts cause less damage than completed attempts. Moreover an offender who desists from committing the crime has the incentive of a lesser punishment. If on the other hand the two had the same punishment committing of not the offence would be irrelevant for the offender. Thus he would not care whether he kills or not the victim.
According to Maltese Law the offence can be unsuccessful either in consequence of some accidental cause independent of the will of the offender or through the voluntary desistance of the offender. However, in both cases there would still be an attempt. According to our law, there are two ways of desistance: accidental and voluntary. Accidental in the sense that if it was for the offender’s will he would continue with the offence, yet an accident occurred which prevented this continuance. In this case the punishment is mitigated by one or two degrees. It may occur that an offender commits various other crimes, as part of the acts of preparation, so as to attain the final result (e.g. homicide) yet when he is about to commit the murder an accident occurs. In this case he is punished for the other crimes commenced and completed but the punishment for homicide is mitigated by one or two degrees. On the other there is voluntary desistance. This implies that there have been acts of commencement of execution but the crime has not been completed due to a voluntary determination. In these cases the punishment is given for any acts already committed if those acts amount to a criminal offence in themselves.
61 General Principles of Criminal Law 9.2 Distinction between Voluntary desistance and Accident in Malta
Even though there is a very thin line between one and another distinction is possible and can be easily illustrated by means of the following examples. Two youths were in the car park of the Hilton Hotel. One of these youths was armed with a pistol, which however did not work. They knew that in a particular room of the hotel, there was a German, whom they were acquainted with and whom they thought, was not at the hotel at the time. One of them climbed up the balcony of this particular room, but as soon as he went inside he heard someone snoring so that he panicked. He jumped out of the balcony and was immediately caught by the police. The youths had intended to commit theft and their plea was that the theft had not happened because of voluntary desistence of at least one of them. On another occasion, a person who is inside a house with the intention to commit a theft, sees a picture of the sacred heart and he desists from committing the crime. What is the distinction between the two situations?
In the case of the two youths, had it not been for an accidental circumstance independent of their will, i.e. the unexpected presence of a person in the hotel room, the two youths would have continued with the commission o the crime. They had apparently thought that the German would not be at the hotel room at that time, so that his being there was accidental and independent of their will. The accidental cause acted by way of psychological compulsion upon the will of the youth who climbed up in the hotel room, compelling him to desist. The presence of a person in the room scared him and it raised the spectre of his being caught. His desistance from committing the crime was compelled by the accidental circumstance and not voluntary; it was imposed upon him by an external agency independent of his will.
However, in the second case, the person who is inside the house, ready to commit theft, and who desisted after noticing the picture of the sacred heart is voluntary desistance and is not being interrupted by an accidental circumstances independent of his will. It is true that the fact that the picture was placed there, was accidental and did not depend on his will, but the law does not require that the desistance should be absolutely spontaneous, that is, prompted solely by repentance or returning good feeling independently by any other motive. The law is satisfied if the desistance was voluntary or if the determination of a crime was made freely by him, and not imposed upon him by some external agency, independent of his will. In this case, the agent had abandoned his attempt to commit theft by desisting freely out of a change of mind which was prompted out of repentance. This u-turn was brought about by noticing the picture of the sacred heart which did not amount to an impediment to the further execution or the completion of the crime, confirming that his desistance was voluntary.
The distinction between the two cases is that in the first case, the desistance was imposed upon the offender by an accidental external agency independent of his will. Had it not been for this accidental circumstance, which offered a serious threat to the continuance of the offence, the offender would have completed the crime. In the second case, the offender, after noticing the picture of the sacred heart, voluntarily desisted out of a change of mind. Contrarily to the first case in the second this did not amount to an impediment to the further execution of the offence. The view of the holy picture did not amount to a fear of being caught but rather to a moral fear of good wrong. 9.3 What conduct amounts to an attempt?
In most common law systems, legislation defines the point at which a punishable attempt is committed. Their codes require that the accused should have gone beyond mere preperation
62 General Principles of Criminal Law for the commission of the offence. Continental penal codes similarly set out criteria of varying precision as to when an attempt occurs. Yet the most difficult thing still remains, to distinguish between acts of preparation and acts of commencement of execution. In the Italian Code the line of demarcation has been pushed backwards because it simply speaks of the following: ‘atti diretti in modo non equivoco a commettere un delitto’.
The difficulties inherent in deciding when an attempt occurs are illustrated in the following hypothetical sequence:
1. A decides to rob a bank; 2. He purchases a map of the town in which the bank is situated; 3. He visits the town and walks past the bank to view from the outside; 4. He enters the bank and discreetly sketches the layout on a piece of paper; 5. He buys a gun to use it on the robbery; 6. He sets out from his house, armed with the gun, a face mask and a bag for the money; 7. He enters the bank wearing the mask but not yet pointing the gun or making any demand; 8. He points the gun at the cashier and asks for the money; 9. The cashier presses an alarm button. A, losing his nerve, runs out and returns home.
There is little doubt that at some point in the series of events, A may be said to have attempted to rob the bank. Yet the point at which the attempt actually occurs is not clear. If A were to be interrupted and arrested at point (1), there would be no attempt since he was not able to proceed further. Criminal law does not recognise ‘thought crimes’. A person may form criminal thoughts in his mind but since he does not proceed he won’t have committed a criminal offence. It is equally clear that by point (8) an attempted crime has been committed; yet, between these extremes, the position may be less certain. Some may regard (6) as marking the watershed between preparatory action and attempt; others may feel that it would be premature to infer an attempt even at this point
It is useful to distinguish, even if very difficult an attempt from what is not. An attempt is not a completed act; equally it is not mere preparation. A prospective purchaser of an item does not attempt to purchase an item when he consults an auction catalogue or inspects the item at a viewing. It can be said however, that an attempt is made to purchase an item once a bidding instruction is given. The acts which recede that are preparations for the actual making of the attempt; they are preparations for the actual making of the attempt; they are not sufficiently close to the completed action to be categorised as attempts. Preparatory acts may be fundamentally different in nature from attempts, in that they are not unequivocally referable to the actus reus of a crime. Moreover, the idea that preparation does not amount to an attempt allows the law to recognise the valuable possibility of withdrawal from a criminal plan at an early stage. It seems rights and sensible that the law should, so far as is consistent with public safety, encourage repentance before matters proceed too far.
A potentially useful way of distinguishing between preparatory acts and attempts is to ask whether the accused was, at the point in question, ‘trying to do the criminal offence’. If the answer is yes, ten he has gone beyond the point of preparation; if the answer is no, then he is merely preparing.
Under our Law up to the acts of Preparation, no offence is committed, unless what has been done up to that points, amounts in itself to some other specific offence. The most difficult
63 General Principles of Criminal Law thing is to distinguish between acts of preparation and acts of commencement of execution. When the commencement of the execution starts we would be able to speak of attempts.
According to Article 41 there must be a manifestation of such intent (thought) by overt acts. Thus there is the emphasis that there must be an external manifestation of this thought or intent, which must be externalised even by talking. This manifestation must be followed by the commencement of the execution of the crime.
‘Whosoever with intent to commit a crime shall have manifested such intent by overt acts which are followed by a commencement of the execution of the crime’
In the case P vs. Lawrence Patrick Ciantar u Mario Barbara, the court preceded over by Mr. Justice Carmel A. Aguis said: “Fl-isfond tal-kuncett tradizzjonali in materja ta’ tentattiv ta’ reat adottati mill-Qorti taghna u c-cirkostanza ta’ serq ta’ karozza (sebbene ghall-uzu biss), hu inkoncepibli li l-att fid-dahhil ta’ cavetta fis-serratura tal-bieba tista’ b’ xi mod tigi kkunsidrata bhal att ta’ preparazzjoni u mhux bhala att ta’ konsumazzjoni.” 9.4 Attempts in case of impossible crimes
The debatable point regarding this issue is whether there can be a punishable attempt when the act was done with intent to commit a crime is of such a nature that the completion is impossible. Obviously to complicate matters, there are various theories regarding this issue. 9.4.1Subjective element
• Every attempt is punishable even if the complicity of the crime by the means used was impossible; • It gives mush importance to criminal intent manifested by the agent; • This is the view taken by the English Common Law; • According to such theory a man who not only formed the intent but manifested such intent by external acts and has commenced the execution of the crime, by means which he thought efficient and sufficient for the purpose deserves to be punished even though without his knowing such means were in fact inefficient and insufficient. The agent did all necessary to accomplish the criminal act and the inefficiency of the means cannot diminish his degree of guilt 9.4.2Objective or physical element
• This theory considers the possibility of a successful issue as an indispensable ingredient. Acts which in nature cannot result in any harm are not mischievous either in their tendency or in their result and therefore are not crimes; • In case of attempt law does not punish intent but such action cannot be punished in so far as it has exposed rights of others to actual danger; • An impossible crime cannot expose the rights of the individual to actual danger; • However inefficiency of the means exclude any form of ‘pericolo percorribile’ and exclude criminal liability – absolute.
Carrara distinguishes between (i) absolute inefficiency and (ii) relative inefficiency. (i) When means used could in no circumstances injure the right of whoever or whichever the person or thing against whom or upon which they were directed. E.g. A intending to kill B by shooting thought he could do so by loading the
64 General Principles of Criminal Law firearm with blank cartridge – achievement of wrongful purpose is impossible; so thee is no criminal liability. (ii) When the means were not in themselves capable of completing the intended crime owing to particular conditions of the person or of the thing against whom or upon which criminal action was directed, but could complete that crime they were used against another person or upon another thing or accompanied by different circumstances. E.g. A firearm loaded with a bullet which at a shorter distance could have caused the death of B. here there will still be criminal liability and punishment for a criminal attempt.
