Selected Essays on Criminal Law

selected essays on

CRIMINAL LAW

selected essays on

Criminal Law

2021 Published by Għaqda Studenti tal-Liġi

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Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society.

Correspondence in relation to this publication should be forwarded to:

The Publications Officer / The Resources Officer Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@ghsl.org or resources@ghsl.org © Għaqda Studenti tal-Liġi 2021 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher.

Proofreading and editing done by the GħSL Publications Office.

Opinions expressed in this publication do not necessarily represent the views of Għaqda Studenti tal-Liġi.

Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit v

Introduction Criminal law finds itself in a conflicting paradigm in this modern day and

age.

On the one hand the basic principles, as opined by famous jurists such as Carrara, Antolisei, and even the late Professor Anthony Mamo, have remained consistent throughout the decades, and remain as essential today as they were in prior years. These basic doctrines remain essential for any jurist or law student, in understanding the basic concepts of criminal law.

On the other hand, the modern evolving nature of criminal justice and the new wave of technological advancements which have changed the very nature of how criminal offences are committed, ensures that these same principles are often facing situations in which their respective authors, notwithstanding how forward looking, could never possibly envision.

In this light, this publication seeks to bridge the basic principles of criminal law and its modern day application. One would also note that the conflicting nature of criminal law, both in its adherence to traditional thought, and its applicability in the modern age, is perhaps best exemplified by the varied subject matter being discussed in this publication.

I am humbled and privileged to bring you this stand-alone publication. As evidenced by GħSL’s long and illustrious history, found in the large volume of books published during the decades, this organisation has always been on the forefront of academic and legal thought.

Following the success of last year’s publication, on Private International Law, we thought there was a need for a new standalone publication reexamining certain subjects related to Criminal Law. I remain forever indebted to all those who contributed to this publication either as a writer, a proofreader, an edit viewer or as a designer. I would like to express my thanks towards Madame Justice Consuelo Scerri Herrera for peer reviewing this publication; Andrew Sciberras, Maegan Grech and David Chetcuti Dimech, for proofreading this publication; and last but not least, Matthew Charles Zammit, for designing this handbook from scratch. vi

Lastly, I must thank you, dear reader, for engaging with this publication as we hope for it to leave another mark on the never-ending timeline behind the constant development of Criminal Law here in Malta.

Valentina Cassar

GħSL Vice-President 2020-21

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Foreword I

t is with great pleasure and honour for me to be asked by the Editorial Board of GħSL to write this forward to the Criminal Law Handbook.

I am likewise proud to state that I have been a regular contributor to the works published by GħSL ever since 1984 with my first article written as a student relating to the offence of Calumnious Accusation. I honestly look forward to all the publications issued by GħSL especially those related to my field of Criminal Law and cannot but praise their ardent work. I find it very interesting to be able to read academic work published through GħSL directly related to Malta’s legal framework. Sadly, not much is written in relation to Maltese Criminal Law and therefore this book will certainly be serving as a further basis to educate oneself on such chosen topics.

This book can most definitely serve up as an easy reference to students and lawyers alike when researching about a particular subject relating to Criminal law, especially if reference to case law was made.

Back in time, it seemed to be a practice that most law students took great pride and satisfaction in presenting their well-researched thesis on a chosen subject for their Doctorate of Laws. In fact, till this date I often go to the Library in court and look up a thesis when I feel the need to delve deeper into a particular section of the law and perhaps also make use of case-law therein mentioned. Though today even this luxury of reading well researched thesis is dwindling, since law students no longer submit thesis’ but dissertations for their undergraduate degree which is not as detailed as a thesis. In fact, the word count is much less.

It has always been my passion to read about Criminal law ever since the days when I was a student of the late Professor Guido De Marco. I remember following his lectures with great enthusiasm, since more often than not, he would refer to his past experiences which undoubtedly were explained in great detail. I could almost say that I had witnessed the event he would be discussing. It is perhaps having gone through such wonderful experiences that made me fervor the subject so much.

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Thirty one years have passed since graduating as a lawyer and yet I am still a great enthusiast on the subject and scrupulously follow case law delivered by the domestic courts and that of the European Court of Human Rights.

The Criminal Code of Malta has seen a great number of amendments to it, bringing it in line with the Directives issued by the European Union especially from a procedural point of view and such changes have definitely affected the outcome of our case law. It has created a tsunami of conflicting judgments at times also creating legal uncertainty in particular, those judgements relating to the right to legal assistance which was staggered into the domestic law of Malta over a number of years.

I am looking forward to this book being published and by individualizing the authors of the different articles, I am sure that their contribution is of high standard since most of them are prominent practicing lawyers. The Criminal Code has gone through a major overhaul with Act III of 2002 and in fact has also touched upon some of the subjects chosen in this book namely the instigation of defilement as evidenced in Article 203A. Other chosen topics such as computer misuse introduced by Act VII of 2010 is an offence which I often come across in my court sittings and thus this article would most defiantly interest me. By Act IX of 2014 the offence of bigamy was also amended so as to include any partner to a civil union contracted or recognized under the Civil Unions Act. I would like to conclude by congratulating the GħSL editorial Board for all the trouble they have taken in publishing this interesting and informative book and cannot wait to dig into the book to start reading. I would also like to send out a clear message to all students that: “The more that you read, the more things you will know. The more that you learn, the more places you’ll go.” – Dr. Seuss

Consuelo Scerri Herrera

Judge Law Courts of Malta

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Contents Criminal Responsibility The Theory of Criminal Liability

3

Chief Justice Emeritus Silvio Camilleri

Vicarious Liability and Corporate Criminal Liability

55

Dr Joe Giglio

The Crime of Conspiracy

65

Madame Justice Consuelo Scerri Herrera

Operation of Criminal Law Discussions on Extradition

79

Dr Chris Soler

Crimes Against Property and the Public Safety Theft, Misappropriation and Fraud - Any Difference?

95

Madame Justice Consuelo Scerri Herrera

Computer Misuse

107

Dr Ezekiel Psaila

Bribery Dr Veronique Dalli

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119

Crimes Affecting the Good Order of Families Sexual Offences - An Analysis of the Offence of Rape

127

Dr Charles Mercieca Dr Leonard Caruana

Crimes Against the Administration of Justice Perjury

143

Dr Stephen Tonna Lowell

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Contributors

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Project Leader Valentina Cassar

Writers Madame Justice Consuelo Scerri Herrera Chief Justice Emeritus Silvio Camilleri Dr Leonard Caruana Dr Joe Giglio Dr Ezekiel Psaila Dr Stephen Tonna Lowell Dr Chris Soler Dr Veronique Dalli Dr Charles Mercieca

Proof-readers David Chetcuti Dimech Maegan Grech Andrew Sciberras

Publication Designer Matthew Charles Zammit

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Criminal Responsibility

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The Theory of Criminal Liability Chief Justice Emeritus Silvio Camilleri

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1. Introduction Criminal liability requires the concurrence of the physical (or material) and moral (or formal/intentional) conditions laid down by law in order that a person with the capacity of will and understanding may be held to be the efficient cause of the violation of the law.

The fact that both a material and a formal condition are necessary for criminal liability to arise is conveniently and concisely expressed in the maxim actus non facit reum nisi mens sit rea.1 The material conduct (actus reus), which may consist in an act or an omission contrary to law, is not by itself sufficient to give rise to criminal liability unless it is accompanied by a formal (or moral) element, the guilty mind (mens rea). A person who is criminally liable for an offence is deemed by law to be the author of the offence.

Therefore, criminal liability is the result of the link of cause and effect between the person and the fact prohibited by law. The person is the cause.

The fact is the effect. The material and moral circumstances necessary to establish the link of cause and effect are the conditions which make up criminal liability.

Criminal liability may be distinguished from criminal responsibility.

Criminal liability is the relationship of cause and effect between the person and the fact contrary to law. Criminal responsibility is the relationship between the person and the State generated by that person’s criminal liability for the fact in violation of the law. Thus, criminal responsibility is the normal consequence when the sum of the conditions necessary for criminal liability subsists.

However, there are cases where although the physical and moral conditions for criminal liability are satisfied – thereby establishing the link of cause and effect between the person and the fact prohibited by law criminal responsibility (i.e. the person vis-à-vis the State) is excluded. This happens on account of particular circumstances which in the individual 1 For some criticism of this expression see Bloy and Parry, Principles of Criminal Law (4th edn, Cavendish Publishing 2000) pg 25.

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case render the fact, otherwise prohibited by law, in accordance and in conformity with the law, as in the case of the lawful executioner or a wilful homicide committed in self-defence.

There may be other circumstances where, although the material and moral conditions for criminal liability are satisfied, criminal responsibility is excluded (e.g. prescription, amnesty). We will not consider these circumstances at this stage. They are mentioned only to help us understand the distinction, at least as understood by Italian jurists, between criminal liability and criminal responsibility, which concepts are used interchangeably

by English authors.

2. The Material Condition The material condition of criminal liability consists of the totality of those circumstances which constitute the external conduct prohibited by law.

It is made up of the sum of the material or physical circumstances which constitute the fact prohibited by law, which fact is brought about by an act of man. This is also known as the actus reus. The actus reus, however, may also include a moral or formal (or mental or subjective) element consisting of a particular state of mind of a third-party such as the passive subject e.g. lack of consent of the victim. The actus reus may therefore also be described as consisting in all the elements of the criminal offence to the exclusion of the agent’s state of mind. 2 In order to establish the precise nature of the elements of the actus reus one must therefore necessarily refer to the legal definition of the offence in issue.

The formal (or moral or subjective) condition of criminal liability, also referred to as the mens rea, is the state of mind of the agent which according to the law must accompany the material condition of liability or actus reus.

The two conditions of liability (the material and the formal) are inextricably 2 Smith & Hogan, Criminal Law (8th edn, Butterworths 1996) pg 31. Also, Glanville Williams, Criminal Law: The General Part (Stevens & Sons Ltd 1953) pg 17 and Michael Molan, Sourcebook on Criminal Law (2nd edn, Cavendish Publishing 2001) pg 39.

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linked, as expressed in the maxim actus non facit reum nisi mens sit rea.

It is appropriate, therefore, that at this point brief consideration is given to the various forms that the material condition or actus reus may take before detailed consideration of the formal condition, or mens rea.

3. Acts, omissions, state of affairs, event 3.1 Acts The material element or actus reus of an offence may consist in an external act, which may be positive (an act of commission), or negative (an act of omission). Sometimes reference is also made to ‘acts of the mind’ or acts of the will, e.g. to think, to desire, to deliberate. But these are internal acts which are not punishable unless manifested externally since cogitationis poenam nemo patitur, i.e. no person is subject to punishment for his or her thoughts.

The nature of the act required to establish criminal liability varies from one offence to the other. In certain offences it may be specifically described.

Thus, in the offence of carnal knowledge with violence3 (rape) the act consists in carnal knowledge or, in other words, in a carnal or sexual connection. In theft4, although this is not expressly laid down in the Maltese formulation of the offence but has been long established in case-law, the act must consist in an act of ‘taking’. In the offence of arson4, the act specifically consists in ‘setting fire’ to a thing.

On the other hand, in the offence of wilful homicide5 the specific nature of the act required is not expressly laid down but is generically described as ‘causing the death’ of another person. The precise nature of the act which causes the death of the other person is not defined. It could be an act of poisoning, shooting, drowning, strangling or any of the multiplicity of acts which can cause the death of another person.

3 Criminal Code, Chapter 9 of the Laws of the Malta, Article 198.

4 ibid, Articles 316-318.

5 ibid, Article 211(2).

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3.2 State of Affairs The actus reus is not necessarily just an act but may also consist in a state of affairs6 such as being drunk, being in charge or being in possession.

The state of affairs is usually preceded by an act on the part of the offender, e.g. to drink, to take charge, to take possession, but this is not necessarily so. In one case, a woman who was brought from Ireland into the United Kingdom against her will in the custody of the police was convicted of the offence of having been found in the United Kingdom while being an alien to whom leave to land in the United Kingdom had been refused.7 Thus, she was found criminally liable for a state of affairs against the law when that state of affairs was brought about against her will and by the voluntary act of others. This conclusion has been criticised because it is reasonably argued that even ‘state of affairs’ offences ought to require that the offender caused the state of affairs or failed to terminate it when it was possible to do so.8

3.3 Omission The actus reus, as already mentioned, may also consist in an omission.

An omission consists in the failure to act in the manner expected by law.

A person also acts who fails to act in the way prescribed by law. Not all omissions, however, are punishable by law.

Some continental codes provide a general duty on all persons to assist others in danger9 and to protect from harm the property of others, but it is not so under our law. An omission, under our system, is only punishable when there is a duty imposed by law to act. It is only those persons under a duty to act who can be held criminally liable for omitting to act in line with that duty.

6 Smith & Hogan, Criminal Law (8th edn, Butterworths 1996) pg 31, 45.

7 Larsonneur (1933) 24 Cr App Rep 74.

8 Smith & Hogan, Criminal Law (8th edn, Butterworths 1996) pg 46.

9 See for example the offence of omissione di soccorso in art. 593 of the Italian Penal Code. See also art. 223-6 of the French Penal Code.

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There is a difference at law between killing someone and letting someone die by omitting to save that person’s life. The first is an act prohibited by law.

The latter is an omission not punishable by law (or an act not punishable by law). If I throw a man into the water intending to kill him and the man drowns then I have killed that man and have therefore committed a criminal offence.

If I happen to be walking by the sea-shore and see a stranger drowning and fail to save his life my omission is not a criminal offence because I am not under a legal duty (a moral duty is something else) to act to save his life. If I visit a prison and see a prisoner dying of starvation and fail to feed him and he dies, I am not criminally liable because no duty to feed him is imposed by law on me. However, if the jailer fails to feed the prisoner with the intention of causing his death and the prisoner as a consequence dies the jailer is criminally liable for wilful homicide. The jailer had the duty imposed by law to feed the prisoner and his omission caused the death of the prisoner, and therefore the jailer is criminally liable.

It may not always be an easy task to determine whether in a concrete case there was a duty to act or not.10 The fact remains that if an omission has resulted in a harm it must always be proved that according to law there was a duty to act for criminal liability to arise.

3.4 Event It is only such events as the law has chosen to forbid that give rise to criminal liability. The law does not always require that a particular event should result from the prohibited conduct for the completion of the offence.

In such cases the result of the prohibited conduct is not an essential element of the offence, e.g. the wrongful conviction of the person accused in case of perjury. In some offences, however, the law does require a specific result of the prohibited conduct as an essential element of the offence, e.g. the death of the victim in the case of wilful homicide.

Where the definition of the offence requires the happening of an event, 10 See Smith & Hogan, Criminal Law (8th edn, Butterworths 1996) pg 51; Bloy and Parry, Principles of Criminal Law (4th edn, Cavendish Publishing 2000) pg 47; Blackstone’s Criminal Practice (1994) pg 7-10.

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in the sense of a result of conduct, as an essential ingredient of the material element of the offence, Kenny distinguishes the event from the conduct producing it. In such cases, Kenny insists that it is the EVENT which is the actus reus of the offence and not the activity which caused that event11.

Modern writers, however, consider the activity producing the event as also part of the actus reus since that activity is an integral part of the external conduct contemplated by the law. The external conduct prohibited by the law is not simply the death but it is the causing of the death (e.g. Art. 211(2) Criminal Code), and so even the external activity causing the death must be considered as an integral part of the actus reus.

