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MP suggests changes to controversial clauses

Nationalist MP Mario de Marco yesterday suggested alternatives to three clauses of the Criminal Code (amendment) Bill that have drawn objections from both sides of the House.

He told Parliament that one of the most interesting, but debatable, clauses of the Bill provided that a magistrate needed the authorisation of the Chief Justice in order to hold an inquiry unless such an inquiry was necessary on the basis of a report or complaint made by the Attorney General or the Police.

Dr de Marco asked what would happen when the Chief Justice refused to grant such authorisation. Would there be some form of appeal?

This clause, he said, could be complicating life unnecessarily. He felt that when a report or complaint was not filed by the Attorney General or the police the inquiry could be assigned to a magistrate, who was not necessarily the duty magistrate, through a ballot or some other system as happened in the case of arraignments. The Chief Justice may also allocate the inquiry to a magistrate, without, however, having to establish the pre-requisites of the case.

Dr de Marco said that also somewhat controversial was the clause providing that a person convicted of a serious crime in the previous 10 years lost his automatic right for bail in the first three months after being again accused of a serious crime. In such cases bail may only be granted by the Criminal Court in grave and exceptional circumstances.

The Nationalist MP said he could understand the concerns of the legislator as well as people who were sometimes concerned that bail was apparently being granted too easily. But one could not forget cardinal principles of law, such as the presumption of innocence of the accused.

The problem of this clause was that it was making bail an exception rather than a right for some people.

But what was especially worrying was that it would not be the magistrate before whom a person was arraigned who would consider bail, but the Criminal Court.

The Magistrates' Court had wide discretion on whether and how to grant bail and repeat offenders were often denied bail especially when sensitive evidence had to be heard.

He feared that removing this discretion from magistrates would go against decisions of the European Court of Human Rights, such as the case Ben Ali vs Malta decided in June 2000 where the court ruled that the accused should have an automatic right for the court before which he was arraigned to review the legality of his arrest.

He was sure, Dr de Marco said, that the only intention of the legislator was for repeat offenders not to be granted bail easily.

That purpose, however, could also be achieved by having policy guidelines drawn up by the magistrates themselves, as was the case in England, to which magistrates could refer when they considered bail applications. One of magistrates' considerations would then be whether the accused had previously been accused of similar crimes.

Turning to the removal of the need for corroboration of evidence by an accomplice, Dr de Marco noted that in terms of the Bill the need for corroboration was being removed and it was at the discretion of a judge to warn jurors to treat the evidence with caution "after taking into account the character and demeanour of the witness, the nature of the offence and its circumstances and any improper motive which the witness might have not to tell the truth."

In England, where the need for corroboration of evidence by an accomplice had also been removed, it was mandatory, not discretionary, on a judge to warn the jurors that it was dangerous to convict a person on the basis of uncorroborated evidence by an accomplice.

The fear lay in the fact that such evidence remained suspect because of the tainted source from which it came, since an accomplice may try to shed his responsibility or shift it to somebody else.

Dr de Marco said one should not see extracts of legislation in other countries in a vacuum . Although the UK had removed the need for corroboration, it was not only obligatory on a judge to seriously warn the jurors about the dangers of accepting such evidence, but there were other checks and balances, such as a lawyer's right to be present at the interrogation of his client and the disclosure of evidence collected during investigations. Therefore, one should either emulate everything, or nothing.

Indeed, he would have welcomed a better explanation as to why this clause was being introduced and why one was removing a provision that had withstood the test of time and served Maltese justice well.

If change was necessary, then it should not go from one extreme to the other. It should be mandatory, not discretionary, for the presiding judge to warn jurors of the dangers of accepting evidence by an accomplice. Making such a requirement mandatory would also remove from the judge the need to make an appreciation of the witness, something which was the remit of the jurors. This provision needed to be radically changed and the judge's warning should be more forceful.

Earlier in his speech Dr De Marco said one of the most interesting clauses of the Bill raised the punishments which may be imposed when offences were motivated by reasons of race or religion.