9.4.2.1 Criticism of the Objective theory The objective theory, though quite accurate is somewhat defective. It may be right no to punish an act which could not issue any harm, but this is hardly a sufficient reason for not dealing with persons criminally inclined. In fact it may be said that everyone who attempts a crime is to some extent a social danger. Glanville Williams held that the objective theory could hold goal in so far as the law is considered as purely deterrent or retributive ______
10 Complicity – Parties to a Crime
There are certain offences which, by their very nature cannot be committed without the concurrence or participation of two or more persons e.g. conspiracy. The product of the joint activity or two or more person is known as Concursus delinquentium.
Our code recognises only two ways of taking part in an offence, that is, either as a principal or as an accomplice. The principal is the person who is the actual perpetrator of the act constituting the offence. Almost always he is the man by whom this act itself is committed. But there could be case were the principal used other innocent persons to act instead of him. The act may have been committed by hands of an innocent agent. He may instruct a child of six years to go in a shop and steal from it. In this case the principal is the sole offender.
There may, of course be more than one principal in an offence; thus, all the members of a gang of thieves may have fired simultaneously at the owner who has surprised them. They are co-principals since they have taken part in the killing which constitutes the crime of murder.
All others who, without taking part in the actual perpetration of the act which constitutes the offence but are nevertheless concerned in the commission of such offence, are known as accomplices.
10.1 General Rules applicable to all forms of Participation in an Offence
The subject of a criminal offence is the person who willed and committed the offence. Now the notion of participation in an offence implies that while one and the same is the offence committed the persons responsible thereof are several. The two or more persons concurring in the offence must be shown to have intended one and the same offence and to have done something towards committing it. When this is shown the punishment for the offence is not divided or apportioned among the several confederates; for although there is objectively only one offence, yet this is subjectively multiple. The punishment must, therefore, likewise reproduce itself in respect of each of them. But the degree of guilt of each of the parties may vary by reason of the circumstances of the offence and is to be determined independently of that of the others engaged in the same offence.
65 General Principles of Criminal Law
From this we may draw the two following principles which form the basis of the whole doctrine of Concursus delinquentium:
1. A man may be held responsible for an offence, even though he may not have done the act which constitutes that offence, if he had done some other act which constitutes that offence, or if he had done some other act which has helped towards the commission of the offence and had done the act in pursuance of a common design to commit that offence;
2. Each of the parties to an offence is liable to punishment in respect of that offence but only in proportion to his individual guilt.
The rule above laid down that a man can be said to have concurred in an offence only in so far as he willed and intended that offence and has done something towards its commission, leads to the following circumstances:
1. There cannot be a concursus delinquentium without a common design to commit a specific offence. No matter how effectively the act of one person may have helped another in the commission of the offence, the former is not responsible as a co- principal or an accomplice, unless it can be shown that he did the act with the purpose of assisting the perpetration of that offence;
2. The mere manifestation of a criminal intent without some active proceeding to cause it to be carried out, does not amount to a criminal participation. A defendant charged as an accomplice must be proved to have done something in furtherance of a common purpose, i.e. he must procure, incite or, in some other way specified in the law, encourage or assist in the act done by the principal. The man should have done some effort for the offence to be committed.
From this it follows that:
1. Negative participation is inconceivable. If a person knows of an unlawful act that is going to occur and does nothing to prevent it, the law cannot punish him for his inaction. It must however be noted that there are some cases in which ‘to do nothing’ to prevent the commission of an offence is in itself treated as an offence by the law. This notion of negative complicity must not be confused with that of complicity by negative acts of omission which create a state of things favouring or facilitating the commission of an offence;
2. Concurrence after the fact is impossible. Thus to conceal the dead body of a murdered person cannot in itself be considered as a participation in the respective crimes. Law, in fact, punishes all such actions, as offences sui generis, but it would be absurd to regard them as forms of accession to the crime. Nor can it be objected that such actions are very often but the carrying our of previous promise, it would be such promise mad before the event that would constitute complicity, and not its fulfilment after the fact;
3. Participation in an offence cannot be punished unless an offence has in fact been committed. It is necessary that the result of the common design and the joint effort should be in itself criminal and punishable at least as an attempt, in order that the several persons concerned may be held co-responsible.
66 General Principles of Criminal Law 10.2 Acts of Complicity
42. A person shall be deemed to be an accomplice in a crime if he – (a) commands another to commit the crime; or (b) instigates the commission of the crime by means of bribes, promises, threats, machinations, or culpable devices, or by abuse of authority or power, or gives instructions for the commission of the crime; or (c) procures the weapons, instruments or other means used in the commission of the crime, knowing that they are to be so used; or (d) not being one of the persons mentioned in paragraphs (a), (b) and (c), in any way whatsoever knowingly aids or abets the perpetrator or perpetrators of the crime in the acts by means of which the crime is prepared or completed; or (e) Incites or strengthens the determination of another to commit the crime, or promises to give assistance, aid or reward after the fact.
These provisions in Section 42, which specify the several modes in which a person may become an accomplice in an offence committed by another, cannot be widened by any extensive interpretation or by analogy, and therefore, any act which does not fall within the terms of those provisions cannot be considered a an act of complicity.
10.2.1 Complicity by Moral participation
These forms of complicity consist in words or acts which create or encourage another person’s intention and determination to commit an offence. They are referred to as moral or formal elements of crime.
The first and most direct mode of becoming an accomplice in this way is by giving orders for the commission of an offence (Sec 42 (a)). In continental legal doctrine, this form of complicity is termed as Mandate (mandatum). The three elements of Mandatum are: (i) the order, offer or proposal; (ii) the acceptance; (iii) the execution.
It is immaterial whether the mandate be gratuitous or a reward. What is essential is that there should be a compact or agreement between the mandate (the accomplice) and the agent (the principal) for the preparation of the offence. If the order or proposal is not accepted, no question of complicity can arise. So also if, after a refusal, the person to whom the order was given or proposal made, changes his mind and, without consulting the accomplice commits the offence, he is solely responsible, for no connection as of cause and effect would exist in such case between the would- be procurer and the offence and in the theory of complicity, such casual connection is essential to impose on the accomplice joint liability with the principal. There cannot be any question of complicity were no offence has been in fact committed or, at least attempted. The procurement in this form of complicity must e continuing: for if the procurer repents and actually countermands his order and the principal notwithstanding commits the offence, the original conniver will not be an accomplice. But this exception takes place on two conditions, namely:
(i) the reversal of the order must be brought to the notice of the principal; and (ii) notice of this revocation of the order must reach the principal in good time.
67 General Principles of Criminal Law The second form of complicity by moral participation consists, according to our law, in instigating the act of the principal by means of gifts, promises, threats, machinations or culpable devices or by abuse of authority or power (section 42 (b). Mere instigation, unaccompanied by any of these circumstances, as by evincing a liking, approbation or assent to another’s criminal design or committing an offence, is not sufficient to constitute this form of complicity. The bribes, promises, threats etc., must be efficient, that is to say, such as be in fact calculated to determine the principal to commit the offence.
The last form of complicity by moral participation is that found in section 42 (e). These are different from what is known as instigation to commit a crime. There is a substantial different between inducement to commit a crime and the incitement or the strengthening of the resolution of the offender. In the first case it is assumed that the idea to commit the crime is the effect of the inducement. In the second the incitement or the strengthening of the offender’s resolution it is assumed that the idea to commit the crime is already conceived in the offender’s min, but he lack courage to carry it into effect and somebody else strengthens his will.
It is to be noticed that in all the definitions of complicity so far considered, the law does not make use of any such words as ‘knowingly’, ‘maliciously’ etc., to denote that the order, the instigation, or the incitement to commit the offence or the promise to give help after the fact must proceed from a wrongful intent on the part of the accomplice. It is quite obvious since you cannot conceivably order or instigate or incite a man to commit an offence unless you have the intention that it shall be committed.
10.2.2 Complicity by Physical participation
These forms consist in the performance of physical acts which materially assist in, or facilitate, the perpetration or execution or completion of the offence and are referable to its physical or material element. The essential conditions common to those forms of complicity by physical participation are: (i) that the accomplice should be conscious of the offence contemplated by the principal and have the intention of assisting him in committing it; (ii) that the accomplice should have done some act in furtherance of the criminal design which he shares with the principal; (iii) that the act of the accomplice should have in fact helped in the commission of the offence.
Now according to our law, a person may become an accomplice in the following ways: (i) by procuring he weapons, instruments or other means of which use had been made in the commission of the offence, otherwise it cannot be said that they have in any way contributed to the violation of the law, knowing that they were to be so used; or (ii) by knowingly aiding or assisting in any manner the principal or co- principals in the acts of preparation or commission of the offence.
The elements mentioned in point (i) are quite obvious and the former is an application of the principle that there cannot be guilty participation in an offence without a common design. Guilty knowledge on the part of the person supplying weapons, instruments or other means must be clearly proved: but very often the nature itself of the means supplied (e.g. a dagger) will furnish a clear indication of such knowledge.
68 General Principles of Criminal Law It must however be noted, as Roberti points out that it is not absolutely essential that the means provided should have fully served the precise purpose for which they were supplied. If for example an accomplice provided the thief with a weapon to be used in case he found any resistance, yet he didn’t, the accomplice is nevertheless liable if the weapon has in any way whatever been of use, as by intimidating the victim or even only by giving confidence to the thief. Likewise, it is not essential that the thief have consummated the theft, it being sufficient that he should have attempted it.