The event and the conduct resulting in that event need not be contemporaneous as long as the link of cause and effect between the conduct and the event is proved. Thus, in the offence of wilful homicide the death might occur months after the conduct which caused it. Of course, where a long time has elapsed it might prove impossible to prove that the death was caused by the conduct of the agent.

Due to the lapse of time between the event and the conduct giving rise to it, the event might ensue in a place different from that where the conduct occurred. Thus, a box of poisoned chocolates posted in one place may cause the death of another in a different one. Where the place of the event is outside the territorial limits of the country where the conduct occurred, then problems of jurisdiction could arise but the principle remains that criminal liability as such is unaffected.

3.5 Causation Although usually the issue of causation does not raise problems since the consequences of an act are normally manifest, yet the matter does raise questions with regard to offences where an event - understood as the consequence of conduct - is an essential element of the offence.

In respect of criminal liability, the law is concerned with human causation 11 Kenny’s Outlines of Criminal Law (19th edn, 1966) pg 17-18.

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because the question that needs to be resolved is the extent to which an act or event can be attributed to the conduct of a particular person. For a particular event to be attributable to a particular person it is necessary that the event is the result of the conduct of that person. In other words, there must be the link of cause and effect between that person’s act or conduct and the event envisaged by the law.

The very first requisite for the existence of the link of causation between act, ensuing event and the agent, therefore, is that the act must be voluntary.

If the act is not voluntary then it is not imputable to the person, and therefore human causation is to be excluded. Thus, if the act is the result of a spasm beyond the control of the agent then that act cannot be considered as an act of that agent and any event happening as a result of that act likewise cannot be attributed to that person. Similarly, where A grabs the hand of B, places in it a dagger, and then A plunges B’s hand holding the knife into the chest of C, killing him, C’s death was not caused by B but by A. The plunging of the knife into C’s chest was not B’s act but A’s because it was A who willed that act and not B. The element of voluntariness need not subsist during every moment of the dynamics of the conduct which ends in the event. Thus, A may send a box of poisoned chocolates to B with the intention of causing his death.

While the chocolates are on the way A changes his mind and no longer desires B’s death and does everything possible to stop the chocolates reaching B but without success. Against A’s will, therefore, B consumes the chocolates and dies. B’s death was still caused by A because it was A’s act which determined the death. The same is true if A in the meantime goes insane. Similarly, A remains responsible if, having switched on the timer of a bomb, A goes away, changes his mind but fails to switch off the timer before it explodes. A has caused the explosion because his initial act determined its occurrence.

The particular characteristics of human causation must be looked for in the particular essential attributes of a person which enable that person to control the happening of events. These attributes are identifiable in the powers of will and understanding: le capacità di intendere e di volere.

It is through the exercise of these faculties that a person can control the doing or otherwise of an act or the causing or otherwise of an event. In fact, 10

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through the capacity of understanding a person is able to be aware of the circumstances which militate in favour or against the doing of a particular act. Through the exercise of the will a person is capable of influencing events by giving a direction to the course of events by choosing to do or to refrain from doing an act. It is only such acts and events as are capable of being influenced by a person’s faculties of understanding and volition that can be said to be caused by that person. It is such acts or events which, if not desired by a person, could have been prevented by that person.

For an event to be attributable to a person, that person must have done or omitted from doing something without which the event would not have happened12 and the event was not attributable to the intervention of exceptional factors13. Thus, a person who has been slightly injured by the agent dies on the way to hospital because the ambulance is blown up in a terrorist attack. The slight injury has been caused by the agent and without that injury the victim would not have found himself in the ambulance but certainly it cannot be held that the death was also caused by the agent.

The link of causation may also be missing when the unlawful act of a third-person intervenes between the act of the agent and the event. Thus, A with the intent to kill B causes B slight bodily harm which of its nature could never result in death. While B is in hospital on the way to recovery, C, without A’s knowledge, comes along and kills B. A’s act would never have resulted in B’s death and therefore A cannot be held to have caused B’s death. On the other hand, B’s death would not have taken place had it not been for C’s act.

Therefore, while A can be held to have attempted to kill B yet B’s death was not caused by A but by C. Of course, the case would be different where A, with the intention to kill, has already caused such bodily harm to B as would of its nature result in B’s death and then C comes along and, even if without A’s knowledge, adds his services to bring about B’s death. In such a case B’s death has been caused by both A and C because both A and C caused such harm to B as would and did result in B’s death which would not have happened had it not been for 12 The ‘but for’ principle.

13 Francesco Antolisei, Manuale di Diritto Penale, Parte Generale (Giuffrè Ed. 1991) pg 216-217. See also Smith & Hogan, op. cit., p. 343, 345-354; Michael Molan, op. cit. pp. 59-90; Blackstone op.cit. pp. 10-15.

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the acts of A and C. Similarly, if A and C act in concert and with the intention to kill B assault him and cause B such harm that the combined effect of the injuries result in B’s death. Again, A and C have caused B’s death although the injuries inflicted separately by A and C would not have resulted in B’s death.

The above examples14 serve to illustrate the difficult problems of causation which may arise and the close analysis that may be required in order to resolve each case.

4. The Material Element or Actus Reus must be proved in all its ingredients While the mens rea may exist without an actus reus, no offence is committed without an actus reus. The latter must be proved in all its ingredients. If a single ingredient is not proved by the prosecution then the prosecution fails and the accused cannot be found criminally liable notwithstanding the fact that he or she may have had the most evil of plans and the guiltiest of minds. Thus, wilful homicide is defined as taking place when a person ‘maliciously, with intent to kill another person or to put the life of such other person in manifest jeopardy, he causes the death of such other person’ (S. 211(2)). You may have a suspect who, with the said intent, shoots another in the heart in the most cold-blooded and vindictive manner. You might also have a dead body. But still you might not have a wilful homicide.

Why? Because the person shot might have been already dead before the act of shooting. The actus reus is missing because the suspect did not cause the death of the other person. Causation is missing.

Similarly, theft is defined as the unlawful taking of a thing belonging to another with the intent of making a profit. A person may maliciously intend to take a thing belonging to another with the intention of profiting thereby.

14 See also Michael Molan, op.cit. pp.59-89 and re Scots Law, Jones and Christie, Criminal Law (W.Green/Sweet & Maxwell) pg 88-98

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The person in fact takes the thing. Still you might not have the offence of theft. Why? Because the thing turns out to belong to the taker himself. An ingredient of the actus reus, i.e. that the thing taken belongs to another, is missing and therefore the offence has not been proved.

A person may have the intent to have carnal knowledge with violence with another and does have carnal knowledge with the other believing that the other is not consenting. You might still not have the offence of carnal knowledge with violence because the other, without the agent’s knowledge, in fact consented.

A person may intend to cause damage to property belonging to another person and does cause such damage, but it turns out that the property belonged to the same person. You do not have the offence of wilful damage because an ingredient of the actus reus is missing.

5. The Formal Condition of Liability The moral or formal condition of criminal liability is the state of mind of the agent - the mens rea.

5.1 English and Maltese Law At the outset it should be pointed out that the approach of English criminal law to mens rea is different from that of Italian criminal law, to which our system is more aligned in this respect.

Most commentators on English law attempt to identify general principles of mens rea through cases decided by the Courts. They tend to enumerate different states of mind, any one of which could constitute the mens rea of a particular offence depending on the offence in question: ‘intention’, ‘recklessness’, ‘negligence’, ‘blameless inadvertence’, ‘basic mens rea’, ‘specific intent’, ‘ulterior intent’, ‘oblique or indirect intent’. They also try to 13

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distinguish the different ingredients of each state of mind. All these different concepts are helpful, and as defined by different authors, have similarities with the position under our own law. In our system we may use similar and at times identical words but attribute to them different shades of meaning.

Thus, what English authors refer to as ‘oblique intent’15 is very close to that state of mind described as ‘positive indirect intent’ in Italian doctrine and which is endorsed by our system. But the English concept of recklessness could prove misleading in relation to the concepts of intention (dolo) and negligence (culpa) under our own law. In common English parlance the word ‘recklessness’ connotes gross negligence which would fall under the notion of ‘negative indirect intent’ or culpa in Maltese criminal law.

The legal concept of recklessness in English criminal law, however, goes beyond negligence and implies unjustifiable risk-taking16 which, as shall appear, would fall under the notion of dolo. However, a further complication in English law arises due to the concept of gross negligence alongside that of recklessness17. The same can be said of ‘specific intent’ which seems to have been used somewhat inconsistently by the English courts18. In fact, it has been said that judicial attempts to develop a definition of intention in English law ‘have suffered from lack of certainty, inconsistency and disagreement’.19 It is particularly important to approach with caution texts by English authors on the mens rea of wilful homicide. That mens rea has traditionally been described as consisting in ‘malice aforethought’, which phrase has been considered as misleading. Indeed, there need not be any ill-will involved nor need there be aforethought in that no premeditation is required.

Today the mens rea of murder in English law is described as consisting in either the intention to kill (direct intent) or the intention to cause grievous

15 Smith and Hogan, op.cit. p.57-58; Blackstone, op.cit. pg 20.

16 Smith and Hogan, op. cit. p.64; Bloy and Parry, op. cit. pg 76.

17 Bloy and Parry, op. cit. pp.229-230; Blackstone, op.cit. pg 116-117.

18 Smith and Hogan, op.cit. pg 74.

19 Roger Geary, Understanding Criminal Law (Cavendish Publishing 2002) pg 13.

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bodily harm. This kind of intent has also been said to be a specific intent20 as is the case of the intent required for the offence of wilful homicide in our Criminal Code which is defined as whosoever, ‘maliciously, with intent to kill another person or to put the life of such other person in manifest jeopardy, […] causes the death of such other person’. Therefore, the direct intent of murder and wilful homicide in both English and Maltese law is ‘to kill’. However, it is the intention to cause grievous bodily harm which, in the English law of murder, constitutes the positive indirect intent of the offence. On the other hand, the intention to cause grievous bodily harm is not equivalent to the positive indirect intent of wilful homicide in our law, which intent consists in the intent to put the life of another person in manifest jeopardy21; the intent to cause grievous bodily harm will not be sufficient. Therefore, in so far as positive indirect intent is concerned, relying on English case law on the issue of the mens rea of wilful homicide under Maltese law is likely to lead to error.

The defence fell into such an error in the case Ir-Repubblika ta’ Malta vs Francis Casaletto,22 where in respect of the offence of wilful homicide the defence based itself on certain English judgements. In its judgement of the 8th November 1988, the Court commented that it could not understand how defence counsel could believe he could sustain his arguments unless he had a mistaken understanding of the notion of specific intent in wilful homicide. Later we shall see how, in this judgement, the Court explained the elements of criminal intent under our law.

Under our law the entire notion of criminal intent viz. the formal element of criminal liability, has its foundation on two fundamental concepts which encapsulate the mental attitudes which give rise to criminal liability viz. intention (dolo23) and negligence (culpa).

The essential elements of criminal intent under our law are the elements of will and understanding (intendere e volere) --- and when either one or the other is absent or defective at the time of the act a general defence to 20 Blackstone, op.cit. pg 94.

21 Article 211(2).

22 Court of Criminal Appeal (Superior) 8 November 1988 Vol.LXXII.v.893.

23 Compare notion of ‘dole’ in Scots Law cf. Jones & Christie op.cit. pp 45.

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criminal liability is available to the accused. Thus, the defence of insanity is grounded on a defect of the will and/or understanding as a result of a disease of the understanding mind at the time of the act in violation of the law. Self-defence is grounded on the fact that a person’s will is overcome by that person’s instinct to survive. Similarly, coercion is a defence because a person’s will is overcome by compulsion. The defence of mistake of fact is based on the lack of understanding of the circumstances of the unlawful act.

Intention, like insanity, in criminal law has a very precise technical meaning which does not necessarily coincide with the popular meaning of the word.

The ingredient of understanding consists of the awareness or knowledge of the wrongfulness of the act and in the foresight of its consequences.

The ingredient of will or volition consists in the will or desire to carry out the act and to bring about the foreseen consequences of that act.

When the will is accompanied by foresight of the consequences, the intention is said to be direct.

On the other hand, when the consequences are foreseen but not desired or not foreseen at all then the intention is indirect.

Where the consequences are foreseen but not desired but the means resulting in those consequences were willed then the intention is known as being positive indirect.

Where the consequences are not only not willed but are also not foreseen at all but were foreseeable by the exercise of due diligence, then the intention is said to be negative indirect.

Direct intention and positive indirect intention amount to dolo (wilful).

Negative indirect intention amounts to culpa (negligence) which has been defined by Crivellari as ‘la volontaria mancanza di previsione delle

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conseguenze prevedibili del proprio atto’. 24 For completeness one should add that where the consequences were not foreseen and were not foreseeable then there is casus (or accident) which falls outside of the framework of criminal intent. 25 Mens Rea (Intent) Indirect

Direct Positive

Dolo

Negative

Culpa

In the case of Repubblika vs Francis Casaletto26 to which we have already referred, the Court of Criminal Appeal explained the nature of criminal intent in the offence of wilful homicide as understood in Maltese criminal law as follows: Meta l-intenzjoni hi li toqtol allura dik hija intenzjoni diretta.

Meta l-intenzjoni hija li tpoggi l-ħajja f’periklu ċar dik hija intenzjoni posittiva indiretta. […] Skond id-dottrina l-intenzjoni hija indiretta meta l-event kien sempliċiment konsegwenza possibbli tal-actus reus liema event jew ma kienx previst jew kien previst iżda mhux mixtieq. Jekk tali event kien previst u minkejja dan l-actus reus kien mixtieq u volontarju allavolja il-konsegwenza ma kenitx mixtieqa, l-intenzjoni indiretta tissejjaħ posittiva. Illi [jekk] mill-banda l-oħra l-event possibbli ma kienx la mixtieq imma lanqas previst, l-intenzjoni indiretta tissejjaħ negattiva [...]

24 Giulio Crivellari, Concetti Fondamentali di Diritto Penale (Unione Tipografico 1888) § 30 pg 45; see also Luigi Maino, Commento al Codice Penale Italiano (3rd edn. 1911) § 181 pg 110.

25 See Carrara op.cit. § 66-68 pg 107-108.

26 8 November 1988.

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l-intenzjoni diretta kif ukoll dik posittiva indiretta in materja ta’ omiċidju jwasslu ghal dolus mentri l-intenzjoni indiretta negattiva tammonta għal negligenza jew għal casus.

We have already seen that for a person to be held criminally liable for an offence he must have been its efficient cause. A person is the efficient cause of the offence if found to have been the cause of that offence both physically (actus reus) and morally (mens rea).

For an act of a person to be the efficient cause of an offence such act must necessarily be adequate (idonea) for the purpose i.e. for the commission of the offence.

If it is not adequate (idonea) for the purpose i.e. it is not capable of causing the offence, then it cannot be an efficient cause of that offence.

This principle is important in relation to the notion of criminal attempt, and in particular in connection with impossible attempts.

At this stage it is sufficient to point out that for an attempt the law requires acts which amount to a commencement of execution of the particular offence in question. Commencement of execution necessarily presupposes acts which could execute the offence were it not for the intervention of ‘reasons independent of the will of the offender’.

