Bill draws strong sweet and sour reactions

A Bill to amend the Criminal Code continued to be generally welcomed in Parliament yesterday but there were strong reactions from both sides of the House over the removal of the mandatory requirement of corroboration of the evidence of an accomplice and restrictions to the immediate granting of bail to repeat offenders.

Nationalist MP Jason Azzopardi said the removal of the need for corroboration of evidence by an accomplice needed to be accompanied by the safeguards found in other countries. He also cautioned that provisions restricting the possibility of immediate granting of bail could be going against decisions by the Constitutional Court and the European Court of Justice.

Labour MP Jose Herrera in a strongly worded speech said these provisions smacked of fascism. They, and another provision requiring magistrates to seek authorisation from the Chief Justice before conducting certain inquiries, would undermine fairness in the administration of justice and they also reflected lack of confidence in magistrates.

Dr Azzopardi, who spoke first, said this Bill was like an "unpolished diamond". One could not but welcome its provisions in favour of the rights of the victims of crime and the way penalties in cases of crime inspired by racism were being substantially raised.

Also welcome was the removal of mandatory imprisonment for persons found guilty of sharing a small amount of drugs. Far too many young people without previous convictions were being sent to jail for sharing one joint. This courageous amendment was ensuring that the law would now be fairer. This, clearly did not mean any thaw in the fight against drug trafficking.

Dr Azzopardi said he was concerned, however, about the removal of the mandatory requirement of corroboration of the evidence of an accomplice.

It was true that this mandatory requirement had been removed in other countries, but the lifting of that requirement was accompanied by new safeguards which were not being introduced in Maltese law.

In Britain, a country whose legislation was mentioned by the Justice Minister at the opening of the debate, it was no longer essential for evidence by accomplices to be corroborated. But the courts, in terms of the Police and Criminal Evidence Act, also had the authority to refuse such evidence, even at the pre-trial stage, if that evidence was seen to be unfair on the defence and prejudicial to the interests of justice.

His suggestion, Dr Azzopardi said, was that if this new provision was to stand, then it should also be accompanied by proper safeguards.

And in the same way as the minister had quoted British legislation on the corroboration of evidence, he should also consider adopting, from UK legislation, the disclosure principle where the prosecution was required to disclose evidence to the defence even when such evidence might undermine the case for the prosecution. Such an obligation, to a lesser degree, also applied for the defence.

Dr Azzopardi said he was perplexed by the amendment providing that in the case of repeat offenders, one could not apply for bail for a period of three months. Such an application may only be made before a judge and could be granted only in exceptional circumstances.

The Nationalist MP said he feared that this provision went against decisions by the Constitutional Court and the European Court in Strasbourg on immediate access to bail, such as the case Aquilina vs Malta decided by the European Court in 1999.

Interjecting, Justice Minister Tonio Borg said the criminal court would be given the authority to hear such bail applications immediately.

Dr Azzopardi said such applications would have to be heard and decided with a month.

Continuing, he said it was good that the minister would be proposing amendments to the Bill on the suspension of a sentence. There had been various cases where judges decided that when a convicted person did not immediately request a suspension of the execution of a sentence pending appeal, the subsequent application for appeal was thrown out.

This, Dr Azzopardi said, was an injustice. In 2003, the Chief Justice rightly held that this was wrong. Now it would be laid down that once a request for the suspension of a sentence was made in the eight days within which an appeal could be filed, the application for appeal would not be thrown out.

Dr Azzopardi said he had a number of other suggestions which the government should consider.

For example, the government should consider adopting the practice in Italy where the period spent under house arrest would be deducted from a prison term.

In cases of involuntary homicide, he felt that the penalty should be raised according to the seriousness of the case.

It was currently manifestly unfair that a person found guilty of involuntary homicide was currently liable for a maximum prison term of five years, independently of whether he caused the accidental death of one, five or 10 persons.

He also felt that the defence should be allowed more time to file notes of exception when a bill of indictment was presented.

Dr Herrera said he was amazed how certain amendments were being moved by Dr Borg because they were in stark contrast to what the PN used to say before about fair and independent administration of justice.

On the other hand, some of the measures being proposed in the Bill were very positive. It was because of those provisions that he would not vote against the Bill on second reading.

He, however, fully backed the opposition's commitment to repeal, within six months of taking office, the provisions that removed the need for corroboration of evidence, the restrictions on bail and the limitations being imposed on magistrates.

Those provisions, he said, were shameful and dangerous and went against the spirit of the Constitution and the European Convention of Human Rights.

In the 1980s the PN used to say a lot about the independence of the judiciary, yet the Bill now laid down that a magistrate needed the authorisation of the Chief Justice to launch an inquiry on the basis of a complaint made by any person except when that complaint was made by the Attorney General or the Police. This provision undermined the competence and independence of magistrates. Indeed, it humiliated them, turning them into poodles dependant on the Chief Justice.

Clearly, therefore, this provision went against the independence of the judiciary. Because a democracy needed a strong judiciary, this provision was undemocratic and a step towards a police state.

With Malta not having a Judicial Committee of the House the only power to investigate the action of the government lay in a strong, independent judiciary. The government, however, wanted to turn the magistrates into puppets in the hands of the Chief Justice. This smacked of arrogance. A magistrate would need the government's permission to initiate an inquiry.

Dr Borg said it was not true that the government's permission was required.

Dr Herrera said the Chief Justice could be anyone the government nominated. This provision, therefore, was fascist because fascism meant that the executive controlled everything.

Continuing, Dr Herrera said the fact that magistrates could not consider requests for bail from repeat offenders was another attack on the magistrates because, in terms of this Bill, such applications for bail could only be made before judges. Why was the government proposing to raise the retirement age of magistrates when it had no confidence in them?

It made no sense, and it was stupid that repeat offenders could not request bail. Sending everyone straight to prison, without considering the circumstances of the request, was a further step towards a police state.

As soon as this provision became law, he had no doubt that it would be struck down by the Constitutional Court.

If necessary, the law should be amended to serve as a stronger deterrent, but justice should not be weakened. It would be fascist to deny the right to request bail out of hand.

Dr Herrera queried whether these amendments were motivated by high profile cases which the government had lost.

He insisted that accepting uncorroborated evidence by an accomplice to a crime was unsafe and very dangerous. It was better to acquit 10 guilty persons than to convict one innocent person.