Over the past few years various and extensive were the amendments introduced to the Criminal Code. These were both of a substantive and also of a procedural nature. Many of the amendments, I dare say, were extremely innovative to our juridical regime and it appears that many others of the same genre, such as the law of inference, are in the pipeline.

Foremost among the above-mentioned laws was the one dealing with conspiracy, a concept that, until very recently, was alien to our penal system. Furthermore, it could be noted that certain amendments were introduced, at times in a rush, in the aftermath of given trials in order to circumvent certain traditional lines of defence.

Such reforms, at times, resulted in a number of test cases. Some of these were successfully prosecuted while others were not. It cannot be denied that all these new amendments did create a grey area in the law, which is only slowly being clarified by judicial precedent. On account of all this, it is certainly the case whereby, more than usual, certain miscarriages of justice have taken place.

In recent months we have witnessed a number of acquittals on appeal affirming indirectly that the accused would have been wrongly arraigned or that the facts of the case did not constitute any offence. So far so good. What is more worrying, however, occurs in those cases whereby the accused would not have been granted bail and would have, therefore, spent considerable time behind bars unnecessarily. All this has undoubtedly given rise to a number of injustices.

Though in no way do I purport that the powers of the authorities to prosecute should be restrained, on the other hand, if it later transpires that certain individuals would have been detained unnecessarily, these would deserve to be compensated for the moral hardship and material damages they would have surely sustained. In this regard, however, the civil courts have, on a number of occasions, declined to award any type of compensation declaring themselves divested of such competence.

Furthermore, amazingly, our laws do not provide for a form of mechanism whereby such aggrieved parties could automatically claim redress from the state. This is no longer acceptable. It must be pointed out that in foreign jurisdictions persons who find themselves in a similar plight are entitled to claim compensation from the government for their unjustified imprisonment. A case in point is the UK system. Though here there is no general right to compensation for those who have been mistakenly prosecuted or convicted, for a number of years compensation was awarded under a non-statutory ex gratia scheme.

In a written answer to a Commons question on November 29, 1985, Home Secretary Douglas Hurd had explained the principles governing the non-statutory scheme. He said:

"I remain prepared to pay Compensation to people who have spent a period in custody following a wrongful conviction or charge where I am satisfied that it has resulted from serious default on the part of a member of the police force or of some other public authority. There may be exception to the circumstances that justify compensation in cases outside these categories."

Nowadays, the payment of such compensation, though remaining ex gratia in the UK, is regulated by law. Here, the Secretary of State will determine if there exists the right criteria for such compensation and the amount due will be established by an assessor duly appointed.

I recall way back, soon after the Nationalist Party was returned to power in the late 1980s, when the government did provide for the creation of a special fund to cater for the reimbursement of indemnity to those who would have suffered damages in the performance of their duty. This fund was run by the Minister of Justice, who had the authority to examine the relative applications and duly award compensation on an ex gratia basis when he deemed the circumstances so warranted. I dare say, however, that the wide discretionary power granted to the state could have at times been misapplied.

In similar fashion, Parliament should debate the introduction of a related fund, this time to provide for reparations to persons wrongly accused and imprisoned. In Malta, however, such a fund should ideally be administered in an autonomous fashion and independently from the state. Unfortunately, the smallness of our country has contributed to much favouritism. Ideally, the fund should be chaired by a retired member of the Judiciary who would follow pre-established criteria.

It is good and fitting to introduce strong legislation to combat crime and strengthen prosecutions. On the other hand, however, such measures are to be counter-balanced by providing for remedial action for those who might suffer undue consequential hardship and this for justice's sake.

Dr Herrera is a Labour member of Parliament.