Objectively the efficient cause of an offence is the sum of those circumstances which together bring about the commission of the offence.

Subjectively the efficient cause of an offence is the person who by his act of commission or omission consciously and voluntarily violates the law.

For a person to be criminally liable he must not only be the physical efficient cause of the offence but he must also be morally (or mentally) the cause of that offence.

Voluntariness is one of the essential elements of the moral condition

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for criminal liability. 27 Voluntariness of action presupposes the freedom to choose. Voluntariness is missing when the will is absolutely incapable of choice.

Voluntariness of the act is the minimum required for criminal liability to arise – whether the offence is a crime requiring criminal intent (dolo), whether it is a crime of negligence (culpa), whether it is a crime of strict (so called ‘absolute’) liability or whether the offence is a contravention.

In respect of formal (or ‘conduct’) crimes, where the offence is consummated by the very act or omission in violation of the law, the element of wrongful intent or dolo consists in the act or omission being the result of the combined action of the agent’s will and understanding or, as Antolisei puts it ‘occorre che ci sia stato un vero e proprio impulso del volere diretto alla realizzazione dell’azione o della omissione posta in essere’. 28 In the case of material (‘result’ crimes), where the definition of the offence requires not only a particular human conduct but envisages also the happening of an external result or event, the voluntariness of the act is not by itself sufficient to establish wrongful intent or dolo. In such crimes, the voluntary act must have a particular direction given to it by the agent. Thus, in such crimes not only the act (the cause of the event) must be voluntary but the event itself (the effect of the act) must also be foreseen and desired (willed).

What the law requires is not that the agent should be aware that the fact/event, is prohibited by the law but that he foresees and wills the event proscribed by law.

As we have seen criminal intent can be direct, when the event is foreseen and desired.

But it may also be indirect, in which case it can be positive indirect (foresight of event + recklessness or indifference as to happening of event) or negative indirect (no foresight of event + no desire of the event, but 27 mens rea 28 op. cit. p.304.

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foreseeability thereof).

Direct intent and positive indirect intent both amount to dolo and give rise to wilful offences.

Thus, Antolisei remarks that: Si ritengono altresì voluti i risultati del comportamento che sono stati previsti dal soggetto, anche soltanto come possibili, purchè egli ne abbia accettato il rischio, o più semplicemente, purchè non abbia agito con la sicura convinzione che non si sarebbero verificati. In questa ipotesi si ha il dolo indiretto, detto anche eventuale.29 Negative indirect intent amounts to culpa which gives rise to offences of negligence. In this scenario the consequences are not foreseen but they were foreseeable through the exercise of reasonable care30.

Thus, for an ‘intentional’ material offence or ‘result crime’, and therefore one requiring dolo, foresight of the consequences of the voluntary act is always required. ‘Intention’, however, is not to be equated with foresight, because in direct intent the consequences, to be ‘intended’, must not only be foreseen but must also be desired while in positive indirect intent the active subject must not only foresee the event but must also be indifferent or reckless as to the happening of the same.

It should be evident, from the above, that the distinction of criminal intent (dolus) into direct intent and positive indirect intent is a general distinction applicable to all intentional offences. It is therefore a total misconception to believe that the notion of positive indirect intent is limited to the offence of wilful homicide31, although the Criminal Code definition of this offence is the one which most readily comes to mind to illustrate the distinction between direct intent and positive indirect intent.

29 Antolisei, op.cit., Parte Generale, § 125, p.309.

30 For more on negligence see infra under CULPA. 31 vide Il-Pulizija vs Julian Genovese, Court of Criminal Appeal (Inferior) 12 August 2010 § 5.

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A person may well foresee the event as possible and yet he is certain he will avoid it. Therefore, he does not positively desire it nor is he reckless or indifferent as to whether it takes place or not. In fact, he positively excluded it by an act of the will and does everything possible to see that it does not happen. In reality, therefore, at the moment of the act, the agent does not foresee the event and what he does foresee is that the event will not happen. This is the position of the knife thrower in a circus act. At the moment of the act of throwing the knife he does not foresee the death of his colleague but what he does foresee is that the event will not happen. It follows that at the moment of throwing the knife the thrower does not have a direct intent to kill nor does he have a positive indirect intent to kill, which would both amount to dolo or wilful intent because foresight of the event of death is absent.

The agent, however, may be under the influence of alcohol at the moment of his act and a knife thrower exercising due diligence would have desisted in those circumstances. If the agent goes ahead nevertheless and as a result misjudges or miscalculates his throw, so that the event, which was not foreseen and was not desired, still takes place, then the agent failed to foresee what in the circumstances was foreseeable. In these circumstances the agent is liable for culpa or the negligent offence.

The latter scenario is possibly why article 43.1 of the Italian penal code defines a crime of culpa as one in which ‘the event, even if foreseen, is not desired by the agent and happens as a result of negligence or imprudence or unskillfulness, or due to non-observance of laws, regulations, orders or disciplines’. This definition implies that culpa may arise even if there is foresight of the event. Carrara, however, for the same reasons explained above, rejects this view and insists that la colpa con previsione does not make sense and falls into contradiction.32 In the foregoing we have seen that the framework making up the structure of mens rea in Maltese criminal law is built on the elements of will and understanding in relation to the material elements of the particular criminal offence.

32 op. cit. § 70 p.111.

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The extent to which the elements of will and understanding are reflected in the state of mind of the individual with respect to the material ingredients of the offence will determine the degree and nature of mens rea and accordingly the extent of the moral blameworthiness of the conduct in question. In turn, the extent of moral blameworthiness is reflected in the gravity of the punishment which the offence carries. The degree of moral blameworthiness depends on how fully the elements of will and understanding are reflected in the material elements of the offence. The more fully these elements are so reflected the more ‘perfect’ is the mens rea or criminal intent, and consequently the more morally blameworthy is the conduct in question and the more severe the punishment.

Thus, in direct intent (dolo) will and understanding are fully present in the act (the act is willed and there is understanding of its nature and quality), in the surrounding circumstances of the act (there is awareness and understanding of those circumstances, which are therefore willed) and in the event or result consequential to the act (there is foresight and desire of the event). This kind of intent is therefore ‘perfect’ and carries with it the highest degree of moral blameworthiness.

When either will or understanding is lacking with respect to one of the elements of the material conduct, whether the act, or the circumstances thereof, or the consequential event or result of the act, then the intent is imperfect and so is the mens rea. Accordingly, positive indirect intent is less ‘perfect’ than direct intent because in the former, although the act is willed and there is awareness and understanding of the surrounding circumstances, the event or consequence, although foreseen, is not positively willed or desired but there is recklessness or indifference with respect thereto.

Nevertheless, this kind of mens rea is still deemed by law to be dolo.

A person who, foreseeing that an act may cause an event prohibited by law, still persists in carrying out that act and therefore assumes the risk of the happening of that event, is deemed by law to have willed the event.

Similarly, negative indirect intent is even less ‘perfect’ than positive indirect intent because while the act is willed there may be defective awareness or understanding of the surrounding circumstances and the event or result is not foreseen or desired but was foreseeable by the ordinary reasonable man. In the latter scenario the event is not willed or desired by the agent 22

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but was foreseeable and preventable by the use of ordinary diligence and therefore there is culpa and not dolo according to law.

Here it would not be amiss to mention some examples to illustrate the different facts and attitudes of mind we have referred to: A. A shoots at B foreseeing that the shot will kill B and desiring to kill B. B dies as a consequence of the shot --- direct criminal intent (dolo).

B. A shoots at B wanting to punish him for something and foreseeing that B could die as a result. A is indifferent as to whether B survives or dies. If B is merely harmed, A would be satisfied but he wouldn’t mind if B were to die as a result. B dies as a consequence of the shot --- positive indirect intent (dolo).

C. i. A shoots at a bird in a tree. Under the tree there is B. A does not foresee that he could kill B although in the circumstances A should reasonably have foreseen that he could kill B --negative indirect intent (culpa).

C. ii. A shoots at a bird in a tree. B is under the tree. A foresees he could kill B. A does everything in his power to avoid hitting and killing B. A shoots, certain that he will not kill B. He does hit and kill B. A reasonable man in those circumstances using due care and diligence would not have shot at the bird --- negative indirect intent (culpa).

D. A is in a shooting gallery shooting at a target. Suddenly B, who is a spectator, falls from the spectator’s balcony into the path of A’s shot. B is killed. A could not have foreseen what happened nor could a reasonable man exercising due diligence have foreseen what happened (casus).

It is to be noted that in all these cases A’s act is voluntary. Even in the case of negligence (culpa) A’s act of shooting is voluntary although the harm, the event caused, is involuntary because undesired.

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On the other hand, a person may be examining a gun and is suddenly gripped by seizures and one of his spasmodic movements causes a gun to go off and kill B. Or A could be a surgeon in an operating theatre and an earthquake suddenly strikes and under the influence of the movements caused by the earthquake A involuntarily plunges his scalpel into his patient’s heart, killing him.

In both these cases A’s act lacks voluntariness. They are more reflex actions than anything else and since voluntariness of the agent’s actions is the minimum required for criminal liability, A is therefore not criminally liable in both cases.

5.2 Summing Up We have examined the elements of criminal intent and have identified these as consisting in understanding and volition.

We saw that the element of understanding implies awareness or knowledge of the nature and quality of the act accompanied by foresight of the consequences. The element of volition implies will or desire to perform the act and to will or desire the foreseen consequences of that act.

Therefore, the structure of criminal intent (mens rea) may schematically be summed up as follows:

DOLO Direct Intent: requiring foresight + will (desire) of consequences Positive Indirect Intent: requiring foresight + indifference, or recklessness, as to the consequences

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CULPA Negative Indirect Intent: no foresight + no will or desire of consequences + forseeability of consequences Where there is no foresight of the consequences nor is there foreseeability of those consequences then there is no criminal intent but there can only be CASUS OR ‘ACCIDENT’.

A fuller and more detailed representation of the above scheme in Pages 24-25. .

6. The Actus Reus and Mens Rea Must Coincide The actus reus and the mens rea must coincide for criminal liability to arise because mens rea implies an intention to do a present act and not to do a future act. This, however, must be properly understood, especially where an event is part of the material condition of liability.

Thus, it is enough that the criminal intent existed at the time of the act which was the cause of the event prohibited by law.

A sends a letter-bomb to B with the intention of killing him. Therefore, at the time of the act of sending the letter-bomb A has the requisite mens rea for the offence of wilful homicide. While the letter-bomb is on its way A changes his mind without being able to stop the fatal letter which eventually explodes killing B. At the time of the event A did not have the requisite mens rea for the offence of wilful homicide but he is still criminally liable for the offence because at the time of the act which was the cause of the event prohibited by law A did have the necessary mens rea.

The same applies if A goes insane between the time of sending the letter-bomb and the explosion. A would still be criminally liable and should

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26

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he eventually recover from his insanity he shall be subject to prosecution.33

7. Criminal Intent and Motive At this stage we must distinguish between the criminal intent and motive.

Criminal intent is one thing, motive is another. The criminal intent required for a particular offence is one and the same irrespective of the person who commits the offence and of the facts in issue. The motives behind the commission of that same offence, however, can be several and they can differ from one person to the other. The variety of motives is only limited by one’s imagination. Criminal intent is the intent required by law. It basically consists in the elements of understanding and volition.

As has been said, however, the motive can vary from one person to another. The motive is the reason why the person committed the offence.

If we take the offence of wilful homicide, the criminal intent of the offence is a specific one consisting in the intention to kill a person (direct specific intent) or to put a person’s life in manifest jeopardy (positive indirect specific intent). Its ingredients are the foresight and will or desire of the death of the victim, or the foresight of the death of the victim and being indifferent whether he lives or dies. These are the only forms that criminal intent can take for the purpose of this offence. It is sufficient for the prosecution to prove either form of the criminal intent.

The reasons WHY the agent desired the victim’s death or the reasons WHY the agent was indifferent whether the victim died or not can run in hundreds; among these, the agent’s motive might be to inherit the deceased (greed), it might be that the agent envies the victim’s wealth (envy), or wants to be able to marry the victim’s spouse, or wants revenge, or because the victim was philandering with the agent’s spouse, or the agent might want to rob the victim, or the agent might want to stop the victim speaking out 33 See also Smith & Hogan, op. cit., pg 79-81; Jones & Christie, op. cit. pp. 49-51; Glanville Williams, Textbook of Criminal Law 2 edn) pg 255-256; Roger Geary, op. cit., pg 26; Bloy & Perry, op.cit. pg 92-95. nd

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(blackmail).

The motive might even be laudable and need not necessarily be one born out of malice. Thus, a person might want to kill someone in order to relieve him from excruciating pain, e.g. euthanasia. If that person kills the patient, he would still be liable for wilful homicide. He foresaw the consequences of his act and desired those consequences (the death of the victim) and therefore he had the necessary criminal intent even though his motive was in itself a good one.

The law sometimes uses the word ‘maliciously’ in the definition of an offence, as in the definition of the offence of wilful homicide.34 But in such cases the word maliciously does not mean that the offence must be committed out of spite, or with ‘malice’ as popularly understood, it does not mean an evil motive, but it merely expressly lays down that the conduct must be contrary to law. Thus, the word maliciously in the definition of the offence of voluntary homicide is meant to exclude from the definition such wilful homicides which are permitted by the law and as such are lawful, e.g. the wilful homicide committed by the executioner in the exercise of his official duties as an executioner, the wilful homicide committed by a person in the lawful defence of his own life or in the lawful defence of the life of others, the wilful homicide committed by a soldier in time of war. At times the word ‘maliciously’ is also used to underline the fact that the law is punishing the wilful act, i.e. it is emphasising that the offence required dolo and not the negligent act i.e. culpa.35 The same effect can be obtained by the law using the word ‘knowingly’36 or the word ‘fraudulently’37 or some other similar expression.

This does not mean, of course, that if the law does not use any such expression then no criminal intent is required. In fact, as a rule the law does not expressly lay down the criminal intent required for the offence.

34 ‘A person shall be guilty of wilful homicide if, maliciously, with intent to kill another person or to put the life of such other person in manifest jeopardy, he causes the death of such other person.’ Art. 211(2) Criminal Code.

35 e.g. Art. 82, 107(1), 138, 244,311,314A, 314B Crim. Code.

36 e.g. Art. 103, 107, 111(2), 157, 158, 168(2), 169, 243, 244A Crim. Code 37 e.g. Art. 110(1), 176, 180, 188B Crim. Code.

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Nonetheless the criminal intent, consisting in the basic elements of will and understanding, is still required. It used to be held that where the law clearly lays down an offence of absolute liability (or absolute prohibition), no criminal intent is required. It is today argued, however, that even in such cases liability is strict not ‘absolute’. Even in cases of so-called absolute liability criminal intent, at least in its most basic form, consisting of the voluntariness of the act, is still required.38 Moreover, it is argued that in such offences certain defences are still available to the agent and this is why today authors prefer to speak of offences of strict liability rather than of offences of absolute liability.39 The criminal intent is the attitude of mind with which the agent did the act. The motive is the reason why he did the act.