As regards the second element there cannot be guilty participation without proof of a ‘common design’ between the parties for the consummation of the offence. The act of the accomplice must have only been done ‘knowingly’, but it must also have ‘in fact’ helped the principal in the preparation of the consummation of the offence. There cannot be complicity unless there has been at least an attempted offence. When we speak of aid given in the acts of consummation of the offence, we assume that the aider has not himself taken an active part in the very act that constitutes the offence: for in that case he would be a co-principal and not an accomplice. Mere presence may be sufficient to constitute this kind of complicity. 10.3 Involuntary offences
In view of the fundamental rule that there cannot be true participation in an offence unless the parties have acted in pursuance of a common design, in other words as specified above, so that the mind and the will of both of them were directed to the same offence, it is generally held that the notion of concorsus delinquentium is incompatible with the definition of involuntary offence. When an involuntary crime is the result of the concurrent negligence of two or more persons, each of them is accountable for his own act.
10.4 Crimes from Sudden Passion
Some writers hole that concursus is impossible in respect of offence which are unpremeditated and committed in the transport of a sudden passion. This argument is that the state of mind and the feelings of the person acting in such circumstance rules out the possibility by the existence of a common design between them. In respect of offences so committed by several people each one of them answers for his own act without reference to the acts of others.
The opinion however, prevails that – as regards to attempts – the question is not one of law but one of fact and evidence, and cannot be determined by a general and abstract rule. It is not impossible that two or more persons may have formed an instantaneous common intention to commit one and the same offence, although both agitated by sudden passion. What the law requires to impose joint responsibility is not necessarily a pre-concerted plan or calculated premeditation: a common purpose formed on the spur of the moment is sufficient. 10.5 Attempted Complicity
Complicity in an attempted punishment is obviously punishable and responsibility thereof is contracted by all those who concurred in it. The fortuitous event which prevents the consummation of the offence naturally avails the accomplice as it avails the principal, in he sense of reducing his liability but not in the sense of excluding it completely.
69 General Principles of Criminal Law The question is whether the voluntary desistance which so avails the principal offender, benefits also his associates. The answer would be in the affirmative if the there is no act liable to criminal responsibility. As to what happens when the principal offender repents and turns back but after he has already committed the act which objectively constitute an attempt, opinion amongst writers is divided.
Impallomeni thinks that in such case the desistance of the principal offender should avail not only himself but also his associates. Yet according to Carrara the principal who desists in time escapes punishment because of his voluntary desistance, yet for the accomplices this is just an accidental cause independent of their will. This appears to be more consistent to our law since section 41 when dealing with uncompleted crimes because of accident does not exclude any other act of preparation done by the principal of the accomplices 10.6 Punishment of Accomplices
Unless otherwise provided by law, an accomplice in a crime shall be liable to the punishment established for the principal.40
The trial and punishment of an accomplice is independent of that of the principal. Section 46 lays down that when the material existence of an offence is established, the accomplice shall be liable to be punished independently of the principal and notwithstanding that such principal shall die or escape or he pardoned or otherwise delivered before conviction, and this even in the case in which it is not known who in particular is the principal.
Our law has sanctioned by positive enactment the doctrine of ‘correlative complicity’. This means that when two or more person have determined to commit an offence in common and, in the act of carrying out the common design, only one of them actually perpetrates the act constituting the offence but it is not possible to ascertain who it is, they are all punished as accomplices. ______11 Conspiracy
Up till 2002 conspiracy was limited to special law like under chapter 101 section 22 1f.
• a plotting to commit an offence. • the coming together of two or more people with a common intention which is to do an unlawful act or to do a lawful act by unlawful means.
What’s the difference between conspiracy and attempt? In an attempt a commencement of execution is required whilst in conspiracy it is not.
It is difficult, however to distinguish in certain offences, whilst in others it is not. Eg: homicide but not in the importation of drugs.
Therefore, the mens rea is the underlying connector between act and conspiracy. Conspiracy came into being due to a coup d’etait. However some special laws also dealt with conspiracy such as Chapter 101 of the laws of Malta which refer to the Dangerous Drugs and Ordinance Act.
40 Article 43 of the Criminal Code of Malta
70 General Principles of Criminal Law The notion of Conspiracy came to us from U.K. law but their notion was very general. Especially with the introduction of organized crime, it is agreed that conspiracy is dangerous enough in itself and ought to be punished. However, many of these cases were acquitted due to lack of proof.
All the following sections mention conspiracy in a certain way:
Section 6 – Medical and kindred Ordinance Act Section 39 – Exchange Control Act Section 6 1(c) – Permanent Commission against Corruption Act. Section 32 – Drugs Ordinance Act Sections 57,58,67,74 and 338 paragraph d – Criminal code
Section 48 a of the criminal code which introduced for the first time. Later discussed.
General conspiracy – one can conspire to commit any offence (U.K. law) Malta also has a general form of conspiracy.
There is a dividing line between conspiring to commit an offence and performing the attempt to execute an offence. Conspiracy and attempt are different. A formal offence is the completion of an offence which does not require a final result.
The law does not define conspiracy. In Common law, conspiracy is defined as the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means.
Conspiracy gives rise to 4 essential elements which are: 1) the act of agreement 2) the persons agreeing 3) the purpose agreed upon 4) the formal element – mens rea
Why do we have conspiracy?
The law in this circumstance contemplates and punishes the indirect harm which may rise if the conspiracy where to be permitted to take it nature cause. Conspiracy is an indirect harm composed of doing something wrong and unlawful and also makes reference to the number of people involved.
The fact alone that the persons have agreed to do an unlawful act, if left unchecked is posing a threat and danger on society.
1.1 The act of agreement – conceptually there must be an act of agreement by which 2 or more persons agree on something. This is the external act of the offence – Actus Reus. This act of agreement is not merely the intention but the announcement and acceptance of that intention. The act can be any sign or bodily movement which is indispensable to effect this agreement. The bodily movement can be any but it must convey or accept. It is important to note that one can conspire with unknown people. Under English law, the fact that a person has announced the intention and the other has accepted it, shows that conspiracy is complete. We might agree to do a crime but not really have to intention to carry it out so under Maltese law that is not enough, there is the requirement also
71 General Principles of Criminal Law that the parties must also agree on the mode of action meaning that they must have the determination to carry it out. Section 48 (a) (2) – in Malta the mode of action is seen as conspiracy and not only the acceptance. There must be an agreement on the mode of operation. The distinction of Maltese law against the English law must be made.
U.K. R. vs Aspinell (1876)
“The crime of conspiracy is completely committed the moment 2 or more persons have agreed that they will do at once or at some stage future time certain things” – this confirms that an agreement to commit an offence completes the offence.
1.2 The persons agreeing – “ conspiracy is generally called a crime of combination and not a crime in combinations” - conspiracy cannot be committed by one person.
It is an essential that there is a plurality of people involved but it is not essential for co- conspirators to be tried together. It is possible to have conspiracy if co-conspirators are known or unknown. The agreement can be forwarded through a third person. This was agreed upon in the U.K.
R vs Griffits. (1965)
The court in this case implied that it is perfectly possible to have an original conspirator and other conspirators attached to the same conspirator. It is irrelevant whether plan is verbal or in writing.
1.3 Purpose agreed upon - Sec 48 (a) ~ to commit a crime punishable with imprisonment in Malta. The purpose must be to commit an offence punishable with imprisonment in Malta. The only exempted crimes are those under the Press Act which cannot be formed under offences of conspiracy.
1.4 Formal element – for the offence of conspiracy to be complete there must be an agreement to commit a crime. However, this alone is not enough. Apart from the proof of a mode of action, the intent to commit a crime and also the fact that the conspirators intended to commit the offence must be present. Therefore it is important to remember one fundamental point which is that in the U.K. an agreement to commit an offence is sufficient. In Malta, Sec 42(a) (2) states that it is not sufficient to have only an agreement as the conspirators must agree as to how to commit an offence. This notion must not be mixed up with preparatory acts.
What happens if two persons agree to commit an act and agree also on a particular mode of action? Eg.) simulate contracts to reduce estate to claim less tax (illegitimate action). Due to tax evasion one is arraigned in court but the defence says that he did know that act was wrong even though conspiracy occurred. Therefore, the fact of agreement is sufficient and ignorance of the law is no excuse. A+B intended and agreed to commit an act and such agreement is a violation of a particular law. This proposition is found in the U.K. courts and is stated in the case of:
72 General Principles of Criminal Law Churchill v. Walten (1966)
Under our law there is no exception in the case of ignorance of the law but it is taken for granted that it applies to it.
Sec 48(A) Sec 56 ~ conspiracy to take away the life of the President. This will also apply if one did not know the special status of the President.
Another form of conspiracy is drugs importation. eg) X was accused of importing drugs and conspiring to import drugs. Defence was that they did not know that the objects were drugs and that somebody substituted drugs from talcum powder. If it were true that somebody substituted drugs with talcum powder, prosecution must prove its case as there must always be a presumption of innocence. However, in fact there is a defence you want to raise, it is up to the defence to prove it.
In trial, if prosecution manages to prove the charge, it is up to the defence to prove the onus of proof which in criminal cases is beyond reasonable doubt. Ignorance of the law does not fully defend conspiracy but mistake of fact can reduce punishment drastically.
In conspiracy, one must also agree in the mode of action. The intent and mode of action must be proved. It is not necessary that there be a preparatory act.
Contrast Sec 57 (1) (2) – not only conspiracy but also preparatory acts. And Sec 48(A) – preparatory acts are not included.
Roberti writes that what the law requires is a mode of action definitely concluded between conspirators such that without need of any further deliberation they can proceed to action. VIP The mode of action must therefore be complete in the sense that the next step is the commencement of the substantive offence. VIP Agreement of a mode of action does not mean commencement of execution. Therefore if an A.G. mistakenly writes the charge of conspiracy of homicide, and a homicide occurred, then the charge of conspiracy will prevail.
