Two appeal judgments dealing with the applicability of plea bargaining in the Magistrates' Court, as a court of criminal judicature, have highlighted a lacuna in the law and may have tremendous consequences, Labour MP José Herrera said.
In the coming days, Dr Herrera said he will table a private member's Bill in Parliament moving amendments to the law that include the institutionalisation and regulation of plea bargaining in the Magistrates' Court as a court of criminal judicature where the great majority of criminal cases are heard.
"I feel there is an anomaly in the law which is of prejudice to the defence because plea bargaining is not institutionalised before the Magistrates' Court. This is the biggest anomaly and injustice that exists in the penal system," he said.
Dr Herrera explained that in the two appeal judgements in question - The Police versus Mario Spagnol and The Police versus Jason Spagnol - Mr Justice Joseph Galea Debono had highlighted a lacuna in the law that shook the way plea bargaining was carried out in the Magistrates' Court regularly.
In his ruling, which Dr Herrera defined as having "tremendous consequence", Mr Justice Galea Debono ruled that since plea bargaining in the Magistrates' Court, as a court of criminal judicature, was not regulated by law, any informal plea bargaining before such court had to be made in open court or recorded in the court documents.
In this case, Mario and Jason Spagnol appealed their jail term claiming that the parties and the magistrate had agreed to a fine during plea bargaining. But the judge noted that the plea bargaining had taken place in the magistrate's chambers and on the magistrate's request and there were no records of the bargaining. For this reason the judge could not take cognizance of this ground for appeal.
Mario Spagnol, 42, and his cousin Jason, 25, had been jailed after they admitted, in the Magistrates' Court (as a court of criminal judicature), to shooting and killing three swans in St Thomas Bay, Marsascala.
Magistrate Tonio Micallef Trigona had jailed them for six months and three months respectively and ordered that an 18-month suspended jail term that had been handed down to Jason Spagnol be put into effect bringing his jail term to a total of 21 months.
The two men filed an appeal claiming, among other things, that their guilty plea had been brought about by a misunderstanding during plea bargaining.
Mr Justice Galea Debono heard Police Inspector Alex Miruzzi, prosecuting, explain that he and defence lawyers, Dr Herrera and Dr Ian Farrugia, had met Magistrate Micallef Trigona in his chambers where they discussed the possibility of an admission and punishment.
The magistrate had suggested that in the case of Mario Spagnol the punishment should be a fine. In the case of Jason Spagnol the magistrate had noted that his case was different because he was a relapser.
The judge noted that in Jason Spagnol's case it did not result that an agreement had ever been reached during plea bargaining and therefore this ground for the appeal did not hold. The judge however upheld his appeal on another ground and condensed the three-month jail term and the 18-month jail term into one jail term according to law and reduced the term from 21 months to 19 months and 15 days.
In the case of Mario Spagnol he could not take cognizance of the appeal since the bargaining had been in chambers and no records existed.
In a analysis of the applicability of plea bargaining, the judge quoted articles 453A and 392A of the Criminal Code which spoke about plea bargaining in the Criminal Court and the Magistrates' Court as a court of criminal inquiry.
The judge noted that in the absence of further dispositions in the law it did not seem that plea bargaining could be practised in any court other than the two mentioned in the law.
Although this did not exclude the possibility that the defence and the prosecution could agree on a punishment and present it to the magistrate, this had to be done either in writing or in open court to ensure it would be documented.
Mr Justice Galea Debono added that the magistrate should never indicate the punishment he had in mind in case of an admission unless to say that, whether the accused pleads guilty or not, the sentence will or will not take a particular form such as a fine or a jail term.
Any divergnavce from such guidelines may lead to complications in the administration of justice and risked generating doubts and suspicion of abuse of the administration of justice.