The motive behind the offence is generally irrelevant for the purpose of guilt or criminal liability. What the prosecution must prove is the criminal intent. As a rule, motive is not an element of a criminal offence40 and therefore the prosecution need not prove the motive, which may remain forever hidden. Of course, if the prosecution knows and does prove the motive this could explain why the agent behaved in the way he did and could render easier the prosecution’s task of proving the criminal intent. For the purpose of evidence, therefore, proof of motive may be very relevant indeed. But otherwise the prosecution may fail to prove the motive and yet if it proves the criminal intent and the material conduct prohibited by the law then it has proved the agent’s guilt. There have been situations, in certain jurisdictions not so uncommon, of persons taking hold of a firearm and just going around shooting people in restaurants, or out in the streets, or in schools or colleges, without any apparent motive. Of course, the persons in question could result to be insane, but failing this they would be criminally liable for their acts even though no apparent motive can be proved.

On the other hand, motive may be juridically relevant when one comes to determine the amount of punishment due for the offence. Clearly, a person 38 Perhaps with the exception of ‘state of affairs’ cases: see Bloy & Parry, op. cit., pg 28-30.

39 See Smith & Hogan, op. cit., pg 116-117; Jones & Christie, op.cit., pg 319; Bloy & Parry, op. cit., pg 96.

40 But see infra.

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who kills to relieve his victim of further suffering, possibly at the victim’s own request, deserves more compassion than a person who kills out of greed to inherit his victim. The judge may very well take this circumstance into consideration for the purpose of mitigating the punishment.

The motive may also become relevant when the law itself takes it expressly into consideration for some purpose or other.

Thus, the law may itself expressly take into consideration the motive of the agent for the purpose of aggravating the punishment due. In the offence of illegal arrest, for example, from seven months to two years imprisonment the punishment is increased to thirteen months to three years imprisonment where the purpose or motive of the agent is to extort money or effects or to compel any other person to agree to any transfer of property belonging to such person. The punishment is similarly aggravated where the purpose of the agent is to force another person to do or to omit an act, which, if voluntarily done or omitted would be a crime (Art. 87(e), (f) Crim. Code).

This is also the case in the offence of calumnious accusation where the punishment is aggravated when the motive of the agent is to extort money or other effects (Art. 101(2) Crim. Code).

The law may also take into account the motive of the agent for the purpose of mitigating the punishment. Thus, in respect of the offence of abduction, the Criminal Code used to provide that the punishment for the offence was that of nine to eighteen months imprisonment where the agent’s intent was to marry the person abducted, while if the offence was committed with the intent of abusing of the person abducted then the punishment was the more severe one of eighteen months to three years. 41 In this respect one may note that the motive to abuse or marry is the special purpose (or motive) behind the commission of the offence and this special purpose as part of the criminal intent renders the intent a specific intent. 42 Here, therefore, the motive acquires great relevance as part of the definition, and one of the elements, of the offence itself.

41 Art. 199 of the Criminal Code before its substitution by Act XIII of 2018 which overhauled the definition of the offence.

42 See infra.

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7.1 Specific intent Therefore, the motive of the agent may also be juridically relevant in another important way viz. where the special purpose of the agent is taken into account by the law as constituting an ingredient of the criminal intent or mens rea of the particular offence. In such circumstances the usual basic elements of criminal intent viz. understanding and volition -- understanding the nature and quality of the act and the wilfulness of that act -- are not sufficient to constitute the particular criminal intent of the offence since a particular special purpose must exist in the mind of the agent. In such circumstances the criminal intent is described as a specific intent since besides the generic elements of criminal intent a special, specific purpose in the agent’s mind is required. 43 Thus, the offence of abduction required a specific intent since besides the knowledge and the will to do the act of abducting a person the agent must have one of the special purposes expressly envisaged in the law viz. either the purpose of abusing of the person abducted or the purpose of marrying that person. 44 Similarly, the offence of wilful homicide requires a specific intent since the agent must not only be aware of and will the act but he must do so with the special purpose of killing or putting the life of the victim in manifest jeopardy. If he is aware of doing the act and wills it but his purpose is not to kill or put life in manifest jeopardy but his purpose is simply to cause injury in general to another then we do not have the specific intent of wilful homicide but we have the generic intent of the offence of causing wilful bodily harm.

Other offences where the definition of the offence expressly contemplates a special purpose in the mind of the agent as part of the criminal intent, so that the intent becomes a specific intent, are the offences under articles 68(2) (‘for the purpose of committing an offence’), 73 (‘with intent [...] to excite other persons to attempt to alter any matter established by law, by violent means’), 85 (‘in the exercise of [i.e. with the intent or for the purpose of exercising] a pretended right’), 94(1) (‘with intent to intimidate or unduly influence him in the 43 Manzini, op.cit. pg 671.

44 Article 199 of the Criminal Code pre-2018 amendment. Following amendment the offence requires an intent to cause harm and no longer requires an intent to abuse or to marry the per son abducted.

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exercise of his functions’), 205 (‘in order to gratify the lust of any other person’), 250 (‘with intent to extort money or any other thing, or to make any gain etc.’), 295 (‘with intent to obtain for himself or for any other person the payment of any money due under any insurance against risks’) and, 321 (‘with intent to cause the loss or stranding of any ship, vessel or boat’).

Sometimes the motive may also be very much juridically relevant because it may render lawful an act which otherwise would have been unlawful. Thus, unlawful assembly is a crime. But article 81 of the Criminal Code provides that where the common purpose of the persons assembled is that of assisting in the defence of the possession of the dwelling-house or other property of any one of them or in the defence of the person of any one of them then there shall not be deemed to be an unlawful assembly notwithstanding the fact that without such purpose there would have been the offence of unlawful assembly.

Similarly, where a wilful homicide has been committed in lawful selfdefence or in the lawful defence of another person (Art. 223) or for any of the purposes mentioned in section 224 of the Criminal Code, then the wilful homicide is not unlawful and no offence is committed.

8. Generic and Specific Intent Reference has already been made to these two different kinds of criminal intent. Some further comment is appropriate.

The generic (or basic) criminal intent consists in will and understanding, i.e. a person who wilfully and knowingly carries out an act contrary to law is acting with generic intent. It consists in doing an unlawful act with understanding and volition, i.e. while being aware of the nature and quality of the act and willing or desiring the act. 45 In the case of material offences or result crimes the requirements of will and understanding extend also to the event which must be foreseen (understanding) and desired (willed).

45 See Antolisei op. cit. § 127 pg 312-313; Manzini op.cit. pg 654-657, 671.

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Some authors argue that generic intent requires that the agent must also be aware that the act is unlawful or illicit. Antolisei rejects this view for reasons which he explains46 but then adds that the agent must be aware of the anti-social character of the fact viz. must be aware that his conduct is harmful to others. 47 This kind of intention is usually sufficient in most criminal offences for criminal liability to arise.

In certain cases, however, besides the usual elements of understanding and volition, the law also requires a special purpose which gives a precise direction to the act and which very often serves to distinguish one offence from another. This is specific intent. 48 Thus, since the offence of illegal arrest (Art. 86) does not require any special purpose, the criminal intent of the offence consists in knowingly and voluntarily depriving a person of his freedom of movement contrary to law.

The intent required is the generic (or basic) one consisting of understanding and volition. In the offence of abduction we again have the agent knowingly and voluntarily (the usual elements of generic intent) depriving a person of his/ her freedom of movement but this time a special purpose is also required in order that criminal liability for this offence will arise viz. the agent must have the special purpose of abusing or marrying the person abducted (Art. 199(1) before amendment). 49 For this offence of abduction, therefore, the law requires a specific intent. Failing this special purpose, this specific intent, we have the offence of illegal arrest under section 86.

Similarly, the agent may cause harm to another person as a consequence of which that person dies. If the agent’s intent consisted in knowingly and voluntarily wanting to cause harm to that person then we have the generic intent sufficient for bodily harms, including the offence of grievous bodily harm from which death ensues (S. 220(1)). If this generic intent was 46 Antolisei op.cit. § 127 pg 312-313.

47 ibid § 128 pg 315.

48 Manzini op.cit. pg 671.

49 See n.38 supra. The current definition still requires a specific intent since the specialpurpose ‘to cause harm’ is necessary.

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accompanied with the special purpose of causing the death of that person or of putting that person’s life in manifest danger then we have the specific intent of wilful homicide.

We have already mentioned other offences where a specific intent is required.50

9. Determinate and Indeterminate Intent The intent is determinate when the event caused corresponds with the event foreseen and willed or desired by the agent.

It is said to be indeterminate when the agent desired one result but foresaw also the possibility of a more serious result and was indifferent (or reckless) as to whether that more serious result in fact occurs and assumed the risk of it occurring. This therefore corresponds to what Carrara refers to as positive indirect intent51 and what Antolisei simply refers to as indirect intent (dolo indiretto).52 In offences of bodily harm, the intent required is a generic intent consisting in will and understanding. This kind of intent has also been described as indeterminate in that the agent may not have any particular harm in mind apart from causing harm in general. In respect of these offences the principle dolus indeterminatus determinatur ab exitu53 finds application in that the agent acting with the intent to cause harm in general will be held criminally responsible for the outcome, whatever it may be, which ensues as a result of his conduct, i.e. the agent will be responsible for the bodily harm that is actually caused – including death - even if it might not have been

50 See supra pg 26-27.

51 Carrara op.cit. § 70 pg 111; see also Crivellari, op. cit. § 28-29, pg 42-43.

52 Antolisei op. cit. pg 309.

53 Luigi Maino, Commento al Codice Penale Italiano (3rd edn, 1911) § 179, pg 109.

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specifically foreseen by the agent.54 Manzini does not agree with the terminology used in this classification and yet still goes along with its continued use because it is widely accepted.55 Other jurisdictions may have a different understanding of what constitutes indeterminate intent.56

10. Good Faith To complete our survey of the various attitudes of mind we must now consider ‘good faith’.

We have seen that the elements of criminal intent are understanding and volition i.e. being aware of the nature and quality of the act and being willing (or desiring) to do it.

Good faith is the antithesis of criminal intent. It is the reasonable belief of doing something lawful.

To constitute an exemption from criminal liability, however, this good faith must not arise from ignorance of the criminal law, which ignorance does not constitute and excuse in criminal law (ignorantia legis neminem excusat).

Good faith must be based on a mistake of fact or a mistake of law other than the criminal law.

A, from among various umbrellas, takes an umbrella believing it to be his when in fact it belongs to another. Here A is in good faith and his good faith 54 vide Ir-Repubblika ta’ Malta vs Rotime Williams Akande, Court of Criminal Appeal (Superior) 12 June 2019 §58; Il-Pulizija vs Joswil Galea, Court of Criminal Appeal (Superior) 26 April 2007; and several others.

55 Manzini op. cit. pg 672.

56 cfr. Judgment of the Supreme Court of Appeal of South Africa: Director of Public Prosecu-tions vs Oscar Leonard Carl Pistorius, 3/12/2015, where dolus indeterminatus is explained as‘the killing of an indeterminate person’.

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is based on a reasonable mistake of fact, and therefore he is exempted from criminal liability.

Doubt is neither ignorance nor mistake. Doubt as to whether something is lawful or not means knowledge that it could be unlawful, and therefore if one does not first seek to eliminate the doubt then he still acts with intent, unless the law requires certainty of knowledge as an ingredient of the offence.

11. Premeditation Premeditation is the planning of an action beforehand. In the present context it means the planning ahead of a criminal offence. However, a person may have premeditated a criminal offence and may have carried out the act which constitutes the material element of the offence, and yet he might not be criminally responsible for the offence. This for the reason that though he might have formed criminal intent sometime in the past and planned how to execute the offence, yet when the material element is realised criminal intent is missing. Thus, A may have planned murdering B for months and one day a pedestrian crosses the road right in the path of A’s car. The pedestrian is hit by A and dies as a result. When A gets out of his car he finds that B is the person he ran over. A may be overjoyed at the discovery. Yet at the moment of the incident A was unaware of the pedestrian’s identity and did not intend to kill him. A intended and deliberated at length to kill B and did cause B’s death but he is still not responsible for the wilful homicide of B because, notwithstanding all the premeditation, at the moment of the act which caused B’s death A did not have criminal intent.

Premeditation is not a requirement of criminal intent or mens rea, which does not need long deliberation before it is formed. In fact, it may be formed at the very moment of the act. It may, however, constitute an aggravating circumstance and proof of premeditation may be valuable evidence of the fact, required mens rea.

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12. Res Ipsa Loquitur The maxim res ipsa loquitur has long been invoked in criminal proceedings in Malta. The idea is that the facts in a particular case speak for themselves in the absence of an explanation by the defendant, whereupon the burden of showing that the defendant bore no guilt for what happened falls upon the defendant. However, this doctrine was eventually examined in detail by the Court of Appeal which rejected its application in criminal proceedings.

It pointed out that the doctrine had been imported from English caselaw, where it had been applied exclusively in respect of civil cases for damages based on negligence. Instead, what had a similar effect in criminal proceedings were ‘presumptions of fact’ whereby the circumstantial evidence was such that it gave rise to the possibility of the drawing of inferences by the court.57

13. Culpa Above we examined in some detail the nature of criminal intent and for that purpose we also made brief reference to culpa as a basis of criminal liability in certain cases. We also attempted to identify the mental or subjective content of this ground of liability.

We saw that essentially in offences of culpa we have the absence of foresight and the absence of desire of the consequences of an act combined with the foreseeability of those consequences.

Thus, we have a negative state of affairs (the absence of foresight and will) combined with a positive condition (foreseeability).

The absence of foresight and desire is the reverse or negative aspect of the requisites of foresight and desire which, as we have seen, are implied in the elements of understanding and volition which we have identified as the constitutive elements of wrongful intent or dolo.

57 Edgar Zahra vs Carmelo Vassallo, Court of Appeal (Superior) 5 April 1971. See also Il-Pulizija vs James Abela, Court of Criminal Appeal (Inferior) 11 July 2002 for a brief study of the issue.

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From this point of view, the absence of foresight and desire, being a state which is the negation of intention, can be viewed as a mental state.

13.1 The Subjective Theory As such, negligence can be conceived as having a subjective character.

In this conception, the state of negligence is considered as a state of mind consisting in a state where the mind is not sufficiently alert to the circumstances and consequences of an act, which therefore fail to register in the mind of the agent.

Some legal systems and legal authorities, however, do not consider negligence as a state of mind. In fact, some argue that negligence does not even fall within the notion of mens rea. The lack of foresight and desire is not seen as a state of mind but is seen as the negation of a particular state of mind, i.e. the absence of any particular state of mind. This appears to be the attitude taken by English and Scots law to negligence as exceptionally a ground of criminal liability. In these systems the test for negligence is an objective one consisting in the failure to conform one’s conduct to the standards of the reasonably prudent man.58 The question is: where from the mind certain attributes of the mind are absent, does this fail to be a state of mind? If the answer is in the affirmative then there should be no doubt that it is appropriate that negligence be deemed a form of mens rea.

Moreover, some authors do accept that lack of foresight and desire of the consequences constitutes a state of mind but they do not consider this to be the ground for criminal liability for offences of negligence.

We have already seen, in fact, that the absence of foresight and desire does not, by itself, ground liability for offences of negligence. The voluntariness of the act causing the harm prohibited by law is necessary, i.e.

