Lawyers are concerned about a one-month deadline within which they must file applications that could mean clients spend less time behind bars. Photo: Matthew Mirabelli

Lawyers are worried that a tight one-month deadline does not allow them enough time to file applications on behalf of clients who can benefit from changes that could lead to a lesser punishment.

The legal changes, which apply to drug and money laundering cases, allow people to challenge the previously unfettered discretion of the Attorney General to decide whether a person is tried in the Magistrates’ Court or face trial by jury in the Criminal Court. Those tried in the latter court face longer jail time.

People whose case started before the amendments came into force, on August 14, have a one-month deadline to challenge the Attorney General’s decision.

Lawyers contacted by Times of Malta pointed out that many of them and their clients were on holiday on August 14. Although they deemed the amendments to be positive they felt one month was way too short a period.

Giannella de Marco said that, while she welcomed the mechanism to challenge the Attorney General’s discretion, she felt the transitory one-month provision was lacking.

The government is in regular contact with the legal profession and is prepared to consider further amendments

“It should be three months, especially when one takes into account the fact that the one-month period started on the eve of Santa Maria [a public holiday], a time when people are away on holiday,” she said.

Joseph Giglio and Arthur Azzopardi agreed and said lawyers who handled drug or money laundering cases had to sift through countless files, establish who was eligible, contact the clients and draw up the applications. This took a lot of time and clients were not always easily contactable.

A Justice Ministry spokeswoman said the time limit was intended to enable court decisions to be taken by or close to October 1, when the forensic year started. “That being said, however, the government is in regular contact with the legal profession and is prepared to consider further legal amendments,” she said.

The August 14 provisions form part of a range of changes to the Criminal Code and follow various Constitutional Court decisions finding that the unfettered discretion enjoyed by the Attorney General was in breach of the right to a fair trial.

Previously, the Attorney General’s decision dictated the punishment faced by an accused because a person tried by a magistrate faces a jail term ranging from six months to 10 years while the Criminal Court hands down terms of between four years and life. Now an accused person can challenge this by filing an application in the Criminal Court.

The amendments made also include guidelines to aid the decision-making process.

These include thresholds of the amount of drugs found in a person’s possession. However, the new thresholds could have created unfair situations in some cases, a point raised by Dr Azzopardi in court on Sunday when making submissions during the arraignment of Joshua Galea, 21, of Mosta and Sam Zina, 19, of Żabbar who both pleaded not guilty to dealing in cannabis.

Does this mean that we would need judges to deal with these cases separately?

Dr Azzopardi, who represented Mr Zina, said his client wished to plead guilty but was worried about the legal repercussions following the amendments. Due to the drug amount thresholds listed, a guilty plea would mean his client (who was charged with having 500 grammes of cannabis) would have to be judged by the Criminal Court. However, in the past, people found in possession of the same amount had been tried in the lower courts, Dr Azzopardi said.

He called on the Attorney General to ensure that, in such cases, a counter-order (reviewing the decision on where the case was to be heard) would be issued immediately so that his client could plead guilty.

Dr Giglio raised other concerns, including that the Attorney General had the power to issue a counter-order after hearing all the facts of the case. However, in line with the new amendments, the Criminal Court could reverse a decision if a client filed an application. Did this mean the Attorney General, at a later stage, would no longer issue counter-orders that would contradict a decision by the Criminal Court?

He also questioned whether the fact that the Criminal Court pronounced itself on a case meant that the presiding judge would not be able to preside over the same case at trial stage. “Does this mean that we would need judges to deal with these cases separately?” he asked.