Eg) one decides to commit a hold up. The intention and agreement on who would do what was written. The leaflet explaining all the event was left at the bar and found and later reported to the police. Every person present and written is guilty of conspiracy as there was an agreement.
The following statement demarcates completely the difference between conspiracy and attempts.
Repubblika vs. Stephen John Caddick ET. (6 th March 2003) Chief Justice De Gaetano Justice Filletti Justice Scicluna
“Under our law, the substantive crime of conspiracy to deal in a dangerous drug exists, and is completed “from the moment in which any mode of action whatsoever is planned or agreed upon between two or more persons’ (Dangerous Drugs Ordinance Section 22(1) (A) Ch 101). There the intention is not enough. It is necessary that the persons taking part in the conspiracy should have devised and agreed upon the means, whatever they are, for acting, and it is not
73 General Principles of Criminal Law required that they or any of them should have gone on to commit any further acts towards carrying out the common design.41 If instead of the mere agreement to deal and agreement as to the mode of action, there is a commencement of the execution of the crime intended or such crime has been accomplished, the person or persons concerned may be charged both with conspiracy and the attempted or consummated offence of dealing, with the conspiracy and the attempted or consummated offence of dealing, with the conspirators becoming (for the purpose of the attempted or consummated offence) accomplices. in an attempted or consummated offence, co-necessarily (also) going to show that there was (previously) a conspiracy, and this for a very simple reason, mainly that two or more persons may contemporaneously decide to deal in drugs without their being between them any previous agreement.” ______12 Punishment
12.1 Right of the state to inflict punishment
Apart from the historical justification of state’s right to inflict punishment there is a philosophical basis for this right. There are various schools of legal and philosophical thought that agree with this.
1. On doctrine lays down that the state exercises its punitive functions in virtue of a transfer or delegation originally made to it by the individual members. According to Blackstone, “It is clear that the right of punishing crimes against the law of nature, as murder, is in a state of mere nature vested in every individual. For it must be vested in somebody, otherwise the law of nature would be vain and fruitless, if non where empowered to put them in execution.” This right was transferred to an authority which prevented that everyone would be the judge in his own case
Now this power of execution is vested in magistrates and judges by the consent of the whole community. The lawfulness of punishment is founded upon this principle that the law by which they suffer was made by their consent: it is a pact of the original contract into which they entered when first they engaged into society. This doctrine is founded on the hypothesis of he “social contract” familiar to the philosophy of the 17th and 18th centuries.
However the right of the sate to inflict punishment for wrongdoing cannot have been transferred or delegated from each single member of society in the process of passing from the state of nature to the civil state, nor it is the same right as that of private retribution enforced by the individual in a primitive society although in the formation of the civil state it has supplemented the right. It is a right ‘sui generis’ inherent in every constituted society being essential to its very existence and to the discharge of its function as the guardian of law and order.
2. According to a second theory, the state possesses the right to punish offences against its own laws solely as a means of self-defence in the same manner as every individual has the right to react with violence against aggression. However, society, in inflicting punishment for a wrong already committed cannot be likened to a man causing an injury to another in the act of defending himself against the his aggressor.
41 Distinction between conspiracy and attempts. VIP to understand well . All quotes are the divide between conspiracy and substantive offence.
74 General Principles of Criminal Law 3. A third theory is that this right is necessitated by justice itself. Retributive justice it is said requires pain of some sort to be inflicted on a man who has committed a criminal wrong, even if no benefit results to the person injured or to the community. Punishment is the just reward of inequity and it is right and proper, without regard to ulterior consequences that, evil should be returned with evil.
In 1976, Kant strongly influenced an American committee where they stated that justice meant ‘just deserts’. In fact Kant’s theory of retributivism used to say that punishment must always be inflicted on the offender for the sole reason that he committed a crime.
Now it is scarcely needful to observe that such a conception of retributive punishment is inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. Even Locke pointed out, that even in a state of nature there would be a difference between revenging one’s self on a criminal and punishing him. Although European cultures approve o punitive motives, they disapprove of vengefulness, even though they are not always easy to distinguish.
Another form of the idea of purely retributive punishment is that of expiation. In this view crime is cancelled or expiated by the suffering f its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence
According to the exponents of this theory God required that sin shall be expiated by the chastisement of the sinner an it is therefore, right that the recognition by imposing a punishment which will cause the law-breaker to expiate his offence by suffering.
This theory is clearly based on a confusion between law and morality. The divergence of the criminal from the moral law is shown not only by the fact that there are many sins which are not legal offences but by the fact that there are many legal offences which are not sins.
4. The last theory combines elements of some of the theories already mentioned. It founds the right of punishment upon the natural function of the state as the guardian of law and order. Punishment must take the form of a psychological or mental coercion induced by means of the threat of an evil to be inflicted upon the wrong-doer himself from repeating he injury and deter all other from imitating him. People are deterred from actions when they refrain from them because they dislike what they believe to be possible consequences of those actions.
In this manner the right of punishment is made to repose on the three principals of utility, justice and the moral sense of the community. Utility because all laws is intender for the will-being of society; justice because this requires that suffering should be the reward of inequity; the moral sense, because the mental attitude which best becomes all men, when injustice is committed, should be of the righteous indignation which feels a legitimate satisfaction when fitting justice is dome upon the evil-doer. Justice should mark the limit within which it can rightly be exercised and the public conscience would decide the forms in which it can best be exercised within those limits. It proves that the state has the right to inflict criminal punishment in respect of these offences – being breeches of the law of nature or in other words eternal law – which constitute infractions of individual rights (murder, theft etc…).
75 General Principles of Criminal Law This theory offers no explanation of the undoubted right of the state to punish also those offences which constantly increase in number as civilisation progresses, and which no moral wrongfulness arises but are created for social convenience (i.e. contraventions
Modern Criminal doctrine re affirms the utilitarian view that the punitive agency of the sate in relation to every system of positive law, rest upon the principles of social utility and the protection of society ______13 Extradition
In extradition proceedings, there is no obligation for the requested state to surrender the offender being requested, apart from when so obliged by treaty. At international law, a state is free to choose whether to extradite or not. Malta is not free to extradite offenders to certain countries. A treaty is a written agreement by which 2 countries intend to create a relationship between them. This treaty may be a bi-lateral or multi-lateral treaty. Besides such treaties, a state also has domestic statute regulating extradition as an internal matter. S. 43(1) of the Constitution, in fact, stipulates that “extradition is only permitted in pursuance of arrangements made by treaty and under the authority of a law.” Today, in Malta, extradition proceedings are regulated by the Extradition Act (1978).42
The Extradition Act makes reference to designated foreign countries and to designated Commonwealth countries. It is the Minister of Justice who can so designate. Part II of the Act deals with Commonwealth countries, while Part III deals with foreign countries. Moreover, Part IV contains provisions applicable for the return of offenders to all countries, whilst part V contains provisions for the manner of treatment of offenders returned to Malta. The act also contains a very important schedule of extraditable offences in so far as designated Commonwealth countries are concerned. 13.1 Fundamental Rules of Extradition
(i) The Double Criminality Rule 43
For a person to be extradited, the act or omission with which he is charged, or for which he has been convicted, must be a criminal offence, not only in accordance with the law of the requesting country, but also in accordance with the law of the requested state.
In this, however, one must note that the offence may not necessarily be of the same name. 44 This is irrelevant, as long as the facts of the act concerned are an offence in both countries. There is an underlying legal reason for this. Under the law, the rule is the liberty of the subject. Any restriction of that liberty must emanate from the law. To justify the deprivation of this freedom, the act must also be a criminal offence in both countries. In this, one has to analyse the fact, which is punishable.45
42 Chapter 276, Revised Laws of Malta. 43 As laid down in S. 5(1b) of Extradition Act, stating that “for the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country is an extraditable offence in respect of that country if the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of Malta if it took place within Malta or, in the case of an extra-territorial offence, in corresponding circumstances outside Malta.” 44 For instance, in the UK, the taking of something from the possession of someone else may be termed as larceny, whilst in Malta it is theft. 45 For instance, in the extradition proceedings against Bernard Moore, who was accused of conspiracy to import drugs, form Australia to Malta which at the time was not punishable under Maltese law, since the law provided for complicity but not for conspiracy, the Court held that since conspiracy was unknown to our law, Moore could not be extradited for that offence. However, he still could be extradited for the actual importation of a dangerous drug even though importation of a dangerous drug was classified as infringing a customs law.
76 General Principles of Criminal Law
Under certain Common Law and other jurisdictions, there is the prima facie requirement46 of evidence.
(ii) The Rule of Speciality
The person returned can only be prosecuted in the requesting country for the offence for which extradition had been requested. A person who has been returned, upon extradition may not be tried by the requesting state for an act other than that for which that person has been extradited by the requesting state. The surrendered person shall neither be prosecuted, nor punished for any offence other than that proving the ground of the surrender.47
This is meant to ensure that the decisions taken in the requested state are not nullified but observed by the requesting state.
Under our law, the rule of speciality is safeguarded by S. 10(3) of the Extradition Act which provides that “a person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not…be dealt with in that country for or in respect of any offence committed before his return under this Act other than (a) the offence in respect of which his return under this Act is requested; (b) any lesser offence proved by the facts proved before the court of committal; or (c) any other offence being an extraditable offence in respect of which the Minister may consent to his being so dealt with.” This non-liability, however, extends only to those offences committed before his return.