58 vide Blackstone, op.cit., § A2.11, pg 27; Smith & Hogan, op. cit., pg 94,95; Glanville Williams, op.cit., pg 88; Jones & Christie, op. cit., § 3.31, pg 49; Geary, op.cit., pg 22. For a discussion on this issue see George P. Fletcher, Basic Concepts of Criminal Law (OUP 1998) pg 117-120.

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the agent must be aware of doing the act and he must will the act, otherwise we do not have negligence but we would have force majeure or accident.

At least in this limited form, the positive elements of understanding and volition, limited to the act of the agent, must exist even in offences of culpa.

But besides the fact that negligence as above conceived can be seen as having a subjective character, there is another element which is required for negligence to give rise to criminal liability viz. foreseeability of the consequences of the agent’s conduct, whether an act or an omission.

It would be utterly sterile for the law to punish conduct producing certain consequences and because they produced those consequences or because they could produce such consequences when those consequences could not be reasonably foreseen.

But how is foreseeability to be measured?

If it is measured from the point of view of the agent then negligence would be exclusively subjective in character.

But is foreseeability really to be measured from the point of view of the agent?

There is no doubt that the circumstances in which the agent acted must be taken into consideration to determine whether the event brought about by him was in fact foreseeable. Thus, one must place oneself in the position of the agent, because only by so doing can one determine whether the specific event produced by the specific act in those specific circumstances was foreseeable or otherwise.

From this perspective foreseeability is subjective. The question to be answered would be ‘Could he have foreseen the event?’

But if this were the case this ground of liability would not be very helpful at deterring harmful conduct. If the agent happens to be personality-wise a negligent, imprudent, mentally indolent person, he would probably not have foreseen the event in any case. This means that precisely the kind of 40

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person against whom the law seeks to protect society would be exempted from responsibility. The agent would be exempt from liability because he was of a negligent character and of an indolent intellect. Certainly an unsatisfactory result.

On the other hand, the objective is to determine the existence or otherwise of something which did not exist in the agent’s mind. The objective is not to try to determine what the agent foresaw but whether the agent could have foreseen what he did not foresee.

And how can we determine whether he could have foreseen what he did not foresee?

Of course, if the event could have been foreseen by him then he would have acted negligently. But what if the event could not be foreseen by him but was foreseeable by others in the same circumstances?

In such a situation the standard adopted is that of the ‘reasonable man’ or ‘ordinarily prudent’ man. If the event was foreseeable by such a ‘reasonable’ or ‘ordinary prudent man’ then the agent would still be liable.

Such a standard of care would be subjective with reference to the ‘reasonable man’ or the ‘ordinary prudent man’ but not with reference to the agent because foreseeability is not determined by using the agent’s standard of care as a measure.

On the other hand, the ‘reasonable’ or ‘ordinary prudent’ man is not a real person but is an abstraction. With this in view, can ‘foreseeability’ be considered to be subjective in character or is it really an objective standard?

This consideration is of some relevance because it brings this concept closer to what is understood as the objective theory of criminal liability in offences of negligence. The subjective and objective theories are often viewed as opposing theories when they could really be considered as complimentary with one integrating the other.

Before we consider the objective theory, it is important to be able to distinguish what is foreseeable from what is actually foreseen.

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The act of a person who foresees a consequence but at the moment of the act hopes to avoid it and does everything to avoid it must not be confused with that of a person who foresees the consequences of his act and is indifferent as to whether that consequence takes place or not.

In the first case what the agent foresees is that the event will not take place. In the second case the agent foresaw the event as a possible or probable consequence of his act but was indifferent whether that event occurred or not.

Carrara distinguishes the two by insisting that if the act was done without animo nocendi then there is negligence.

On the other hand, if the agent did the act animo nocendi, foreseeing at the same time a more serious harm, then the agent is liable not for negligence but for dolo because he had indeterminate wrongful intent (or positive indirect intent).59 One could criticise this theory of negligence based on foreseeability. All that is possible is foreseeable. The only events that are not foreseeable will never happen because they are not possible. Moreover, should a person be held criminally liable for an event he did not foresee simply because someone more intelligent could have foreseen it?

How can a person be obliged to foresee something and be punished for failing to do so when that something was never even contemplated by him as possible?

Of course, to this it can be retorted that the agent is punished precisely for failing to envisage a possible harm which another would have foreseen.

But then should he be punished for failing to foresee what another would have foreseen?

It is on account of these arguments that other authors favour what is known as the objective theory.

59 Carrara, op. cit., § 83, pg 122-123.

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13.2 The Objective Theory According to this theory, the basis of criminal liability for negligence does not consist in a state of mind or a subjective attitude but it consists in a mode of conduct or an objective fact.

Negligence is held to consist in a manner of conduct falling short of an objective standard of care, and the offence is complete when there is a causal connection between the act and the event prohibited by law.

According to this theory what the law punishes is not so much the failure to foresee what was foreseeable but the failure to conform in one’s conduct to an objective standard of care to which everyone should conform viz. the failure to comply with those norms of behaviour sanctioned by usage or expressly prescribed by authority with the purpose of preventing injurious events.60 The advocates of this theory reject the subjective theory based on foreseeability even when to this element is added the element of ‘preventability’, i.e. besides being foreseeable the harm must have been capable of being prevented by the agent, although the addition of this element adds an objective dimension to the subjective theory.61 Thus, for an event to be imputable on the basis of negligence it would have to be ‘possible, foreseeable and preventable’ (possibile, prevedibile e prevenibile).

The advocates of the objective theory, while considering the element of ‘preventability’ as a helpful addition still reject this view because they consider that the law can only require prevention of what was actually foreseen and not of what was simply foreseeable.

Nevertheless, it can be easily seen that in both theories there is a subjective element combined with an objective one.

60 Antolisei, op.cit. pg 327.

61 Manzini, op.cit. pg 692-693.

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While in the subjective theory the lack of foresight is supplemented by the element of foreseeability, the standard used to determine the foreseeability or otherwise of an event is essentially the objective standard of the diligence of the reasonably prudent man.

On the other hand, even in the objective theory we have a subjective element made to consist in the act, as distinct from the event, being the wilful (voluntary), efficient cause of the involuntary event prohibited by law.

But it is precisely because the voluntariness of the act is the minimum element for criminal liability in all criminal offences that the element of foreseeability becomes extremely helpful to distinguish one kind of criminal liability from another, and especially from accident.

An act which falls short from the objective standard of care to which everyone is expected to conform may yet be intentional (dolo) or negligent (culpa) or even accidental (casus).

It is foresight or otherwise, and foreseeability or otherwise, which help us to delineate dolo, culpa and casus one from the other.

Thus, the fact of not having foreseen delineates culpa from dolo and the fact that an event was unforeseeable delineates casus from culpa.62 Examples: A shoots at B foreseeing he will kill him --- dolo.

A shoots at B not foreseeing he will kill him --- no dolo but possible culpa.

A shoots at B not foreseeing he will kill him and B’s death is unforeseeable – no culpa but casus.63

62 Carrara, op.cit. § 84 pg124.

63 For casus see also Antolisei op.cit. § 137 pg 338.

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14. Culpa under our Criminal Code Having examined the main theories regarding culpa (negligence) we shall proceed to examine the system adopted under our Criminal Code.

Our Code does not always use the same words in laying down the conditions for offences of negligence. In the most important cases, however, criminal liability is incurred when there is: ‘Imprudence, carelessness, unskilfulness in (his) trade or profession or non-observance of regulations’ (Articles 225, 328CC).

The words used in the law are not defined but ‘imprudence’ generally implies an act while ‘carelessness’ or ‘negligence’ generally implies an omission.

‘Unskilfulness’, on the other hand, implies the exercise of a trade or of a profession by a person who is not part of that trade or profession, or the exercise of that trade or profession in a negligent or imprudent manner, or without the requisite expertise, by a member of that trade or profession.

Our Article 225 seems to imply that when it speaks of unskilfulness it is referring only to a member of the trade or profession. In fact, it speaks of ‘unskilfulness in his trade or profession’. However, the words used would seem to reasonably include a person not a member of the profession who in fact exercises that profession.

In any case, even if the words used do not include this scenario of a person not a member of the profession who exercises such profession, that person could still be held liable under the other heads of ‘imprudence and carelessness’ because a person who is aware that he does not pertain to that profession would certainly be imprudent and careless to exercise that profession.

In effect there does not seem to be any real need to distinguish between the three different hypotheses because the juridical basis underlying all

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three is the same viz. the failure to exercise due diligence.64 Does unskilfulness in a profession include the skilful taking of an unwarranted risk in the exercise of the profession?

A surgeon, knowing that he could operate in an ordinary manner, chooses to operate in a riskier manner thereby causing harm to the patient. Would he be guilty of unskilfulness in the exercise of his profession notwithstanding that he operated with great skill?

It appears reasonable to take the view that the taking of unnecessary risks is not the mark of a skilful exercise of a profession. Therefore, one could reasonably conclude this would also constitute an unskilful exercise of the profession because the skilful exercise of a profession involves not taking unwarranted risks.

In any case such hazardous conduct would again certainly amount to imprudence. ‘imprudence, negligence, carelessness’: Being a reference to the agent and as such considered subjective, it is generally held that foreseeability of the event is required. The said conditions are considered to be subjective states on account of which the agent is prevented from foreseeing what was foreseeable. On this we have already commented so we shall not belabour the points already made. ‘non observance of regulations’: When it comes to non-observance of regulations, however, the question is more problematic. Non-observance of regulations is an objective fact not a subjective state. There is either nonobservance or there is not.

The question arises whether ‘regulations’ refers only to rules laid down by the public authority or whether they extend to rules laid down by a private entity such as a company, a sports association or a private school.

Some Italian authors65 are very clear that the relevant provision of the Italian 64 Manzini op. cit. § 262 pg 697.

65 e.g. Manzini op.cit. pg 701, Antolisei op.cit. pg 323.

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penal code refers not only to rules laid down by the public authority but also to rules laid down by private entities. The relevant Italian legal provision, however, speaks of ‘laws, regulations, orders or disciplines’, which appears to be more comprehensive than our corresponding provision which limits itself to ‘regulations’. Nevertheless, the Court of Criminal Appeal in its inferior jurisdiction66 has held that: Bil-kliem “nuqqas ta’ tħaris ta’ regolamenti” (artikolu 225), illeġislatur mhux qed jirreferi biss għal-leġislazzjoni sussidjarja [...] iżda għal kull forma ta’ kondotta statutorjament stabbilita, u għalhekk qed jirreferi ukoll għal dawk ir-regolamenti ppromulgati minn enti privati (eż. ir-regolamenti mfassla minn sid ta’ fabbrika biex jipprevjeni ħsara għal kull min jaħdem jew jidħol f’dik ilfabbrika).

Much of the wording used in the judgement is clearly derived from Antolisei67 who was commenting on the more comprehensive language used in the Italian penal code. Whatever the case may be, however, a person who fails to comply with the disciplinary or regulatory rules laid down by a private entity which regulate the conduct of that person would reasonably be held to have acted imprudently, negligently or carelessly.

Is foreseeability required even in the case of non-observance of regulations? The classic case which delved into this issue is Il-Pulizija vs John Vella decided by the Court of Criminal Appeal per Mr. Justice W. Harding.68 The Court reviewed a number of classic definitions of ‘colpa criminale’ and noted how foreseeability was the core element, whichever definition is used. The Court also took note of how the element of foreseeability had been set aside by a number of modern authors but for the cogent reasons 66 Il-Pulizija vs Richard Grech, 21 March 1996 Vol. LXXX.iv Pt.2.176. Among many other recent judgements on the elements of culpa: Il-Pulizija vs Mark Piscopo, Court of Criminal Appeal (Inferior) 30 September 2016; Il-Pulizija vs Claus Peter Reisch, Court of Magistrates (Malta) as a Court of Criminal Judicature 7 January 2020; Il-Pulizija vs Alison Micallef, Court of Magistrates (Malta) as a Court of Criminal Judicature 30 January 2020; Il-Pulizija vs Mel Spiteri, Court of Magistrates (Malta) as a Court of Criminal Judicature 10 September 2020; Il-Pulizija vs Matthew Grech, Court of Magistrates (Malta) as a Court of Criminal Judicature 14 September 2020.

67 vide Antolisei op.cit. § 133 pg 326.

68 15 February 1958.

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given in the judgement, among them the fact that if one were to remove the criterion of foreseeability one would be removing the criterion which distinguishes culpa from casus.

The answer to the above question, therefore, would be in the affirmative because the event may still not be reasonably foreseeable as being a consequence of the non-observance of the particular regulations in question.

Thus, for criminal liability it seems reasonable to require that there should be not only a causal connection between the non-observance of the regulations and the event but also the event should have been foreseeable by the agent as a possible consequence of the non-observance of the regulation.

The objective view would be that the objective non-observance of regulations is enough to ground liability because the existence of the regulation itself is seen as sufficient evidence of foreseeability. The event is so foreseeable that in effect it was foreseen by the legislator who laid down the regulation.

This does not exclude, however, that the event foreseeable in the abstract by the law was not foreseeable in the concrete case so that an inquiry into the foreseeability of the event in the concrete case remains relevant.

If the event was not foreseeable as a possible consequence of the nonobservance of that particular regulation, then the agent would be criminally liable for not observing the regulation but would not be liable for negligently causing the event.

The law places ‘imprudence, carelessness, unskilfulness’ on the same level as ‘non-observance of regulations’ and treats them in the same way.

Thus, it would be wrong to hold that negligence is presumed in the case of ‘non-observance of regulations’ but not in the case of ‘imprudence, carelessness, unskilfulness’.

Negligence is not presumed in the case of ‘imprudence, carelessness, unskilfulness’ and therefore it cannot be held to be presumed in the case of 48

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‘non-observance of regulations’.

In all cases the link of cause and effect between the conduct and the event must be proved.

While the non-observance of regulations may give rise to liability for an offence of negligence this does not mean that the observance of regulations necessarily excludes liability for such an offence. Notwithstanding the fact that the agent may have entirely complied with regulations he may still be held liable if his conduct in the concrete case is ‘imprudent, careless or unskilful’.

14.1 Il-Pulizija vs Perit Louis Portelli The position under our law in respect of offences of negligence has been concisely stated in the judgement of the Court of Criminal Appeal dated 4 February 1961 in the case Il-Pulizija vs Perit Louis Portelli.69 The Court stated that the involuntary offence under Article 239 (now Article 225, discussing involuntary homicide) required the happening of a voluntary conduct which was negligent --- consisting generically in lack of care (nuqqas ta’ ħsieb jew imprudenza), negligence (traskuraġni jew negliġenza), or lack of skill (imperizja) in the exercise of an art or profession or consisting specifically in the lack of observance of regulations --- followed by an involuntary harmful event linked together by the link of causation. It then added that for the purpose of ascertaining fault for negligent conduct, the conduct effectively implemented had to be measured up with the conduct of a bonus pater familias i.e. that conduct which in the concrete case would have been adopted by a person of normal intelligence, diligence and sensibility. The Court pointed out that this criterion served as an objective guide to the judge while at the same time leaving him free to evaluate the diligence requisite in the concrete case.70 Quoting an English author, the Court held this to mean, in respect of the exercise of a profession, that ‘a man or a woman who practises a profession is bound to exercise the care and 69 XLV.iv.870.

70 ibid, pg 903.

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skill of an ordinary competent practitioner in that capacity’.

