Protection of minors register by January

Malta is to have its first-ever Register of the Protection of Minors by January 1, 2011, Justice Minister Carm Mifsud Bonnici told Parliament on Wednesday.

Introducing the bill providing for the protection of minors in second reading, he said that when considering the Bill the authorities had looked at similar Bills which had a judicial system different to Malta’s, which also had a centralised system of criminal records. This was an advantage in setting up this register.

One of the major priorities that were tackled had been that of making this information accessible to the relevant authorities or individuals while using mechanisms to protect minors.

He said that officers who were responsible for the education, care, custody, protection and upbringing of minors were being held legally responsible to verify with the register to check whether or not a person seeking employment with the entity had been found guilty of an offence against minors. These officers could do so through a request made to the Court. Such officers had a great responsibility in approving persons working with or taking care of minors because where a person who had committed such a crime had been engaged, the organisation’s reputation suffered.

The impact that the local and the international media had on public opinion in cases which attacked the reputation of some members of the Church was evident. Officers in charge of such organisations, whether they were educational, cultural, sports or voluntary could have their reputation attacked. The new obligations imposed on them were in fact protecting their interests.

Minister Mifsud Bonnici said that in other countries there had been a lot of debate on how the register had to be set up so as to eliminate any shadow of doubt on its validity and reliability. This was not the case in Malta’s judicial system

He explained that for the last 150 years, one could register and deposit a secret will in the section of secret wills within the Voluntary Jurisdiction Section of the Civil Court (First Hall). This system had gained the confidence of the public.

The government opted to make use of this system for the Register of the Protection of Minors. This system ensured confidentiality and was administered by experienced members of staff who also knew how to prepare the way on how the records were to be kept. This section formed part of the Court administration and fell under the supervision of a judge. The courts had the authority to order what offenders should be recorded in this register.

The Bill also established access of information only to those officers responsible for organisations offering a service to minors. Measures were not draconian.

Dr Mifsud Bonnici said it was being left to the court to decide if a request was being made by a relevant entity. This made it another point of scrutiny with a judge hearing in camera and sifting the evidence.

A balance must be struck between divulging a perpetrator’s personal data and the interests of society. The court itself would be the sieve against frivolous requests for publication, thus protecting the system.

At the drafting stage it had been asked if the law should be restricted to instituting a register only for sexual offences, because there were so many other instances of children’s vulnerability. A case in point was trafficking drugs near a school.

The size of much bigger countries impeded them from having central registers as Malta would have. In others, past offenders could change their names by deed poll. It was already a mammoth task to have such offences on a register, let alone other offences.

Dr Mifsud Bonnici said the Maltese law would offer more protection. If anyone was found guilty of a crime involving child protection, their being put on probation would not necessarily mean they would not be included in the register. This would give the system added value.

Besides the crime itself, other considerations would be its nature, such as defilement of minors and self-exposure, and the circumstances of the case. There would be people who would commit offences due to mental illness, but others might do it deliberately and repeatedly, with more than one minor.

Inclusion in the register would not be automatic. The court was being given the power to decide whether to include an offender in the register and would have the discretion to decide against it. It was thus being given the freedom to decide on particular attenuating circumstances.

On the other side of the coin it was felt that the court should also have the faculty to decide that a case was of such serious nature that it warranted inclusion in the register, even though the offence was not included in the list in the Bill. This would give duality and more confidence in the system, ensuring that the court would be keeping control.

Dr Mifsud Bonnici said any case would be very delicate and not easy to decide on registration or otherwise. The system would require a lot of attention.

Another point in the debate had been on whether it would be possible to register persons who would have been found guilty of such offences in the past. Legal advice was that the registration system should go into effect once the Bill was passed into law, to form part of the penalties for a crime.

The court could order the termination of employment with children, forever or for a particular period of time. It could also order that the crime should be shown on the offender’s criminal record, with all the serious consequences entailed.

It had always been the practice that a penalty could not be retroactive. Registering someone with a past record who had reformed themselves could give rise to a Constitutional Court case, rendering the registration null.

Dr Mifsud Bonnici said there would be pre-set periods of registration according to the penalty for a crime. When somebody committed a crime entailing life imprisonment or more than 30 years’ jail the registration would be indefinite. Guilt of a crime carrying more than six months but less than 30 years would entail 15 years on the register, and imprisonment of six months or less would mean 10 years of registration.

The Bill contained a proviso to allow a registered offender to ask the Criminal Court to reverse the registration order. A case in point would be new developments, such as a person committing a crime at a young age but then irrevocably reforming themselves, in which case the court could order the lifting of registration.

It should be obvious that the Bill was trying to strike a balance among different circumstances. It was also being flexible in two important directions.

Through a Bill on the conduct certificate, which the House has already given a second reading, the Commissioner of Police would be authorised to exchange the conduct certificate of persons in EU member-states who could come to work in Malta.

There would now be a mechanism to know if they had committed any crime in their own or other countries. If the commissioner received information that a person had a history of such crimes he could ask for that person to be included in the register.

Second, crimes would be included in a schedule that would permit flexibility and change. These would include the prostitution of a descendant minor by an ascendant with violence, threats or deceit; and the enticement or violent instigation of minors for prostitution or pornographic exposure.

Dr Mifsud Bonnici said he was open to debate on what types of crime could or should be included in, or excluded from, the register. The government was trying to be cautious on types of crime to ensure the highest possible levels of protection.

The Bill was making it a direct obligation for persons running relevant entities to report to the Commissioner of Police whenever they learned of scheduled crimes being committed. With a view to children’s protection, anyone failing to lodge such a report would be themselves guilty of a crime.

There should be no second thoughts or uncertainty about whether to report a crime, fearing for the loss of an offender’s job. After all, that perceived offender might be found not guilty.

Dr Mifsud Bonnici said it was morally correct that such a positive obligation should be established at law. Headmasters, among others, had sent messages of thanks for the removal of such uncertainty.

It was very strange that the Maltese legal system did not oblige anyone to report a crime, but this obligation was now being introduced. There was no doubt that the vast majority of heads of schools were of good faith and would want the law to take its process in such circumstances.

The obligation to report also removed the pressure, especially when there were friends or relatives in the same workplace. The penalty for failing to report would not be trivial: between three months and four years in jail, or between €500 and €50,000.

Dr Mifsud Bonnici said the Church itself was not against such legislation. The Bill had been published on November 1, but the previous weekend the Bishop of Gozo had issued a public declaration ordering religious institutions to feel the legal obligation to report.

All parts of society agreed on this principle. It was imperative for the protection of children who were innocent and must not be abused by the superiors they so innocently trusted, with all the devastating effects of such abuse.

It also constituted an abuse when children could not be given due care because they might be called back to testify and must therefore not be allowed to forget the trauma. Children must now testify once with video conferencing, filmed and the crime confirmed, then given the care they needed. They were also being given protection by being kept out of the courtroom, without the presence of the perpetrator.

Dr Mifsud Bonnici said the Bill, once enacted, would serve as a deterrent for potential job-seekers. Once they had committed a crime they should be intelligent and not even apply for a job with children. Such people could be sexually underdeveloped or attracted by minors, born that way or induced. They must be kept away from children and given the care they needed – or they might be incurable.

This was only one scenario. There were others that could yet be avoided. With this law children would be so protected that once a crime had been committed, a perpetrator would never get a job close to them.

Concluding, Dr Mifsud Bonnici said he was still open to debate to ensure enhancements to the Bill’s existing framework. He was looking forward to quick progress that would see the new law becoming effective from January 1, 2011.