A problem he saw, however, was in the interpretation of the clause that said that an offence was aggravated by race or religion if "at the time of committing the offence, or immediately before or after the commission of the offence, the offender demonstrates towards the victim of the offence, hostility based on the victim's membership, or presumed membership of a racial or religious group."

There was no doubt that this provision was needed but a distinction should be made between the actual offence and the demonstration of hostility before or after the actual offence. That should be viewed as a separate crime independently of the actual attack.

Dr de Marco said he welcomed the clause providing that minors would only be required to give evidence and be cross-examined once during criminal proceedings, with such evidence being recorded by audio-visual means.

However the Bill should not be too categoric in laying down that a child had to be examined and cross-examined "in one sitting." Some leeway needed to be allowed because the examination and cross-examination may need to take more than one sitting. A child may get tired or the court itself may decide it may be better to adjourn the sitting for continuation. Furthermore, there could be cases where new information may justify the need for a minor to be re-examined.

Also welcome was the clause providing that a convicted person may be ordered to pay damages to the victim of his crime. But what would happen when damages were not paid? Would that be converted into a prison term? And could the victim be able to request the issue of warrants in order to ensure payment?

The Bill also provided that when a person given evidence in an inquiry and the proces verbal was presented in court, that person would not be required to give fresh evidence unless the police or the Attorney General felt a need for this witness to give evidence for specific reasons. The accused could produce any of the said persons for the purpose of cross examination.

Dr de Marco said this provision could be disadvantageous to the accused as he, and the court, would not be able to hear the witness viva voce when it was well known that the way the witness acted was very important for a magistrate to decide whether or not to believe the evidence.

While it may be practical that not everyone was required to repeat his evidence in court, if the accused felt that a witness should give evidence viva voce in court, this should not be denied.

Concluding Dr de Marco also welcomed the clauses eliminating imprisonment in criminal libel actions and the lifting of mandatory imprisonment in cases of drug sharing when the amount was small and this was a first offence.

Labour MP Justyne Caruana said the Bill was removing certain sacrosanct principles. It was limiting human rights and restricting the judiciary.

She said the amendment raising punishment for crimes that stemmed from racism and religion was very positive and timely. Indeed, this could be extended for offences that resulted from intolerance for one's political beliefs. On the clause regarding the evidence of minors, Dr Caruana said the video conference system was a positive step to assist in the psychological recovery of minors who would have witnessed a crime. However, this amendment would not be successful unless all court halls were equipped with video facilities. Dr Caruana said that in the case of suspended sentences when the convicted person did not pay damages ordered by the courts there was a remedy. But what would happen in other cases?

The Bill also provided that the convicted person may be ordered to pay court costs. Such costs should be specified in a schedule.

The Labour MP hit out at the government for seeking to restrict the powers of magistrates in the holding of inquiries. The government, she said, was showing lack of confidence or it was afraid.

One could not move such amendments because there were a couple of cases which made certain people close to the government uncomfortable. One could not use such incidents to effectively gag some people. If the government was unhappy with the operation of certain magistrates it should take its complaint to the Commission for the Administration of Justice.

It was ridiculous that a magistrate could send a person to prison for 10 years, but could not decide to hold an inquiry.

She also insisted that removing the automatic right for bail went against the presumption of innocence.

She could not understand how the government, and especially Justice Minister Tonio Borg, could come up with this clause when caselaw at the European Court of Human Rights was so clear and this provision could therefore be challenged.

She understood that the idea behind the amendment was to treat multiple offenders differently from first time offenders. But to automatically imprison people for three months did not make sense. One should leave it up to the Magistrates' Court to decide. To have bail applications upheld, in exceptional circumstances, by the Criminal Court also reflected lack of confidence in the magistrates.

Dr Caruana said the clause providing for compensation for victims of crime was positive but she did not agree that after victim went through the whole criminal process, the victim had to exhaust all routes available in order to get compensation. This would be a waste of time and resources.

She also agreed with removing mandatory imprisonment for drug sharing. The law, as it stood, had resulted in young people being caught sharing a small amount of drugs being treated like traffickers.

That said, one needed to be firm in the case of traffickers.

One had to be careful of a new trend where the names of drug traffickers were not being made public on the pretext that this would be assisting the prosecution.

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