The purpose of extradition is for the prosecution and punishment of the offender. Any person, whatever his nationality may be the subject of extradition proceedings. However, there are many countries which do not extradite their nationals, although in such cases, the requested state often respects the underlying purpose of extradition, in that all suspects should face justice, by choosing to prosecute them itself. This on the basis of the aut dedere aut judicare principle, where a state either surrenders the requested person, or judges him itself. This practice of not extraditing one’s own nationals is usually practiced by civil law countries, were extradition is usually defined as the surrender of aliens, thereby excluding one’s own nationals.
On the other hand, in Common law countries, it is held that it is essential that persons accused of a crime should be tried as close as possible to the place were the alleged offence has been committed. The reason being that the evidence will be in the places were the offence was committed. In practice, there is a discretion on the part of the Common law countries whether to extradite or not, but provided that there are the necessary safeguards, then they tend to extradite.
In Malta, S. 11(2) of the Extradition Act provides that “the Minister may refuse to make an order” of extradition “(a) where the request is for a person unlawfully at large after conviction and the punishment if less than four months imprisonment; (b) where according to the law of the requesting country the offence in respect of which the return is requested is subject to the death penalty and the requesting country has not given an assurance accepted
46 I.e., before the person sought can be extradited, the requesting country must show prima facie evidence that the person is truly liable to guilt of an offence 47 Vide case of Luigi Paduano (14 December 1973) who was requested for 2 offences but were only one offence resulted to be extraditable. On that, he was extradited. In this case, the rule of speciality was infringed, in that the requesting state sought to prosecute for the other offence, however, following opposition, the authorities surrendered.
77 General Principles of Criminal Law as sufficient by the Minister that the death penalty will not be awarded or will, if awarded, not be carried out; (c) where the request is for the return of a person convicted of an offence in his absence and the requesting country has not given an assurance accepted as sufficient by the Minister that such person will be granted a new trial if he so requests; (d) if prosecution for the offence in respect of which extradition is requested is barred by prescription either according to the law of Malta or according to the law of the requesting country; (e) where the request is for a person who is in Malta having been returned thereto… and the Government is under an obligation not to return such a person to another country; (f) if an amnesty has been granted in respect of the offence for which the return is requested and the courts of Malta had jurisdiction to try that offence; [and] (g) if the person whose extradition is requested is a citizen of Malta.”
Consequently, the extradition of Maltese citizens is possible but the Minister of Justice has a discretionary power whether to authorise such extradition or not. Very often, such discretion is governed by international treaties. There are 2 methods by which to determine the extraditability of a criminal offender, namely (i) the enumerative48 approach, and (ii) the eliminative49 approach.
In the list approach, which is the method used by Malta in respect if designated Commonwealth countries, there is a list of acts that are extraditable offences. On account of the differences between the legal systems, these offences must necessarily be phrased in generic terms. The principle thus, is to go by the nature of the fact and not by the name of the offence. This approach is used by Common law countries, however, today they are increasingly realizing of the advantages on the non-list approach.
It is argued that the eliminative OR NO LIST METHOD is gaining ground today approach, on the other hand, does away with the uncertainty and incompleteness of the list approach, thereby being superior. Here, extraditable offences are defined simply be referring to the punish ability of a particular offence laid down for the offence. Usually this minimum amount of punishment is 1 year imprisonment or a more severe punishment (if it satisfies the offence is therefore extraditable). But this minimum punishment must be in both countries, otherwise difficulties may arise.
There is a hint of the eliminative approach in S. 5(1a)50 of the Extradition Act in so far as designated Commonwealth countries, and S. 8(1a)51 in so far as designated foreign countries. 13.2 Political Offence Exception
It is a generally recognised principle that extradition is refused for political offences, or offences of a political character. This was not always so and there was a time when there was nothing preventing the extradition of political offenders. But with the advent of democracy and the recognition of the greater rights and freedoms of the citizens, the right to liberty and the recognition that sometimes the only way by which people could obtain a measure of freedom was through revolt. It eventually became acknowledged that no extradition could be sought for people who attempt to overturn a tyrant.
48 I.e, list. 49 I.e, non-list. 50 S. 5(1a) states that an extraditable offence is such if “it is an offence which, however, described on the law of that country, falls within any of the descriptions set out in the Schedule of this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;” 51 S. *(1a) states that an extraditable offence is such if “it is an offence in respect of which a fugitive criminal may be returned to that country in accordance with the arrangement and is punishable under that law with imprisonment for a term of twelve months or a greater punishment;”
78 General Principles of Criminal Law S. 10(1a) of the Extradition Act establishes the general restriction for the return of political offenders in stating that “a person shall not be returned…if it appears to the Minister or the court of committal, that the offence of which that person is accused or was convicted is an offence of a political character.” This provision is also enshrined in S. 43(2) of the constitution which established that “no person shall be extradited for an offence of a political character.” In this, it is to be noted that there is no comparable right under the terms of the European Convention on Human Rights, although this may be tackled indirectly under the provisions of other Articles.
S. 43(1) of the Constitution also provides that extradition can only be affected under “arrangements made by treaty and under the authority of a law.” Through S. 43(4), the Commonwealth scheme is elevated to the level of a treaty for the purposes of the Extradition Act.
There is, however, no definition of what a political offence is, neither in the Constitution, nor in the Extradition Act. Thus, it is up to the constitutional court to decide whether the offence for which a person is requested is of a political character or not. In practice, this lack of definition creates problems, were since we cannot bind the hands of the Constitutional Court in this respect, Malta needs to be very careful in the ratification of international treaties, which increasingly tend to lay down that certain offences are not of a political nature. 13.3 Political Offence Exception
Extradition is prohibited in case of political offences, both by the Constitution as well as under the terms of the Extradition Act, were S. 10(1a) of the Extradition Act establishes the general restriction for the return of political offenders in stating that “a person shall not be returned…if it appears to the Minister or the court of committal, that the offence of which that person is accused or was convicted is an offence of a political character.” This provision is also enshrined in S. 43(2) of the constitution, which established that “no person shall be extradited for an offence of a political character.” In such cases, this is also the rule generally followed in international law.
Neither the Constitution, nor the Extradition Act, however, provides a definition of what is understood by an offence of a political character. However, in this respect, certain criteria have been developed by foreign courts, which criteria are also used by our courts.
A very broad classification of political offences identifies between (a) purely political offences and (b) relative political offences.
Purely political offences are offences directed against the political organisation of the government of a state, which contain no element of common crime and are generally known as offences against the security of the state. Such offences tend to be directed against the Constitution or political sovereignty of the regime. In such cases, the agent is the instrument of a political party and bears no personal malice against the individual
Relatively political offences, on the other hand, are usually described as offences of common character, which, however assume a political character on account of their being closely connected with political acts or events. These offences cause greater problems in identifying, since they are offences, which are against the ordinary criminal law, but which, assume a political character because they are connected with political acts or events. For this reason, they are sometimes referred to as complex offences, were such offences have been said to
79 General Principles of Criminal Law assume a political character on account of the motive of the agent.52 It has been held by the British Courts that “crimes otherwise extraditable become political offences if they formed part of a political disturbance.” The problem, in such cases, is to determine the degree of proximity of a political act required to render an ordinary crime into a political offence. The British test is very liberal, were the courts argue that the facts must be considered according to the circumstances existing at the time of extradition. The Swiss courts, however, have developed a less liberal approach. They developed the following criteria to determine whether an offence is of a political nature, namely: (a) the offence must have been committed for the purpose of helping or ensuring the success of a purely political offence;53 (b) there must be a direct connection between the crime committed and the purpose pursued by a party to modify the political or social organisation of the State; and (c) the political element must predominate over the ordinary criminal element.
In the view of the British courts, however, for the offence to be of a political nature there must be some sort of dispute between the political parties contending for power within the state. 54 The mere fact that an offence is directed at the government or government property is not enough to make an offence one of a political character. Moreover, mere hate, or lack of faith is insufficient. For an offence to be of a political nature there must be 2 or more political parties in the state, each seeking to impose the government of its own choice on the other so that, if the offence is committed by one side or the other, in pursuance of this objective, it is of a political character. This position is criticised, however, in that in totalitarian states there is only one party. And the absence, within a state of political parties, does not by itself prevent an offence from being of a political character.55
Another criterion used by the British Courts is that the notion of a political offence necessarily applies to cases of opposition to the government so that cases of political significance or were the offence would not be committed except for a political purpose, they would be excluded.
It is generally though that in political offences, the person sought is at odds with the state on some issue connected with the political controls or the government of the country.56 13.4 Murder of Head of State
It is generally held that the murder of the Head of State of a foreign government, or even of a member of his family, is not a political offence, by international extradition practice.
S. 10(5) of the Extradition Act specifies that “an offence against the life or person of a head of state…shall not necessarily be deemed to be an offence of a political character.” Thus, Maltese law does not exclude that such offence is a political offence. A main reason for such wording is probably that since it is the role of the Constitutional Court to determine whether an offence is of a political nature or not, the law cannot exclude. Moreover, the law is conceding that it could, in appropriate circumstances be an offence of a political character.57
52 Such as for instance, theft committed for a political motive. 53 I.e., a criminal act, directed against the political or social organisation of the state. 54 Vide. Castioni Case and Meunier Case. 55 Vide. R. vs. Governor of Brickston Prison ex. Kolezynski. 56 Vide. Littlejohn Case (1975) In this case, the court held that although the Littlejohn’s robbed money from a bank, not for their own use but for the IRA, the political element was not more relevant than the common element of the crime and judged that this was, thus, not a political offence. 57 For instance, in the case of Caucescu in Romania in 1989.
80 General Principles of Criminal Law 13.5 Terrorist 58 Acts
As a rule, these are generally excluded from the category of political offences. In such cases, the accused is not identified with a party seeking to impose the government of its own choice on another, but rather with a party seeking to destroy all governments.