14.2 Degrees of Negligence The theory of culpa based on foreseeability led authors to a classification of degrees of negligence. Doctrine (and not the law, which did not distinguish between degrees of negligence) distinguished between culpa levissima (slight negligence), culpa levis (ordinary negligence) and culpa lata (gross negligence). There is gross negligence or culpa lata when it could have been foreseen by all persons, there is ordinary negligence (culpa levis) when the event could have been foreseen by the reasonably prudent person, and there is slight negligence (culpa levissima) where the event could have been foreseen only by the exercise of extraordinary care.71 Moreover, it was argued that culpa levissima was not punishable by the criminal law.72 Except as a criterion for the purpose of calibrating the punishment to be imposed, such a distinction is not legitimate for the purposes of the criminal law since the law itself does not make any distinction. For the purposes of the criminal law there either is negligence or there is not. The standard of care required is that of the reasonably prudent man. Therefore, that conduct which could be considered as culpa levissima, requiring the exercise of extraordinary care, would simply not be negligence for the purposes of the criminal law.

On the other hand, if the conduct amounts to gross negligence (culpa lata), where the event is foreseeable by all persons, this means that the event is certainly also foreseeable by the reasonably prudent man. Therefore, from the point of view of the criminal law the effect is that for the purpose of liability (as distinct from the purpose of punishment) there is no difference between culpa lata (gross negligence) and culpa levis (ordinary negligence) since in both instances the event is foreseeable by the reasonably prudent man.

71 Carrara op.cit. §88 pg 125-126; Maino op.cit. § 1621 pg 332.

72 ibid § 89 pg 128.

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If the conduct in question measures up to this standard, i.e. the standard of care expected from a reasonable man (and therefore includes the socalled culpa levissima, which implies the lack of exercise of extraordinary care), then that conduct for the purposes of criminal law is simply not negligent.

If the conduct in question does not measure up to this standard of care expected from a reasonable man (and therefore includes both gross (culpa lata) and ordinary negligence (culpa levis) then the conduct is negligent.

Of course, while for the purpose of liability there is only one standard, i.e. the care of the reasonably prudent man, for the purpose of punishment there is no doubt that one kind of conduct may be more negligent than the other depending on the circumstances, and it is reasonable that the more negligent conduct attracts a more severe punishment within the parameters laid down by law.

In other words, to establish whether there is negligence or not one standard of care, one measure, is adopted. But once negligence has been established using this standard of care or measure then there is no doubt that there are degrees as to the gravity of the negligence which may result.

Once the degree of care falls short of the standard of care required then there is negligence, but the degree of care may fall short of that standard only slightly but it may also fall short grossly and the extent of the deficiency may therefore be relevant for the purposes of punishment.

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14.3 Contributory Negligence The essential elements of liability for offences of negligence are, as we have seen, a voluntary conduct on the part of the agent, the lack of foresight of the harmful effect, and foreseeability of that effect.73 There must also be the link of cause and effect i.e. the link of causation between that conduct and the event.

When these elements concur, the agent is liable for negligence in those cases expressly contemplated by the law.

The fact that the victim himself or even third-parties may have contributed to the event does not exempt the agent from liability for his negligent conduct.74 If the victim was negligent then he pays for his negligence in his own person even though he may not be criminally liable because the damage or harm caused was caused to himself.

If a third-party contributed by his negligence to the event prohibited by law then he would be criminally liable together with the principal agent i.e. the agent and the third-party would both be liable for negligence, each for his own conduct.

Again, of course, the contributory negligence of the victim or of a thirdparty may, however, be relevant for the purposes of punishment, in that such contributory negligence may have a mitigating effect on the punishment to be awarded to the agent.

Moreover, the negligence of the victim or of a third-party may also assume special relevance when evidence of such negligence on the part of the victim or third-party is meant to show that the event was in effect exclusively caused by the negligence of the victim or of the third-party and that there was no negligence on the part of the person charged.

73 Il-Pulizija vs Mark Piscopo, Court of Criminal Appeal (Inferior) 30 September 2020.

74 Antolisei op.cit. §136 pg 336.

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Authors make various distinctions depending on whether the conduct of the victim was deliberate or not on his part, on whether the event would still have occurred independently of the conduct of the victim, i.e. it would still have occurred with or without the conduct of the victim, as well as on whether it was the conduct of the victim which gave rise to the process of causation which resulted in the event.75 The essential reason for these distinctions, however, appears to be to determine whether or not there existed the link of causation between the negligent conduct of the agent (since if the agent’s conduct was not negligent the problem does not arise) or whether in fact the efficient cause of the event was the conduct of the victim himself or of a third-party or some other cause.

As one example: a person intending to commit suicide throws himself on a railway line in the path of a passing train. The train hits him but only happens to injure him but not kill him. It is argued that even if the traindriver was negligent so that he could have avoided causing harm to the victim, yet it was the voluntary act of the victim which gave rise to the process of causation that resulted in the harmful event and as such it was the victim’s act which was the efficient cause of the event. Without the act of the victim of voluntarily throwing himself in the path of the train, the event would probably not have occurred. In such circumstances the train-driver could be held liable for having infringed some regulation but not for causing involuntary harm to the victim.

The position is reversed where it is the negligent act of the agent which gave rise to the process of causation to which was added the negligent act of the victim. The agent was still a cause of the event and is liable.

75 See for example Manzini op.cit. § 265-270 pg 713-733.

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14.4 The Victim’s Consent Another question that arises is whether the victim’s consent can have any relevance on the question of liability and responsibility on the part of the agent for his negligent conduct.

We have already seen that criminal liability (i.e. where we have the necessary conditions for criminal liability) gives rise to criminal responsibility which is the relationship created between the agent and the State (not the individual victim) as a consequence of the agent’s liability for the fact.

Thus, the victim’s consent is irrelevant for the purpose of liability (the conditions for which are determined by the law and which we have already examined) as well as for the purpose of criminal responsibility since this is a relationship that arises between the agent and the State and in which the victim’s consent is irrelevant.

The victim’s consent can only assume juridical relevance where the prosecution of the offence is made dependent by the State on the consent of the victim.

If the conditions for the liability of the agent exist then the consent of the victim amounts merely to co-operation on the part of the victim in the offence of negligence for which the agent is liable.

Nowhere does the law expressly or impliedly require that it is an essential condition for liability for an offence of negligence that the negligent conduct of the agent should have taken place against the victim’s will.

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Vicarious Liability and Corporate Criminal Liability Dr Joe Giglio

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The issue as the whether the subject person of a criminal offence could also refer to a body corporate was finally addressed in 1975.

To this effect, the Interpretation Act1, which was clearly modelled on the UK Interpretation Act of 1889, introduced the notion that an offence could also be committed by a body or other association of persons, be it corporate or unincorporate. In such instances, Article 13 laid down that the subjectum criminis of the proceedings would be those persons who, at the time of the commission of the offence, were a director, manager, secretary or other similar officer of such body or association, or were purporting to act in any such capacity.

In order for such a person not to be found guilty of that offence, he would have to prove that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence.

Vicarious liability will be dealt with separately in these Notes. It is sufficient, for the purposes of this Chapter, for one to understand that the idea that an offence could be committed by a body of persons, however that body is established, was given formal recognition by means of the promulgation of the Interpretation Act.

Corporate Criminal Liability A further development in the area of who could be the subject of a criminal offence and consequently penalised occurred by Act III of 2002 which introduced the concept referred to as corporate criminal liability, thereby taking the idea of subjectum criminis a step further.

It is firstly pertinent to premise why this notion was introduced in our laws. The reason was that Malta had become a signatory to various Conventions which encompassed such an idea. Examples of these include the UN Convention against Corruption and The Palermo Convention against 1 Chapter 249 of the Laws of Malta

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Transnational Organised Crime. Similarly, Malta joined the European Union in 2004, and various EU framework decisions imposed upon the member states the need to introduce those measures which may be necessary in addressing the liability of legal persons.

To this effect, Act III of 2002 introduced Article 121D and Article 248E(4) in our Criminal Code.

Article 121D expressly provides: Where the person found guilty of an offence under this title is the director, manager, secretary or other principle officer of a body corporate or is a person having a power of representation of such a body or having authority to exercise control within that body and the offence of which that person was found guilty was committed for the benefit, in part or in whole, of that body corporate, the said person shall for the purposes of this title be deemed to be vested with the legal representation of the same body corporate which shall be liable to the payment of a fine (multa) of not less than one thousand and one hundred and sixtyfour euro and sixty-nine cents (€1,164.69) and not more than one million and one hundred and sixty-four thousand and six hundred and eighty-six euro and seventy cents (€1,164,686. 70).

The offences included under the Title to which Article 121D refers to, are entitled Crimes against the Administration of Justice and other Public Administrations, comprising, inter alia, the crimes of calumnious accusations, corruption and trading in influence.

The requirements for Article 121D to have effect are therefore the following: 1.) An offence under Title III is committed and the person charged is found guilty.

2.) The person so found guilty is a director, manager, secretary or other principle officer of a body corporate or is a person having power of representation of such a body or having authority to 57

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exercise control within that body.

3.) The offence of which the person was found guilty was committed for the benefit, in part or in whole, of the body corporate.

In such scenarios the person so found guilty shall for all intents and purposes be deemed to be vested with the legal representation of the same body corporate. The consequences of such a finding of guilt would be the imposition of pecuniary penalty on the body corporate itself.

Together with Article 121D, the 2002 amendments introduced Article 248E(4). This subsection provides: Where the person found guilty of any of the offences under this sub-title - (a) was at the time of the commission of the offence an employee or otherwise in the service of a body corporate, and (b) the commission of the offence was for the benefit, in part or in whole, of that body corporate, and (c) the commission of the offence was rendered possible because of the lack of supervision or control by a person referred to in Article 121D, the person found guilty as aforesaid shall be deemed to be vested with the legal representation of the same body corporate which shall be liable to the payment of a fine (mu/ta) of not less than ten thousand euro (€10,000) and not exceeding two million euro (€2,000,000).

The offences included in this sub-title are the Trafficking of Persons. In order for this subsection to come into effect it would therefore be necessary that the following requirements are satisfied; 1.) A person is charged and found guilty of one or more of the offences listed in sub-Title VIII Bis, or Title VIII of the Laws of Malta.

2.) The person so found guilty was at the time of the commission of the offence an employee or otherwise in the service of a body corporate.

3.) The commission of the offence was for the benefit, in whole or in part, of that body corporate.

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4.) The commission of the offence was rendered possible because of the lack of supervision or control by one of the persons mentioned in Section 121D. It is opined that this provision has significantly stretched the concept of corporate criminal liability. Indeed, strangely, a sanction can here be imposed upon a body corporate when none of its directors or managers are a party to the proceedings.

In other words, a body corporate could have imposed upon it the hefty pecuniary penalties established in terms of this sub-section without it even having any form of standing or representation in such criminal proceedings.

The complexity of this issue is enhanced further when one considers that the fines can range from ten thousand euro (€10,000) to ten million euro (€10,000,000). It is strange that Article 248E(4) lays down that the employer so found guilty shall be deemed to be the person vested with the legal representation of the body corporate, yet at the same time, it seems to imply that the pecuniary penalty meted out is in actual fact payable by the body corporate. As at the time of writing it remains to be seen how our Courts will implement this provision or whether its Constitutional validity will ever be challenged.

A further development in the concept of corporate criminal liability occurred in 2013, when subsection 4A was introduced to Article 248E of the Criminal Code. This subsection attributes further sanctions which may be inflicted upon a body corporate provided, firstly, that the body corporate benefitted from the offence and indeed it was committed for its own benefit, in whole or in part. Secondly, the offender was a person who had the power of representation of the body corporate, or the authority to take decisions or exercised control over that body corporate at the time of the commission of the offence.

In such an eventuality the legal entity may be subject to a list of sanctions laid down by the law itself. These sanctions are the following, under Article 248E(4A):

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Exclusion from entitlement to public benefits or aid; 1. The suspension or cancellation of any licence, permit or other authority to engage in any trade, business or other commercial activity; 2. Placing under judicial supervision; 3. The compulsory winding up of the body corporate; or 4. The temporary or permanent closure of any establishment which may have been used for the commission of the offence.

Various legislative enactments extended the applicability of Articles 121D and 248E(4) to other offences. Similarly drug related offences as well as the offence of Money Laundering have also been the subject matter of amendments whereby corporate criminal liability was extended to apply in these cases also.

Consequently, one of the first pre-requisites for corporate criminal liability to arise today, is that an offence is committed to which, by an express provision of the law, Article 121D and/or 248E are rendered applicable.

Indeed, when the concept of corporate criminal liability was being discussed in Parliament, Minister Tonio Borg who was the then Minister for Justice piloting the Bill explained the need to be cautious and careful. In fact, he remarked: Nibda biex ngħid Ii hawnhekk, irridu nimxu b’ċerta kawtela.

Trid toqgħod attent Ii mhux mal­-ħażin, jeħel it-tajjeb. Meta qed tilleġisla dwar dawn l-affarijiet, trid toqgħod attent, għax biżżejjed għandna I-liability Ii ġejja minn persuni fiżiċi. Fuq ilpersuni legali, trid toqgħod attent, għax din hija l-eccezzjoni, u mhux ir-regola fil-kamp penali.

A final legislative development to corporate criminal liability was introduced by Act VII of 2015. In order to evaluate this development, it is 60

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necessary that one understands how corporate criminal liability was originally introduced. In fact, we have seen that upon a reading of Article 121D as it stood prior to the 2015 amendments, a pre-requisite for the criminal sanctions being imposed on a legal person was that an offence was committed by a natural person. We have also seen that the natural person so found guilty of one of the various offences to which corporate criminal liability applies either occupied one of the positions mentioned in Section 121D or, alternatively, was the controlling/directing mind of that legal entity. In other words, the legislator opted for what may be termed as the identification liability model. Moreover, it is also necessary that the offence so committed by that person was committed for the benefit of the legal entity.

Various Assessment Reports carried out by the Council of Europe have questioned this approach, particularly in so far as Money Laundering offences are concerned. This seems to be the reason why the 2015 amendments were introduced. These amendments in fact deleted the phrase ‘where the person found guilty of an offence’. Today in fact, Article 121D reads: Where an offence under this title has been committed by a person who at the time of the said offence is the director, manager, secretary or other principal officer of a body corporate or is a person having a power of representation of such a body or having an authority to take decisions on behalf of that body or having authority to exercise control within that body and the said offence was committed for the benefit, in part or in whole, of that body corporate, the said person shall for the purposes of this title be deemed to be vested with the legal representation of the same body corporate which shall be liable to the payment of a fine (mu/ta) of not less than twenty thousand euro (€20,000) and not more than two million euro (€2,000,000), which fine may be recovered as a civil debt and the sentence of the Court shall constitute an executive title for all intents and purposes of the Code of Organisation and Civil Procedure: Provided that where legal representation no longer vests in the said person, for purposes of this article, legal representation shall vest in the person occupying the office in his stead or in such 61

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person as is referred to in this article .”

A reading of Article 121D as it stands today would seem to lead us to the conclusion that the legislator has not departed from the identification liability model. In other words, it is still necessary in order for Article 121D to become applicable that a natural person is found to be criminally liable to one of the offences to which this Section applies.

