The discretionary powers of the Attorney General have been placed under judicial scrutiny after a convicted arsonist claimed that the exercise of those powers breached his fundamental right to a fair trial.
A court upheld the man’s request for his claim, which includes discrimination, to be referred to a constitutional court.
The issue came up in the course of proceedings over an appeal filed by Martin Marco Baldacchino, assisted by lawyer Franco Debono, against a jail term of four years and six months handed down by the Criminal Court in 2016.
The self-confessed arsonist and reformed drug addict had set fire to the door of a house in Main Street, Qormi, in August 2011. He was caught red-handed, by an off-duty police constable, throwing a petrol-doused T-shirt next to the front door of the residence.
The man subsequently admitted that he had committed the act “for a shot of heroin”.
Following that admission, the man’s defence team and the prosecution traded arguments before the Criminal Court about the degree of punishment.
The defence pointed out that an attempt at plea bargaining had failed because the AG had refused to accept the accused’s admission to the lesser crime of arson without danger of life.
Arguing that everyone was equal before the law, Dr Debono highlighted similar cases of arson, resulting in identical charges, where the AG had agreed to an admission for the less serious charge.
“God forbid if in this country we were to be left to the mercy of the Attorney General,” who chose to apply one article of law sometimes and another article at other times, Dr Debono argued.
The prosecution countered that the accused had taken drugs intentionally and could not plead that his act was unintentional. Moreover, the man had not registered an early guilty plea. Finally, the accused had violated the terms of a conditional discharge so he could not benefit from a suspended sentence.
God forbid if we were to be left to the mercy of the Attorney General
In December 2016, the Criminal Court sentenced Mr Baldacchino to four-and-a-half years in prison, below the six-year minimum prescribed by law.
The accused and the AG both appealed and the case was adjourned for final judgment before the Court of Criminal Appeal in January 2019.
However, Mr Baldacchino’s lawyer filed an application before that court claiming that his client’s rights had been breached through the manner in which the AG had exercised the discretion entrusted to him by law.
The applicant requested the claim be referred to a constitutional court but the AG objected.
The appeal court, presided over by Chief Justice Joseph Azzopardi, Mr Justice Joseph Zammit McKeon and Madam Justice Edwina Grima, declared that its role was not to delve into the merits of the applicant’s claim but to assess whether his request was “frivolous and vexatious,” namely whether it was senseless and lacking sufficient grounds.
After examining the jurisprudence cited by the applicant’s lawyer, the court observed that there had been three similar cases of arson resulting in identical charges to those issued against Mr Baldacchino.
In those cases, the AG had entered into a plea bargaining exercise, accepting an admission for the lesser crime of arson without danger of life, as envisaged under article 318 of the Criminal Code, instead of the more serious crime of arson envisaged under article 316(a), where there was no loss of life but the perpetrator “could have foreseen that any person was actually in the place”.
Whereas the lesser crime carried a minimum jail term of two years and a maximum term of four, the more serious crime – insisted upon by the AG in respect of Mr Baldacchino – contemplated a jail term varying from six to 12 years.
In the light of this scenario, the court declared that the constitutional issue raised by the applicant was “neither frivolous and more so not vexatious, especially in view of the fact that the AG was seeking a revision of the judgment delivered by the Criminal Court, by requesting a more severe punishment”.
Consequently, the court upheld the request and referred the matter to the First Hall, Civil Court in its constitutional jurisdiction.
That court will now be asked to determine whether Mr Baldacchino suffered a breach of his right to a fair hearing and was unduly discriminated against when, he alleges, he was not treated in the same way as others facing identical accusations.
This is not the first time that the AG’s discretionary powers have been challenged in court. Five years ago, after a legal challenge also mounted by Dr Debono, the Constitutional Court had declared that the discretion enjoyed by the AG to decide whether drug cases should be heard before the Magistrate’s or Superior Court constituted a breach of the right to a fair trial, as this had an impact on the punishment the accused could receive. An automatic legal remedy has since been in place.