A number of cases of children being given custodial sentences by the courts have raised public concern.
The case of the 13 year-old girl who was sentenced to seven days imprisonment rightly raised questions about the administration of justice in such cases. In March 2007, three girls, aged 13 and 14 years, were prosecuted for their part in a fight with another group of girls of similar age in Valletta. All three were found guilty in the Magistrates' Court of "verbal abuse" and one was found guilty of "causing slight injury" to one of the other girls.
The three girls were sentenced to seven days' detention but while two of them filed an appeal against their sentence, the third did not. The two girls who appealed had their sentences revoked by the Court of Appeal, which placed them on probation. The 13-year-old - who had not appealed - had, therefore, to go to prison, becoming the first female juvenile to be incarcerated at the Corradino Correctional Facility. Two hours into her detention period the girl was moved to Mount Carmel Hospital.
On evaluating the case of the two girls who appealed, the Court of Criminal Appeal decided that, while the punishment handed down by the magistrate was within legal parameters, when one took into account all the teenage girls' circumstances and young age it felt that a probation order was more appropriate.
The difference in the end result could not be more stark.
More recently there was the tragic case of a 15-year-old girl who was charged with her mother's murder. On being arraigned, the court directed she should be sent to Mount Carmel Hospital.
This was closely followed by the case of a pregnant 15-year-old Bulgarian girl who was sent to prison for a few days, after being accused of pick-pocketing, before being transferred to hospital. She has since been given a suspended sentence.
All these cases expose the markedly different treatments in the punishments meted out by the courts. The laws that effectively opened up the possibility of jail terms for children were introduced in 2002, when sweeping reforms of the Criminal Code were enacted. They were meant to provide a more effective form of punishment for children convicted of heinous crimes, such as wilful homicide, drug trafficking and acts of terrorism. Before the 2002 amendments to the Code, children could only be sentenced to a derisory fine. It was, therefore, considered appropriate to allow magistrates to impose a jail term in those cases where such punishments seemed appropriate.
However, the Criminal Code also allows a very wide area of discretion to the magistrate in sentencing including, among others, issuing a care order or probation order, or ordering community service. The Code also lays down a number of criteria to guide the court in its assessment of whether or not, in exceptional circumstances, the punishment of imprisonment would be appropriate.
None of these intrinsically humane and sensible checks on the discretion and power of the courts appear to have been invoked in some of these recent cases. Since judgements of the Juvenile Court are covered by the rule of confidentiality, there is no way of knowing what led to the conclusion that a sentence of imprisonment would be more appropriate. Nor would it be apt for one to question it. Nevertheless, these cases have left a sour taste even if it is true that judges and magistrates do not make the law but apply it and that no adequate facilities have been provided for the incarceration of the more unruly young offenders.
The Commissioner for Children has expressed concern and reminded the courts of their obligations under the Rights of the Child Convention.
The successful administration of justice requires humanity, justice and equity to guide all the courts' judgments and to underpin every aspect of our laws. Even-handed justice appears to have been badly served in some of these cases. In a civilised society, the imprisonment of minors must surely be reserved for truly exceptional crimes, as the law intended.