There is however, no exhaustive definition of what is an offence of a political nature. But, it would seem that such offences are such were there is opposition against the government of the requesting country, or the issue of the control of government and are aimed at the political organisation of the state. An ordinary crime, which affects the rights of individual citizens rather than the state, though it may be committed with a political motive, may still not be considered as a political offence. Acts, such as treason, are usually regarded as being of a political character, when murder, even if politically motivated, may not always be of a political character.
13.6 Religious or Racial Discrimination or the Suppression of Freedom of Expression
These can also give rise to objections to extradition. Indeed, S. 10(1c) of the Extradition Act states that ‘a person shall not be returned…if it appears to the Minister or to the court of committal that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, place of origin, nationality, political opinions, colour or creed.” Such grounds of refusal are commonly found in both multilateral and bilateral treaties of extradition.
British courts have held that for extradition to be refused on account that the accused might be persecuted on account of his opinion, there must be proof that the person in question had given expression to his opinions in the requesting country. On the question of prejudice, there needs to be substantial grounds for prejudice and not simply the possibility. 13.7 Death Penalty Exception
A requested state may make conditions upon the requesting state before it applies the request for extradition. The rule of speciality requiring that the requesting state does not prosecute the person for offences other than that for which extradition has been granted is one such condition.
The issue of the death penalty is another such condition, were states who no longer have the death penalty on their statute books and are requested to surrender a person to states which do, the requested country may refuse extradition. In such cases, however, if the requested country may in the future come to request itself the extradition of a person from that state having the death penalty, it would be likely to have its request turned down. Thus, a more likely approach would be for the requested country to request assurances from the requesting state that either the death penalty is not imposed, or that if imposed, it will not be carried through. Some states, however, object to such request on the basis that these requests would be interference on the judiciary. However, such arguments are countered by the fact that in most cases, it is the prosecution which had the discretion of requesting the penalty and thus, in such circumstances, the prosecution would be in a position of requesting the death penalty. Moreover, even in other systems, were the prosecution is not in a position to request the
58 Or anarchistic.
81 General Principles of Criminal Law penalty, if the penalty is given, through the prerogative of mercy, the death penalty may be stopped from being carried out.
In Malta, S. 11(b) of the Extradition Act allows the Minister of Justice the discretion to refuse to make an order for extradition “where according to the law of the requesting country the offence in respect of which the return is requested is subject to the death penalty and the requesting country has not given an assurance accepted as sufficient by the Minister that the death penalty will not be awarded or will, if awarded, not b e carried out.”
The death penalty is increasingly becoming to be considered as an inhuman and degrading punishment. In the USA, there have been movements to have certain forms of death penalty59 declared as inhuman and degrading treatment. The issue has also arisen in the European Court on Human Rights in the Soering case.60 7 July 1989. It has been traditionally considered that Art. 6 of the European Convention does not apply in extradition proceedings, on the basis that at the point of the extradition request, the person is not yet charged with a criminal offence, IN OTHER WORDS THE PERSON WOULD BE THEN CHARGED IN CRIMINAL PROCEEDINGS IN THE REQUESTING STATE. In this, however, it seems that Malta has become an exception, in that the Constitutional Court, in Police vs. Colin Trundel, held that Art. 6 applied also to extradition proceedings. 13.8 Ne Bis In Idem Rule
In many jurisdictions, it is considered as a general principle of criminal law that a person may not be subjected twice to criminal proceedings for the same offence. This is a corollary or as related to the double criminality rule, although not exactly the same. These may look the same but they are not.
Normally, this rule is applied with respect to prosecutions within the same jurisdiction. 61 However, it is further extended by some countries to apply to international law.
In Malta, it is to be noted that a second prosecution is prohibited not only for the same offence, but also for the same facts. The difference being that once the person is prosecuted, he cannot be prosecuted again for other facts within the same offence, not previously considered.62 If a person is prosecuted for a less serious offence, in Malta he cannot again be prosecuted for the more serious fact within the same offence. In other words, a person cannot be prosecuted for any offence for which he could have been prosecuted in the previous trail. In this respect, Malta has chosen not to extradite if it is shown that the person requested will be prosecuted in the other country in breach of the Ne Bis In Idem rule.
The Ne Bis In Idem rule does not apply in cases were convicted persons escape from serving sentence. In such cases, extradition would not be requested for prosecution but for the serving of the sentence.
59 Such as the gas chambers. 60 European Court, 7 July 1989. The European Court agreed that Art. 3 of the European Convention dealing with inhuman and degrading punishment was likely to be infringed, not because he would have been subject to the death penalty but due to the long and winding death row phenomenon in the USA. 61 I.e., if a person is prosecuted once in Malta, he cannot be prosecuted again for the same offence. 62 Vide. Rex. vs. Rosaria Portelli. For instance, in the USA O.J. Simpson was prosecuted for the wilful homicide of his wife, of which charge he was acquitted. Subsequently, the prosecution considered prosecuting him for breach of civil rights of the victim. They did not prosecute, but could so do. In Malta this would not be possible. Another example is that of Ali Rezaq, who had been prosecuted and found guilty in Malta for various crimes, but not for hijacking an aircraft since this was not considered to be an offence per se under Maltese law. Subsequent to his release, he was re-captured, and the USA prosecuted him for hijacking, since this was a different fact.
82 General Principles of Criminal Law 13.9 Prescription
Usually, if the criminal act has been barred by lapse of time, extradition will be precluded. The rational behind prescription is that the longer time passes, the less likely is it for the findings of reliable evidence.
In this, however, one must address the question as to which time limit is to be applied. Often, in this respect, it is argued that since the offence occurred in the requesting country, it is the prescription period of the requesting country which should be applicable. However, it is also argued that since double criminality is an important component, if the prosecution in the requested country has been time barred due to prescription, then the fact looses its criminal character and thus, the double criminality rule is no longer applicable. Moreover, since it is the court of the requested country, which has to judge on the matter and they are more likely to be aware of the law as applicable in their jurisdiction, then it should be the time limit laid down in the requested country that should be applied.
In practice, the rule is that if the time limit of any one country has lapsed, then extradition would be refused. In Malta this is laid down in S. 11(d) of the Extradition Act which stipulates that “if prosecution for the offence in respect if which extradition is requested is barred by prescription either according to the law of Malta or according to the law of the requesting country,” then the Minister of Justice may refuse to make the order for extradition.63 13.10 Amnesty 64
Amnesty is considered generally as a bar to extradition. Just as prescription in one country is considered as leading to a lack of double criminality, so too amnesty. A state can grant amnesty to persons accused, sentenced, or under investigation. It is often held that a state can only grant such amnesty over offences in which its courts have jurisdiction. However, in reality, it is generally held that there is no such limitation on the state, and indeed, if the national law so allows, it can even grant amnesty for offences in other countries. 13.11 Procedure
For extradition to be possible there needs to be a request on behalf of the government of a designated Commonwealth country, or a designated foreign country. The request must be for a person accused or convicted in the requesting state, and it must be in writing. Moreover, such request must be made by a Minister and must contain some basic information, 65 including:
The particulars of the person whose return is being requested, including information enabling the determination of nationality;
The particulars of the facts upon which the person is being accused or has been convicted;
The particulars of the law under which he is being accused or has been convicted;
63 It is however, to be noted that although the letter of the law makes reference only to the Minister, in the Satariano case, the Constitutional Court established that it had jurisdiction. 64 I.e., pardon. 65 As stipulated in S. 13 of the Extradition Act.
83 General Principles of Criminal Law
There must be the legal description of the offence;66
There must be a copy of the relevant enactments, or if this is not practical, a statement of the law;
There must be evidence sufficient to justify the issue of a warrant of arrest by a Magistrate of Judicial Police, under S. 14 of the Extradition Act.
Moreover, the requesting country must also provide some special requirements, namely: If the request is for the return of a person to face charges, then a warrant of arrest issued in the requesting country must be produced.
If the request is for the return unlawfully at large, then a statement of the sentence served, and a copy of the sentence must be produced.
After a request for extradition has been received, there is usually the authority to proceed, which is an order issued by the Minister of Justice at the commencement of the proceedings. The Minister is not obliged to issue such an order,67 but in certain circumstances, the law prohibits him from issuing it.68
If the minister issues an order to proceed, this is brought to the attention of a Magistrate who has to decide whether to issue a warrant of arrest for the person requested. This warrant of arrest for the person will be issued on the basis of a corresponding offence in Malta.
In certain urgent cases, the Magistrate may issue a provisional warrant of arrest, even before a formal request for extradition has been made.69 Following the issuing of the provisional arrest warrant, the Magistrate shall forthwith inform the Minister of Justice and transmit to him the information and evidence or copies thereof, on the basis of which, the provisional arrest warrant has been issued. The Minister, on his part, may, by order cancel the warrant and shall cancel the warrant if he decides that he will not issue an order to proceed. If the Minister cancels the warrant, and the person has already been arrested, then the Minister shall order his discharge.
After a person is arrested, committal proceedings commence, were the Court of Magistrates70 has to decide whether the person arrested has to stay in custody awaiting return. It has, thus, to ensure that there are no obstacles to extradition. A person accused has to be brought in front of the Court as soon as possible but not later than 48 hours following arrest. The Court has to decide on the question of bail.