Furthermore, such natural person must occupy one of the positions mentioned in the law. The relevance of the amendments resulting in Article 121D to read as it reads today lie in the fact that not only has the pecuniary penalty been increased but such a fine is recoverable as a civil debt and the judgement of the Court of Criminal jurisdiction shall constitute an executive title. Moreover, where legal representation no longer vests in the natural person so convicted, then the proviso to Article 121D stipulates that the person who is currently occupying the position the convicted person previously held is considered to be vested with the legal representation of the body corporate.

Alternatively, the Court of Criminal Jurisdiction can opt to consider any other person mentioned in Article 121D as being vested with legal representation of the body corporate. The scenario this proviso is trying to cover is a situation where the natural person who is found guilty of an offence no longer occupies such a position or, possibly, the role he previously held no longer exists within the body corporate. In so far as the requirement of benefit is concerned this has remained unchanged.

As has been since the fine imposed is recoverable as a civil debt which is therefore owed by the body corporate to the State. This is an exception to criminal law rules relating to the imposition of fines. In fact, save some exceptions, when a fine is imposed on a physical person and it is not paid, it is converted into imprisonment at the rate of 1-day imprisonment for every thirty-five euro (€35) due. However, since a body corporate cannot be imprisoned, the fine is recoverable as a civil debt.

In the case Police vs Daniela Debattista, decided by the Court of Criminal Appeal on the 16th November 2016, Judge Edwina Grima explained that the issue of punishment is a distinguishing feature between corporate criminal 62

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liability and vicarious liability. This is because in the case of vicarious liability the punishment is imposed upon a physical person.

On the other hand, in the case of corporate liability, although responsibility must also stem from the acts of a physical person, the punishment is ultimately inflicted on the company itself.

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The Crime of Conspiracy Madame Justice Consuelo Scerri Herrera

Originally published on Id-Dritt XXI, re-edited and re-published with the author’s permission.

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1. Introduction At first glance it appears that the crime of conspiracy was introduced into the Maltese Criminal Legal System, together with the crime of Participation in Organised Criminal Groups, by Act III of 2002. This however is a misconception. It must be pointed out from the very start of this article, that while the crime of Participation in Organised Criminal Groups was completely alien to the Maltese legal system until a few years ago, the crime of conspiracy was already in existence, though truly with limited application.

It must be pointed out that prior to the year 2002 a person could only be arraigned in Court accused of conspiracy if such conspiracy was directed to an offence against the safety of the Government, as witnessed in Article 58 of the Criminal Code.

It is to be noted that the notion of conspiracy already existed in the Maltese Special Offences Legislations, such as the Dangerous Drug Ordinance,1 the Medical Kindred Profession Ordinance2 and the former Exchange Control Act.3 In fact, in the case delivered by the Court of Appeal in the names IlPulizija vs Ronald Agius4 it was held that:Ir-reat msejjaħ bħala “associazione a delinquere” fil-liġi Taljana huwa kompletament differenti mir-reat ta’ tentattiv ta’, jew ta’ kompliċità fi, reati ta’ kuntrabbandu. Fil-liġi tagħna, għallanqas sal-lum, għadha ma teżistix il-figura ta’ “conspiracy” jew “assoċjazzjoni” biex wieħed jikkommetti reati in ġenerali. Il-figura ta’ “conspiracy” jew “assoċjazzjoni” fil-liġi tagħna hija limitata għal ċerti reati speċifiċi, bħalma huma r-reati ta’ attentat kontra l-President ta’ Malta (Art. 55, Kap. 9), insurrezzjoni jew kolp ta’ stat (Art. 56), li wieħed jiftiehem biex jgħolli jew ibaxxi l- prezz ta’ oġġett jew il-pagi tax-xogħol bi ksur tal- Artikolu 338(t) tal-Kodiċi 1 Chapter 101 of the Laws of Malta, Article 22.

2 Chapter 31 of the Laws of Malta, Article 22.

3 Chapter 233 of the Laws of Malta, Article 39 of the former Act. Today this Act has been amended and is now known as The External Transactions Act. Article 39 has been repealed.

4 109/2001, Il-Pulizija vs Ronald Agius, Court of Criminal Appeal (Inferior) 7 December 2001

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Kriminali, ir-reat ta’ bejgħ jew traffikar fi drogi (Art. 22(1)(f) talKap. 101 u Art. 120A(f) tal-Kap. 31), u reati li għandhom x’jaqsmu mal- kontroll fuq il-kambju (Art. 39, Kap. 233). Ċertament la jeżisti r-reat ġenerali ta’ “conspiracy”, ċioé r-reat ta’ assoċjazzjoni bilgħan li jiġi kommess xi reat jew reati, huma liema huma, u anqas jidher li jeżisti fil-liġi tagħna r-reat ta’ “conspiracy” għal finijiet ta’ kuntrabbandu.

In another decision given by the Criminal Court of Appeal in the names of Il-Pulizija vs Raymond Anthony Bartolo5 it was also held that:– Ma hemm ebda dubju li sal-lum, fis-sistema legali Maltija, kuntrarjament għal dik Taljana, ma teżistix il- figura tar-reat komunement imsejjaħ “conspiracy”, ċioé r-reat ta’ assoċjazzjoni sabiex tiġi kommessa attività kriminali, bl-eċċezzjoni ta’ xi liġijiet partikolari fejn jiddisponu speċifikatament li tali assoċjazzjoni, fiha nnifisha, tikkostitwixxi reat, bħal ma tiddisponi, per eżempju, l-Ordinanza Dwar il-Mediċini Perikolużi (Kap. 101 tal-Liġijiet ta’ Malta).

B’mod ġenerali, normalment, l-elementi rikjesti sabiex jissussisti dan ir-reat ta’ “conspiracy”, partikolarment f’dawk issistemi legali fejn dan huwa reat “ut sic”: (1) irid ikun hemm xi forma ta’ ftehim milħuq bejn tnejn/tlieta min-nies jew aktar (2) bl-intenzjoni speċifika li jagħmlu attivita’ kriminali.

Il-fatti sostanzjali li jirreferi għalihom l-Artikolu 8(1)(b)(2) talKap. 276 iridu jkunu fatti li b’xi mod jirreferu jew jagħtu lok għarrekwiżiti essenzjali għar- reat komplut u maturat tal-“associazione a delinquere”, jew simili. Din, fil-fehma tal-Qorti, hi l-interpretazzjoni korretta ta’ l-Artikolu 8 (1)(b)(2) tal-Kap. 276, u mhux li r-reat ta’ “associazione a delinquere” f’dan il-każ in eżami jiġi reż reat ta’ estradizzjoni l-għaliex il-fatti allegati huma sostanzjalment fatti li jagħtu lok għal reat simili f’Malta.

Lanqas ma hu korrett li jingħad li jekk jissussistu l-elementi tat-tentattiv jew tal-kompliċità b’riferenza għar-reat sostantiv li 5 Il-Pulizija vs Raymond Bartolo, Court of Criminal Appeal (Inferior) 25 September 2001

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dwaru tkun allegata l-’associazione a delinquere’, allura r-reat sottostanti għal dan ir-reat jiġi reat estradibbli. Ma jistax ikun hemm it-tentattiv jew il-kompliċità f’reat meta dan ir-reat mhux reat f’Malta.

The Maltese Criminal Code provides no definition at all to the offence of conspiracy, in spite of the introduction of such a crime, though Smith & Hogan define this crime as ‘an agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means’.6 The word ‘unlawful’ was used in a broad sense and included all crimes triable in England, even those summarily. It also included torts, fraud, the corruption of public morals and the outraging of public decency. In this regard it went far beyond the other inchoate offences of incitement and attempt, where the result incited or attempted must be a crime.7 In this crime, the material element known as the actus reus is the agreement which is not simply a mental operation but involves spoken or written words or overt acts. However, in a landmark decision given locally in the names Repubblika ta’ Malta vs Steven John Caddick et, to be discussed later in this article, clear direction was given by the judge to the jurors as to the definition of this crime according to Maltese law.

It appears that there are four constituent elements to the offence of conspiracy:

1.1 The act of agreement In English law, an act of agreement must be coupled with the positive desire or determination to complete the offence. Smith & Hogan state that there must be the intention to play some part in carrying out the agreement.

In England, the words ‘the agreement’ clearly mean the agreement, that is, ‘a course of conduct’ shall be pursued. We are thus asked to imagine the contemplated course of conduct as having been followed and then 6 By Lord Denman in Jones (1832) 4B & Ad 345, 249. But a few years later in Peck (1939) 9Ad & El 686, 690 he declared, ‘I do not think the antithesis very correct’.

7 Smith and Hogan, Criminal Law (4th edn, Butterworths, 1978) 216

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subsequently ask, would it, when completed, necessarily amount to or involve the commission of an offence?

However, the Maltese Code presents a different picture to the English notion of agreement. The Criminal Code provides that conspiracy ‘[subsists] from the moment in which any mode of action whatsoever is planned or agreed upon between such persons’.8 Thus, under Maltese law it is a sine qua non condition that there should be, not only an acceptance (an agreement of interest and intent) but there must also be an agreement on the mode of action to follow in the execution of the intention.

The phrase ‘any mode of action whatsoever’ should not be understood in that any agreement would suffice. Rather it implies that the mode of acting should have been definitively concluded such that the parties would be in a position to proceed to action without further need of any further deliberation.9 In the case Rex v Aspinall (1876), decided in the UK, it was held that the ‘crime of conspiracy is completely committed at the moment two or more persons have agreed that they will, at once or at some stage in the future do certain things’.

Thus, contrary to Maltese law, in UK law the agreement to commit an offence completes the offence of conspiracy. In Malta, it is important that the means to be employed for carrying out the criminal enterprise is already contemplated.

1.2 The wrongdoers agreeing Under the Maltese legal system there have to be two or more persons who agreed on the same thing. One person alone cannot be found guilty of conspiracy. The Criminal Code provides the exact parameters of the Maltese Offence of Conspiracy in that ‘whosoever in Malta conspires with one or more persons, in Malta or outside Malta for the purpose of committing any crime in Malta … shall be guilty of the offence of conspiracy to commit 8 Chapter 9 of the Laws of Malta, Article 48A (2) 9 S Roberti, Corso Completo di Diritto Penale, (Vol. IV) [143, 156] and G. Falzon, Annotazioni alle leggi Criminali per l’isola di Malta e le sue Dipendenze da Seguire da Guida al Giurato (Anglo-Maltese Printing Press, 1872) 49

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that offence’.10 It is to be noted that Conspiracy is being attached to crimes in general, provided they are ‘liable to the punishment of imprisonment’.

Despite this general applicability, the prosecution is accusing wrongdoers with this crime particularly in relation to organised crimes such as money laundering and drug trafficking. There may also be court proceedings going on in different countries at the same time. This crime can thus give rise to people taking part in the same offence and yet not know each other as conspirators. In fact this is the case in the ongoing compilation of evidence being held at the moment regarding drug trafficking, importation of drugs and conspiracy that is being heard against nineteen accused persons in the names Pulizija vs Mario Camilleri et, where one of the accused, namely Romeo Bone, is facing charges both locally and in Italy.

It is interesting to note on a different footing that in the Carmelo Borg Pisani case (1940s), Borg Pisani was found guilty of conspiracy to overthrow the Government, even though he did not know the other conspirators. He was the last person to be executed.

It is also possible that the agreement agreed upon is forwarded through a third party, provided that they are all working under one common action, leader or goal.

In the judgment in the names Ir-Repubblika vs Godfrey Ellul, the Court held that: Din il-Qorti eżaminat bir-reqqa t-tieni stqarrija ta’ Philip Magri u x-xhieda li ta waqt il-ġuri u tistqarr li minnhom ma jirriżultax li ġew “ikkumbinati jew miftehma mezzi” li bihom l-appellant u Magri kellhom jimxu sabiex ibiegħu jew jittraffikaw mediċina perikoluża.11 We find in Archbold: The essence of conspiracy is the agreement. When two or more agree to carry out their criminal intent, the very plot is a criminal act itself12 … Nothing need be done in pursuit of the 10 Chapter 9 of the Laws of Malta, Article 48A (1) 11 13/1992, Ir-Repubblika vs Godfrey Ellul, Court of Criminal Appeal (Superior) 17 March 2005 12 Mulcahy v R (1868) LR 3 HL 306 at 317; T v Warburton (1870) LR 1 CCR 274; R v Tibbits and Windust (1902) 1 KB 77 at 89; R v Meyrick and Ribuffi 21 Cr.App. R 94 CCA.

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agreement13 … The agreement may be proved in the usual way or by proving circumstances from which the jury may presume it14 … Proof of the existence of a conspiracy is generally a “matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them”,15 cited with approval in Mulcahy v R.16

1.3 The purpose agreed upon This element is specifically dealt with in the Criminal Code. It provides that ‘whosoever in Malta conspires with one or more persons, in Malta or outside Malta, for the purposes of committing a crime in Malta’.17 Thus it is important that the persons so agreeing agree to commit a crime in Malta. Thus it appears that the liability for conspiracy is tied to an in-built jurisdiction mechanism. The Maltese Courts can only exercise jurisdiction provided that the offence of conspiracy takes place in Malta and the agreement relates to the commission of the crime in Malta. The crime of conspiracy is committed the moment an agreement is made; this means that there is no such thing as ‘withdrawal from conspiracy but if an accused person signalled his disassociation from the conspiracy, this could serve to relieve him part of the guilt for the subsequent commission of the completed offence.’

13 O’Connell v R (1844) 5 St.Tr.(N.S.) 1.

14 R v Parsons (1763) 1 W.Bl. 392; R v Murphy (1837) 8 C&P 297.

15 R v Brisac (1803) 4 East 164 at 171.

16 Mulcahy v R (n 12).

17 Chapter 9 of the Laws of Malta, subarticle (1) of Article 48A.

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1.4 The formal element – the mens rea There must be an agreement as to how to carry out the offence. These are not preparatory acts at all, but an agreement on a mode of action as defined in the law itself. It is not the commencement of the execution, like in the case of an attempt as contemplated in the Criminal Code.18 In other words it is imperative for the Prosecution to prove that Cassius and Brutus agreed and intended to commit an act, that they agreed on the way to proceed with that offence, and that the offence is in violation of a particular law. In other words it is imperative that both parties have the mens rea, otherwise there is no conspiracy. The agreement is the actus reus of the offence of conspiracy.

In the above-mentioned recent case decided by the Criminal Court of Appeal in the names Repubblika ta’ Malta vs Steven John Caddick et,19 the Court outlined the difference between Conspiracy and Attempt under the Drug Ordinance. It held that: under our Law the substantive crime of conspiracy to deal in a dangerous drug exists and is completed from the moment in which any mode of action whatsoever is planned or agreed upon between two or more persons. Mere intention is not enough. It is necessary that the persons taking part in the conspiracy should have devised and agreed upon the means, whatever they are, for acting, and it is not required that they or any of them should have gone on to commit any further actstowards carrying out the common design.

If instead of mere agreement to deal, and agreement as to the mode of action, there is a commencement of the execution of the crime intended, or such crime has been accomplished, the person concerned may be charged both with conspiracy and the attempted or consummated offence of dealing, with the conspirators becoming co-principals or accomplices. Even so, however, evidence of dealing is not necessarily going to show that there was (previously) a conspiracy, and this for a very simple 18 Chapter 9 of the Laws of Malta, Article 41.

