Opposition spokesman on Justice Josè Herrera has urged the government to set up a fund to give fair compensation to accused found not guilty by the courts after having spent time in prison because they were remanded in custody after having been denied bail.

In a wide-raging speech on justice affairs during the second reading of the Probation Act (Amendment) Bill, Dr Herrera suggested the fund would be administered by a board made up of a former judge and two other members to advise the minister. It was high time, he said, a fast track procedure be applied in cases where detainees were denied bail.

A British citizen who has been remanded in custody, had spent 30 months in prison before being freed. He was not given any compensation and his business had collapsed.

Dr Herrera said statistics showed that sometimes the courts were forgetting the reformation aspect in passing sentence with imprisonment being an average of 13 years - an increase of 20 per cent over the last 10 years. It was very difficult to reform a person who was sentenced to 10 or 15 years' imprisonment, he said.

The prison was understaffed and there was an excessive prisoner population, where ethnic and cultural problems existed and where tension was high. The prison infrastructure was not strong enough to deal with such a situation.

Dr Herrera also called for plea bargaining on drug cases. Statistics showed that out of 270 cases of trial by jury on drug-related crimes over the last eight years, only two accused had been acquitted.

The criminal law had been amended in a way that traditional lines of defence were limited. This could lead to convictions which were unsafe.

He disagreed that with the amendment to the Act that evidence given by an accomplice did not necessarily needed to be corroborated and would be considered sufficient in court. He also called for fine tuning on the idea of a conspiracy when the offence could never be manifested as this could lead to a miscarriage of justice. There was also some money laundering legislation which he called "dangerous". One had to strike a balance before departing from what was a traditional line of defence.

The amount of time taken to decide on certain criminal cases was of concern, pointing out that a case which had been before the courts for 15 years had still not been delivered. Another case involved a person who was arraigned in court when he was 36 years old. He was now a pensioner and judgment had still not been delivered. He called for a reasonable time limit within which an accused was given a fair trial.

He said it was unfair that a person given a suspended sentence be remanded to prison if they carried minor misdemeanours such as failing to send VAT returns. Fines and personal guarantees should be considered civil debts and should not necessarily be converted into imprisonment if not honoured.

Dr Herrera agreed with the amendment on probation procedures and on doubling the amount of time for community service. He said that there were administrative difficulties with the Director for Probationary services having to give evidence in each case where probation was considered. There was the need also of appointing more probationary officers.

He disagreed with the amendment that cases where there was a breach of the probation order should be examined by the Criminal Appeals Court and argued such cases should be dealt with by the judge or magistrate who had previously given the probation order.

This amendment was interference in the functions of the courts and was unacceptable and humiliating.

The opposition had never agreed that a sentencing policy be imposed on the courts because the judiciary was independent.

Dr Herrera spoke also on legal aid and said that the amendments that had been approved were detrimental to prisoners who could not afford a lawyer. There were legal aid lawyers who did not contact their clients for 18 months.

The government should exercise control on tariffs and let the accused choose a lawyer of their trust under the legal aid system. The government was spending thousands of euros on legal consultancies despite the fact that government agencies had their in-house legal consultants.

It was also time to set up a register and give some sort of warrant to those who worked as court translators. These should also be available during the interrogation process.

Dr Herrera said that the prison was a dreary place where inmates suffered psychological trauma and humiliation. He thanked the NGOs and the prison wardens who provided support to inmates.

The parole system was a step in the right direction if the aim was to reform and educate prisoners and not let them become addicted to drugs and smoking.

Concluding, Dr Herrera said that the fact that a large percentage of prisoners were relapsers proved that imprisonment had failed to reform them.

Owen Bonnici (PL) said that the Criminal Code contemplated four different kinds of conviction - imprisonment, solitary confinement, interdiction and fines.

Malta had long ago abolished corporal and capital punishment, strong evidence of how the local criminal system evolved. Capital punishment was last applied in 1963 but the sentence was changed to life imprisonment.

Dr Bonnici suggested that the abolition of capital punishment should be enshrined in the constitution.

He said that fines were socially unjust because the criminal code did not make any distinction on the social background of offenders. Life imprisonment for wilful homicide and serious drug-related crimes was purely retributive because it excluded any possibility of rehabilitation of the prisoner.

One had to strike a balance between the needs of society and the need to rehabilitate the offender. Very few magistrates applied Article 21 of the criminal code which gave them authority to give less than the minimum conviction in exceptional circumstances.

Dr Bonnici said that other court developments included the use of suspended sentences and of conditional discharge. The latter gave the greatest chance for the sentenced person to reform.

Other developments included the use of a care order in case of minor offenders and compensation by the offender to the victim for damages suffered. In 90 per cent of cases, victims wanted this sort of compensation and other guarantees from offenders.

He said that probation officers, who had 600 cases in hand, needed to have some sort of authority to enforce probation orders. The parole system could only be applied with the assistance of probation officers.

Dr Bonnici concluded that one had to strike a balance between retribution and rehabilitation.