If the person is arrested on the basis of a provisional warrant of arrest, and the Court fails to receive the necessary authority to proceed from the Minister, it may lay down a term within which the Minister will have to decide whether to issue such an order or not. If the Minister again fails to issue such an authority to proceed, then the Court would have to discharge the person from custody. If an authority to proceed has been issued, the Court will have to decide whether a person is to await return in custody. To do this, the Maltese Court needs to
66 I.e., the legal definition. 67 Indeed, a Minister may refuse to make an order to proceed if he is satisfied that an order to return would not in fact be made. (S.11 Extradition Act) 68 This is so, for instance, were it is clear that an order to return could, in the end, not be lawfully made. (s. 10 Extradition Act) 69 For instance, if it is known by the authorities of a requesting country that a person is travelling to Malta on his way to a 3rd country, especially if that 3rd country is one with which the requesting state does not have extradition arrangements, it may request for a provisional arrest warrant. The Magistrate must, however, receive information that the person is in Malta or is on his way to Malta. 70 Acting as a Court of Criminal Inquiry.
84 General Principles of Criminal Law examine whether there is sufficient prima facie evidence71 against the person,72 which evidence would have been sufficient for it to indict the person had he been charged for an offence in Malta.73
For the Court to order a person’s stay in custody awaiting return the offence must be an extraditable offence and there must be no restrictions to his return. 13.12 Procedure
The Court must be satisfied that the evidence tendered must be such as to show a prima facie case of guilt of the charge for which the person is being requested.74
In the case of a sentenced person, unlawfully at large, the Court must be satisfied that he had been sentenced and that he is unlawfully at large. If so satisfied, the person will await for his return in custody. Otherwise, the court will order his discharge. In this case, however, the Attorney General has a right of appeal and therefore, the Court shall transmit the records of the case to the Attorney General within 24 hours, together with its decision. The Attorney General has a right of appeal, which appeal is to be exercised within 3 working days from the day of the receipt of the record. The appeal is filed in the registry of the Court of Criminal Appeal. The Appeal is by application, which is served on the person claimed. The application must be accompanied by the record of the case and the Court’s decision.
Since there are 24 hours plus the 3 working days, the law provides75 that notwithstanding of any Court order for the discharge of any person, that person shall remain in custody until:
(a) the lapse of 3 working days of the Court order and if the appeal has been entered By the Attorney General until the case has finally been determined;76
(b) The Attorney General may order release of person if he decides not to appeal;
(c) The person sought may himself file an appeal.
Were the court finds no obstacles for the extradition, it must inform77 the person requested that he will not be returned until the lapse of 15 days from the order; that he may appeal to the Court of Criminal Appeal; and that he may apply for redress under S. 46 of the Constitution.78 It is generally established that the provisions of the European Convention on fair hearing79 do not apply in cases of extradition proceedings, on the basis of the fact that the person in question is not accused as such but rather a preliminary inquiry is being held by the Court in its investigative function. However, in Malta, the Constitutional Court has held that the provisions for fair hearing apply also to extradition proceedings.80
71 S. 15(3) of the Extradition Act. 72 This requirement if not universal. For instance, in France and Italy, the Courts leave the matter of sufficient evidence to the courts of the requesting country. They focus only on whether the offence is extraditable or not. 73 There is criticism to this requirement, in that it is rather cumbersome. However, Maltese experience has shown that this requirement has proved useful in dealing with states, whose political or legal systems are significantly different from ours. 74 In other words, such evidence needs to be sufficient to warrant trial for the offence. 75 S. 15(3) of the Extradition Act. 76 It is increasingly being recognised that after the Courts determination, if there is an appeal, the person may not be released on bail. 77 As stipulated in S. 16 of the Extradition Act. 78 Should he feel that he had been committed to custody if his return was prohibited under the Extradition Act or if he thinks that any of the provisions of the Constitution has been or is likely to be contravened in his respect. This requirement is not usual and is expressly laid down in the Extradition Act. 79 Art. 6 of the European Convention and S. 39*6) of the Constitution. 80 Vide. John Trundell vs. Minister of Foreign Affairs and Justice et., decided on 12 April 1991.
85 General Principles of Criminal Law In all cases of extradition, an appeal is filed by way of application. In the case of an appeal filed by the person requested this must be filed in the Registry of Court of Committal, as stipulated in S. 18(1) of the Extradition Act.81 If, however, such appeal is filed by the Attorney General, this is filed in the Registry of the Court of Criminal Appeal, as stipulated in S. 19(1) of the Extradition Act.
In the cases of appeals filed by the requested person, S. 18(1) of the Extradition Act stipulates that the application shall contain “a demand for the reversal of the Court’s order, and shall be filed in the registry of the court of committal not later than four working days from the date of the said order.” On the other hand, in the case of appeal lodged by the Attorney General, S.19(1) stipulates that “the court shall, within twenty-four hours, transmit to the Attorney General the records of the case together with a copy of its decision, and the Attorney General may, within three working days from the date of the receipt of such record, appeal to the Court of Criminal Appeal by an application, to be accompanied by the said record and by a copy of the decision of the court of committal, filed in the Registry of the Court of Criminal Appeal.”
In the case of appeals lodged by the requested person S. 18(2) stipulates that “the Registrar of the court of committal shall, not later than the first working day, transmit the application, together with the records of the case, to the Registrar of the Court of Criminal Appeal, who shall, without delay, forward a copy of the application to the Attorney General.” On the other hand, in cases of appeals lodged by the Attorney General, S. 19(1) stipulates that “a copy of the application shall be served on the person whose return is requested.”
In all cases, S. 18(3) stipulates that “notice of the day fixed for the hearing of the appeal shall be given by the Registrar of the Court of Criminal Appeal to the appellant and to the Attorney General.” However, it is further added that “except with the consent of both the appellant and the Attorney General, such hearing shall not take place before the lapse of two working days after the said notice has been given.”82
Should the Court of Criminal Appeal order the committal to custody of the person claimed, S. 19(2) provides that “such order shall be treated, for all purposes, other than an appeal there from, as an order committing such person to custody. “
On the expiration of 2 months from the first day on which the person claimed could have been returned, should he not by then have been returned, S. 24 provides that “he may apply to the Court of Criminal Appeal, sitting as a court of appeal from judgments of the Court of Judicial Police, for his discharge.” S. 24 also provides that he may do the same in case were a warrant for his return has been issued under the terms of S. 21, and a period of one month has lapsed. In both cases, the court is not bound to discharge him, and will give due weight to any sufficient cause for the delay. 13.13 The Powers of the Court of Criminal Appeal and the Constitutional Court
In the case of an appeal under the Extradition Act, whether to the Court of Criminal Appeal or should proceedings reach the Constitutional Court, S. 20 of the Extradition Act provides that “either of the said courts may, without prejudice to any other jurisdiction, order the person committed to be discharged from custody if it appears to such court that (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the
81 I.e., the Registry of the Court of Magistrates. This is very important since otherwise, the appeal would be null. 82 S.19(2) provides for the same provision.
86 General Principles of Criminal Law passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation the accusation against him is not made in good faith in the interest of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.”
Usually, at the appellate stage, the parties cannot produce additional evidence. However, S. 22(3) of the Extradition Act provides that “it shall be lawful for the Commissioner of Police or for the Attorney General as the case may be, as well as for the person the return of whom is requested, to produce evidence before the Court of Criminal Appeal even though such evidence shall not have been produced before the court of committal.” This is probably so, due to the fact that due to the urgency of proceedings in the first instance not enough time for the collection and preparation of evidence would have been available, and secondly, due to the potential difficulties in communication between the requesting and requested states. 13.14 Order for Return
It is only on the basis of an order for return made by the Minister of Justice that a person may be extradited. Thus, the Minister may by warrant, order that a person claimed be extradited to the requesting state. The Minister, however, may yet refuse to make an order for return, even though the Court may have found no obstacles to the extradition. Indeed, if the Minister is of the opinion that extradition is prohibited on account of S. 1083 or S. 1284 of the Extradition Act, he is bound to refuse to issue such an order. Moreover, S. 11(2) of the Extradition Act grants the Minister the faculty to refuse such an order in cases were the punishment awarded is less than 4 months imprisonment; the imposition of the death penalty is a possibility and the requesting country does not give assurances that it will not be imposed; the person has been convicted in his absence and the requesting country does not give assurances that a new trial will be held; if the prosecution is barred by prescription; if amnesty has been granted in respect of an offence for which the courts of Malta had jurisdiction; if the person is in Malta having been returned to Malta on a request of extradition and the Government is under an obligation not to return such a person to another country; and if the person is a citizen of Malta.
In any case, moreover, the Extradition Act provides that a person shall not be returned prior to the lapse of 15 days from the date of the order; pending the lapse of any time limit for appeal or other proceedings competent to any person claimed, and until the conclusion of any proceedings instituted.85 Moreover, S. 21 (3) stipulates that the Minister shall not make an order for return if it appears to him that “it would be unjust or oppressive to return that person,” and this on the basis of the grounds stipulated in S. 2086 or S. 10(1).87
83 S. 10 provides that the Minister is prohibited from issuing an order for return if it appear that the offence in question was of a political character; that the request is being made for the purpose of prosecuting or punishing the person requested on account of his race, place of origin, nationality, political opinion, colour or creed; if should the person be returned he would be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, place of origin, nationality, political opinions, colour or creed; if charged with an offence which it would appear that were he to be charged in Malta he would be entitled to be acquitted under any of the rule of law relating to previous acquittal or conviction; unless sufficient guarantees have been made by the requesting country that the person requested will not be dealt with in that country for or in respect of any offence committed before his return under this Act other than the offence in respect of which he is returned, any lesser offence proved by the facts proved before the Court of Committal, and any other offence being an extraditable offence in respect of which the Minister may consent to. 84 S. 12 provides that “a person who has been accused of some offence within Maltese jurisdiction, not being the offence for which his return is asked, or is undergoing sentence under any conviction in Malta, shall net be returned under this Act to any country, or committed to or kept in custody for the purpose of such return, until after he has been discharged whether by acquittal or on the expiration of his sentence or otherwise.” 85 S. 21(2) of the Extradition Act. 86 I.e., by reason of the trivial nature of the offence; by reason of the passage of time; and because the accusation made is not made in good faith in the interest of justice. 87 I.e., if the offence is deemed to be a political offence; if it is made for purpose of prosecuting or punishing him on account of his race, place of origin, nationality, political opinions, colour or creed; or if he might be prejudiced at his trial, or punished, detained or restricted in his personal liberty by reason of his race, place of origin, nationality, political opinions, colour or creed.
87 General Principles of Criminal Law 13.15 Concurrent Requests
In cases of concurrent requests, S. 21(4) provides that “the Minister may decide to make no order for the time being under this section for the return of a person committed by the court in consequence of a request made by any country if another request for his return under this Act has been made by another country and it appears to the Minister, having regard to all the circumstances of the case and in particular (a) the relative seriousness of the offence in question; (b) the date on which each such request was made; and (c) the nationality or citizenship of the person concerned and his ordinary residence, that preference should be given to the other request.”88 13.16 Military Offences
Military offences are non-extraditable offences. Indeed, S. 2(b) stipulates that “an act or omission which constitutes an offence only against military law but not against the ordinary law of the land shall not be treated as an offence” for the purpose of the Extradition Act. 13.17 Fiscal Offences
Fiscal offences are usually excluded from extradition arrangements. Even though, there is an increasing pressure for such offences as tax evasion to be included. Today these are included in the list of extradition offences always subject to the double criminality rule and such polices. 13.18 The Subject of a Criminal Offence
Who can be the subject of a criminal offence? According to Carrara, only man can be the subject of a criminal offence, in that for the commission/omission of a criminal offence there must, per force the capacity to will and understand, faculties, which are only possessed by man.
In inquisitorial systems of procedure, the point of departure is the investigation of the criminal offence and the author of the offence is considered as the object of the investigation and not the subject.
According to Carrara, there must be a person who must have the capacity of will and understanding. However, not every person capable of will and understanding is criminally liable. A person endowed with the capacity of will and understanding becomes criminally liable when that capacity is expressed by an act or omission contrary to the criminal law, which act or omission is done freely and consciously. Thus, a person capable of will and understanding may be criminally liable, however, a person to be criminally liable, that person must be capable of will and understanding.
It is known that personality may be physical89 or moral.90 The question, which arises, is thus, whether a juridical person can be the subject of a criminal offence?
88 In other words, in cases were two or more requests for return of the same person by two or more countries are received, the Minister may delay making an order for return if he thinks that the 2nd request is worth considering. 89 Natural, i.e., human beings. 90 The legal/juridical person being a body of persons and things, which collectively is endowed with legal personality distinct from the personality of the physical persons who compose it..
88 General Principles of Criminal Law The traditional view in this respect was that a legal person could not be held criminally liable since such a person did not have the capacity of will and understanding distinct from the physical persons who compose it. However, it was also argued that the law, by a legal fiction could attribute the capacity of will and understanding to a legal person. To this, however, there was the objection that even if one were to concede that by a legal fiction the law may attribute to a legal person the capacity of will and understanding, it is impossible for the law to attribute to a legal person the capacity to do something illegal. Thus, it would be impossible for a legal person to commit an illegal act since it would still lack the capacity to will and understand something unlawful. Thus, it is argued that anything illegal, which is done by a legal person, would be ultravires.91 Moreover, it is suggested that a legal person can never be the subject of certain punishments,92 and that in practice; only pecuniary penalties can be imposed.
However, with the proliferation of such legal persons, pressure is increasingly being exerted to review this position and policy wise at least, Common Law countries have decided to do away with such problems of legal philosophy in deciding that even legal persons can be held criminally liable and prosecuted for certain offences. However, even if it is conceded that legal persons can be held criminally responsible, there are certain offences, which are inconceivable to be committed by legal persons.93
The legal basis which is usually argued in favour of holding a person legally responsible might take the form of:
(i) Vicarious Liability , were the juridical person is held criminally responsible for the acts of another person;
(ii) Criminally responsible in its own right on the basis of the fact that certain officers of the juridical person will be deemed to be in control, in such a way that their conduct and state of mind are in reality the legal person’s conduct and state of mind.
Continental text-writers argue that legal persons can have no will of their own independent of the physical persons composing them. In this, practical problems of identifying who is to be criminally liable arise. It is argued that were all the members forming the legal person acted in concert, all of them would be criminally liable and would be liable for punishment. On the other hand, if not all of them had the required criminal intent, the punishment of the legal person would, in effect, give rise to the punishment of innocent persons.
To date, Malta follows the continental doctrine. However, there is increasing pressure to change this and indeed, certain provisions in particular statutes have started to be gradually introduced reflecting such a shift of opinion. The definition of a person in individual separate statutes, for instance, is increasingly including legal persons. Similarly, whenever a legal person infringes a penal law, it is provided that the director or other principal officer of the juridical person would be held criminally liable.94
In Malta, we have also introduced a general provision in the Interpretation Act (1975) I think article 13 ,that the word person includes a body of persons, whether incorporate or
91 I.e., beyond its powers. 92 Such as imprisonment. 93 Such as rape, bigamy etc. 94 In this, we have turned round the doctrine of vicarious liability as practiced in the UK, were in Malta the natural persons are held criminally liable for the act or omission of the juridical person.
89 General Principles of Criminal Law unincorporate.95 The same act also provides that the director, manager, secretary or other principal officer of the company shall be guilty of any offence committed by the company unless he shows A that the offence was committed without his knowledge and B that he did everything necessary to prevent the commission of the offence.96 Both of these conditions must exist together. Article 4 paragraph d in the interpretation act of 1975.
In this, however, the question as to how can one show that he did not know of the offence and at the same time prove that he did everything possible to prevent it is bound to rise. In this respect, in Police vs. Frances Formosa (3/10/85), the Court of Criminal Appeal accepted the interpretation of S. 13 of the Interpretation Act, where the accused need not only show that he did not know of the offence but also that, in the exercise of his duties, he did everything possible to prevent the offence by being on the look out for such offences. The Court also added that “it was its firm conviction that there could be circumstances in which, although the director might be aware of the offence, he would not be held liable for the offence”, however the Court stopped short of elaborating on this point.
In Police vs. Anthony Grech Sant, the Constitutional Court referred to the Salabiaku case97 where it was held that Article 6(1)98 did not, in principle, prohibit presumptions of fact or of law which operate in every legal system. It also added that the European Convention did require contracting states to remain within certain reasonable limits in criminal matters.99 In the Anthony Grech Sant case, the Constitutional Court found that these reasonable limits had not been exceeded.
S. 13 of the Interpretation Act can be seen to be a mix between the concept of vicarious liability and justifying elements were the director is allowed the means to exempt himself from criminal responsibility. Today we have introduced real direct corporate liability. We do not yet have corporate liability in the criminal code as such. So its still does not apply under our law. Article 121 d. it says were the secretary.
SUSPENDED SENTENCE AND PROBATION ORDERS
Under section 28 a. when a suspension can be given. You are suspending the execution of a sentence of imprisonment. The court must then find the guilt on the accused. A suspended sentence can only be given when the court awards the punishment but it being less then two years imprisonment not more. A fine whether it being a multa or ammenda cannot be suspended. The court when suspending a sentence can suspend the sentence for a period of one to four years. It is called the operational period.
Section 28 (2) deals with how to suspend a sentence (punishment) meaning that it first trails and convicts the case then it gives the sentence then and only then can the court if it wishes suspend that sentence.
Instances were a suspended sentence cannot be given: If a person is already serving a sentence in prison
The idea of the suspended sentence is to give the offender a second chance but the offender knows that during his operation period if he commits another crime he is then liable for the two offences but there are exceptions section 28 (b)
95 S. 4(d) Interpretation Act. 96 S. 13 Interpretation Act. 97 European Court of Human Rights (7/10/88) 98 Corresponding to S. 39(5) of the Constitution of Malta. 99 It however established that the Salabiaku case did not exceed such limits.
90 General Principles of Criminal Law
If the second offence is of an involuntary offence or any other offence, being of the opinion of the court that is not just to bring the punishment of the first into action. The court may in this case
1 abstain from giving the second punishment or 2 start another operational period of four yours from that date.
If the court decides to impose the two punishments the court under sec 17 b calculate the punishment. If the person commits a second offence in his operational period he is also to be dealt with by law as a recidivist sec 50. In the case of a suspended sentence sec 49 will always apply. But section 50 comes into play if the punishment has taken effect and the offender has served his entire sentence. The court may also appoint a supervising officer and this is done very frequently in the cases of drugs abuse. Apart from supervision orders the court under sec 28 (a) can order the offender to pay the injured party compensation. The court can also institute a time limit for the compensation to be made. This time period cannot exceed six months. If he does not pay the court can summon him and extend that period for a further month and if he still he does not pay the court can send the offender to prison.
Every person who is a recidivist can have an aggravation in his punishment from sec 49 but from section 50 it comes out. Sec 50 in the case of a crime first you have to look at the punishment awarded for that crime in the case of a crime where a punishment is less then five years the period in which you will aggravate the second punishment is also of five years. If the punishment is more then five years the period is ten years. This period commences from the following day after you have completed your punishment. Sec 52 says what happens when you are found guilty of a voluntary crime and then during the five or ten year period you are found guilty of an involuntary crime or vice versa. It is said that the two must be of the same level either two voluntary or the two involuntary. Even with crimes and contraventions.
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