19 15/2001, Repubblika ta’ Malta vs Steve John Caddick et, Court of Criminal Appeal (Superior) 6 March 2003

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reason namely that two or more persons may contemporaneously decide to deal in drugs without there being between them any previous agreement.

The First Court correctly stated that the three elements that had to be proved for the crime of conspiracy to result were: (i) The agreement between two or more persons, (ii) the intention to deal in drugs, and (iii) the agreed plan of action. It is irrelevant whether that agreement was ever put into practice. 20 This is unlike the English position.

From a preliminary examination of Article 48A, it appears that the concept of conspiracy has general applicability provided that the crimes are ‘liable to the punishment of imprisonment’. This contrasts severely to the United Nations Convention against Transnational Organised Crime and to the EU’s Joint Action criminalising participation, where the offence of conspiracy only extends to serious crimes subject to a minimum term of imprisonment of four years.

Reference is here being given to another judgment given by the Criminal Court of Appeal in the names Ir- Repubblika ta’ Malta vs Omissis, Rida Salem Suleiman Shoaib, Omissis21 , wherein it was stated that the appellant was correct in stating that the crime of association does not exist in this case.

It was held in this judgment that the jurors were misled, not by the presiding judge, but by the arguments put forward by the prosecution, in that if the jurors were to find the accused guilty of possession in these mysterious circumstances, then the accused should be found guilty of the crime of association. The learned judge expressed himself in the following manner: U qalilkom il-prosekutur, isma’, jien hawnhekk m’għandix għalfejn inġib kopja tal-kuntratt, għax dawn l-affarijiet ma jsirux bil-kuntratt, dawn hawn isiru by word of mouth, u bl-akbar segretezza u dan ukoll. U li inthom tridu tippreżumu dan il-ftehim miċ-ċirkostanzi.

20 Chapter 101 of the Laws of Malta, Article 22 (1A).

21 14/2003, Ir-Repubblika ta’ Malta vs Omissis, Rida Salem Suleiman Shoaib, Omissis, Court of Criminal Appeal (Superior) 15 January 2009

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U qalilkom, mela issa ara x’tagħmlu, araw issibuhomx ħatja taħt it-tieni kap, jiġifieri ta’ dak il-pussess ta’ dawk l-affarijiet dawk is-sapuniet kollha, u jekk issibhom ħatja taħt it-tieni kap allura bilfors kienu ftehmu dawn.

Għax jekk it-tnejn kienu jafu b’dawk l-affarijiet li kienu tagħhom, qed jargumenta [il-prosekutur], mela allura bilfors li kienu ftehmu dawn [għax] l-affarijiet ma jaqgħux mis-sema, ma jiġux dsatax-il sapuna jiswew taħt l-għaxart elef lira, jillandjaw hemmhekk … Imma dan kollu jrid jippruvah, u mhux b’dan il-mod, mhux jgħidlek, ara kif ser issibu ħati fit-tieni kap, u jekk issibu ħati fit-tieni kap, il-loġika hekk tgħidlek. [Imma] hawnhekk kultant ma nimxux bil-loġika; hawnhekk għandna li kull kap tal-att tal-akkuża jrid jirriżulta on its own two feet. U mhux issib ħtija tal-one għax sibt ħtija tat-two, mhux dak il-metodu.

In this case the Judge insisted in no unclear terms that independently from the guilt of each co-accused regarding the crime of possession of drugs, the jurors had to see if there was evidence of any agreement. Ex admisses he states: ‘u ftehim li jkun għall-anqas wasal għaliex ikunu “kkumbinati jew miftehma l-mezzi … li bihom dawk il- persuni għandhom jimxu”’. This after all is the basis to the crime of association. He insisted to the jurors that: Tridu tagħmlu d-domanda għal kull wieħed minnhom. Għandi l-prova li dan kien involut f’xi ftehim ma’ xi ħaddieħor? Għandi l-prova li t-tieni wieħed kien involut f’xi ftehim ma’ xi ħaddieħor?

Hu min hu dak ix-xi ħadd ieħor. Jista’ jkun ko-akkużat u jista’ jkun barrani, jiġifieri estranju għal dawn il-proċeduri. Ikun perikoluż, ikun hażin u ma tistgħux tagħmluh illi ssibu ħtija tal-ewwel kap biss jekk – għall-grazzja tal-argument qed ngħid biss għalissa – issibu ħtija tat-tieni kap kif inhu.

Ma tistgħux tużaw dak il-kriterju biex issibu ħtija tal-ewwel kap, jekk tkunu sibtu ħtija tat-tieni kap. Tridu żżommuhom separati u distinti, u kull kap has to stand on its own two feet. Ma jistax jissellef il-provi minn xi kap ieħor. Għal-lanqas dik hi d-direttiva li qed intikom, biex dan il-każ jekk is-sottomisjoni tal-prosekuzzjoni, tappella kemm tappella għalik, u tagħmel sens mil- laboratorju loġiku kemm tista’ tagħmel sens, illi ma nużawx dak il-kriterju

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hawnhekk f’din l-Awla. Ma tistgħux issibu ħtija fuq l-ewwel kap għax tkunu sibtu biss ħtija fuq it-tieni kap.

Jekk għandkom mill-provi joħorġu xi ċirkustanzi, diretti jew indiretti, xi xhieda li jippruvaw li kien hemm dan it-tip ta’ ftehim, għal kull wieħed minnhom, separatament minn xulxin, biex tiġi ttraffikata d-droga, allura l-akkuża tkun tirriżulta.

Pero` jekk ma hemmx dawn il-provi, ma tistax tasal għall-ħtija tal-ewwel kap għax tkun sibt il-ħtija fit-tieni kap. U mhux qed ngħidilkom tridu ssibu ħtija fit-tieni kap, ta! Dan għall-grazzja talargument qed ngħidu, biex ma tifhmunix ħażin u xi ħadd joqgħod iniżżel li qed ngħid xi ħaġa li mhux suppost.

Another reference could be made to the judgment given by the Criminal Court of Appeal in the names Il-Pulizija vs John sive Jean Agius…omissis…:22 L-artikolu 22(1)(f) tal-Kap. 101 tal-Liġijiet ta’ Malta jipprovdi li kull min “jassoċja ruħu ma’ xi persuna jew persuni ohra f’Malta jew barra minn Malta sabiex ibiegħjew jittraffika mediċina f’Malta kontra d- disposizzjonijiet ta’ din l-Ordinanza, jew li jippromwovi, jikkostitwixxi, jorganizza jew jiffinanzja l-assoċjazzjoni, ikun ħati ta’ reat kontra din l-Ordinanza.” Skond l-Artikolu 22(1A) din l-assoċjazzjoni “teżisti malli jiġu kkumbinati jew miftehma l-mezzi, jkunu li jkunu, li bihom dawk il-persuni għandhom jimxu.”

It is interesting to note that the US system is very similar to that in the UK. The American counterpart to section 1(1) of the Criminal Law Act 1977 in the UK is Article 5.03 of the US Model Penal Code which defines conspiracy as an agreement with such other person or persons to engage in or to bring about a criminal offence entered into with the purpose of promoting or facilitating the accomplishment of a crime. However, in this system, the intentional aspect, the act of agreement, has to be accompanied by two different types of intent: ‘the basic type to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy.’23 Under the American system however the 22 69/2003, Il-Pulizija vs John sive Jean Agius, Court of Criminal Appeal (Inferior) 2 December 2009 23 United States v. United States Gypsum Co. (L.Ed 2d 854, 873) US 20 (1978)

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conclusion of the agreement per se will not suffice to attract liability. They require the commission of an overt act at least by one of the conspirators in furtherance of the agreement. Contrary to the British system, it appears from a look at American case law that it is necessary to have some form of active participation to classify a person as a conspirator. It is not enough to be present at the scene, and knowledge of and approval of the plans of others will not render that person a conspirator. 24 The system is rather different in Italy where Italian Criminal Law contemplates three specific association crimes: The common association crimes (associazzione per delinquere),25 the Mafia-type association (associazione di tipo maffioso),26 and drug trafficking association crime (associazione finalizzato al traffico di sostanze stupefacenti). 27 The common association crime arises when three persons get together with the aim of doing a particular crime, having an internal sophisticated organisation geared towards the fulfilment of such a criminal aim.

Thus it appears, from reading this article, that although this crime exists in a number of jurisdictions, it is relatively new in the Maltese legal system, although it certainly quickly found its applicability in the charges which the police are today formulating. Undoubtedly, this crime today is continuously being tested in Maltese Courts. Unfortunately, local case law is so far not that rich on the subject under review.

24 Cleaver v. United States (238 F 2d 766,771) US (1956) 25 Italian Penal Code, Article 416 26 ibid 27 ibid

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Extradition Dr Chris Soler

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1. Introduction I gladly accepted the invitation of Għaqda Studenti tal-Liġi to write a chapter in the edition of their publication. I have been asked to write about the topic of extradition. In my view the istitutio legis of extradition belongs to the realm of procedural law just as it belongs to that of substantive law, or probably more so. Yet, in order to ensure that my chapter fits like a glove with the substantive dimension of the legal considerations within this book, I shall limit my approach, as far as practicable, to substantive criminal law. This means that I shall not deal with the iter proceduralis which leads to the extradition of an individual. What I will do is to commence by unveiling some underlying principles, after which the corpus juris on extradition will be portrayed and analysed. The final observations will serve as a conclusion to my chapter.

2. Preliminary Observations and Definitional Dilemmas Extradition, of its own nature, is not a legal institute which belongs exclusively and solely to the domestic domain. It is intrinsically supranational because the transnational features it possesses are innate. It necessitates the involvement of more than one State. In fact it is defined as ‘the formal process whereby the requesting State asks the requested State to return an individual that is in the requested State in order to stand trial or to serve a custodial sentence imposed in the requesting State.’1 Extradition is ‘an uneasy marriage between law and politics’. 2 For many decades it was intrinsically a political process. Yet, with the advent and consolidation of human rights protection, a trend towards the judicialization of the process of extradition is noticeable.

Whereas the incorporation of the European Convention on Human Rights and Fundamental Freedoms, and its First Protocol, into Maltese law by 1 Edward Grange and Rebecca Niblock, Extradition Law: A Practitioner’s Guide, 2013, Legal Action Group, page 3.

2 Michael Plachta, The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare, European Journal of International Law, 2001, 12(1):125-140, at p. 128.

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means of Act XIV of 19873 granted the right to individual petition, this has been consolidated by virtue of the EU Charter of Fundamental Rights which ‘is also part of Maltese law in relation to EU law in terms of the European Union Act.’4 In the last fifteen years, the legal institute of extradition has experienced some important changes which originate predominantly from Malta’s accession to the European Union. To this extent, it would be appropriate to speak of a process of Europeanisation of criminal law, especially now that Malta is a participating Member State in terms of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office, also known as the EPPO Regulation.5 However, the penetration of European Union criminal law into the Maltese criminal justice system predates the coming into effect of the EPPO Regulation. I concur with Stefano Filletti who refers to the approximation of criminal laws applicable in EU Member States,6 rather than a harmonisation thereof. In support of the above assertion, Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)7 leaves considerable leeway for diverse interpretation of Member States especially in so far as the grounds for refusal are concerned. Just by way of example, even if one were to look at the ne bis in idem rule, whereas the most acceptable definition would be that the rule offers protection to persons from not being prosecuted twice for the same offence,

3 David Joseph Attard, The Maltese Legal System, Volume II: Constitutional and Human Rights Law, Part A, 2015, Malta University Press, page 129.

4 Kevin Aquilina, Constitutional Law in Malta, 2018, Wolters Kluwer, page 229.

5 For a comprehensive understanding of the EPPO Regulation, see Willem Geelhoes, Leendert H. Erkelens and Arjen W.H. Meij (eds.) Shifting Perspectives on the European Public Prosecutor’s Office, 2018, T.M.C. Asser Press and Springer.

6 Stefano Filletti, Towards a European Criminal Law System, 2017, Kite Group, pages 3-4.

7 For a detailed understanding of this legal instrument see Libor Klimek, European Arrest Warrant, 2015, Springer.

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Maltese law uses the term ‘fact’ rather than ‘offence’.8 To this extent, reference to an ‘offence’ under Article 10(2) of the Extradition Act, Chapter 276 of the Laws of Malta, hereinafter referred to as ‘the Extradition Act’, is peculiar. Some definitions refer to the same offence rather than the same fact or conduct. In other words, the rule refers to the same crime (offence)9 rather than the same fact (conduct) [being an act of commission or of omission]. This seems to be the prevailing position in State practice,10 especially in some continental law States. The consequences of this are very far-reaching.11 If ne bis in idem refers to the same offence, rather than the same conduct, it would be possible for an individual to be tried for a different offence (with a different criminal charge) arising from the same conduct. This seems to be the position which prevails in a few common law jurisdictions.12 Another trend, in a regional context, is the subsistence of mutual recognition which, as a principle, is recognised as a cornerstone of judicial cooperation in criminal matters in the European Union.13 This has ‘resulted in a decrease of grounds of refusal and a decrease of opportunities allowing 8 Stefano Filletti, Selected Case Studies: The Case Study of Malta (MT), in Ivan Sammut & Jelena Agranovska (eds.) Implementing and Enforcing EU Criminal Law: Theory and Practice, 2020, Eleven International Publishing, pages 277-299 at page 286.

9 According to the South African Constitutional Court, ‘the double jeopardy rule prevents anyone being tried twice for the same crime’ [The State vs Wouter Basson, 9 September 2005, Case CCT 30/03, para 252].

10 The French Supreme Court upheld that ‘the export of drugs to Canada, committed in France, constitutes an offence which is distinguishable from the import of the same drugs in Canada’{Cour de Cassation, Chambre Criminelle [Court of Cassation, Criminal Chamber], Edouard, 22 November 1973, 73-91840}, cited in Harmen van der Wilt, The European Arrest Warrant and the Principle Ne Bis In Idem, in Rob Blekxtoon and Wouter van Ballegooij (eds) Handbook on the European Arrest Warrant, T.M.C. Asser Press, 2005, pages 99-117, at p. 115, n. 59.

11 Dawn Sedman, Should the Prosecution of Ordinary Crimes in Domestic Jurisdictions Satisfy the Complementarity Principle? In Carsten Stahn and Larissa van den Herik (eds.) Future Perspectives on International Criminal Justice, 2010, T.M.C. Asser Press, pages 259-266.

12 USA District Court for the Eastern District of New York, Ancel Vincent Elcock, Petitioner v United States of America, Respondent, 26 January 2000, Civil Action No. CV-99-1757 (DGT), 80 F. Suppl.

2d 70 (E.D.N.Y. 2000); USA District Court for the Eastern District of New York, United States of America v Jose Franklin Jurado-Rodriguez and Edgar Alberto Garcia-Montilla, Defendants, No. CR 94-547, 907 F. Supp. 568 (1995).

13 Libor Klimek, Mutual Recognition of Judicial Decisions in European Criminal Law, 2017, Springer, page 55.

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an examination of the facts at the basis of the cases and a control of an initial decision at the basis of the request. In this regard, the abolition of the classical ground for refusal based on the political nature of the offence and the reduction of the double criminality requirement are particularly representative.’14 This is exacerbated by risks of re-extraditions which can be triggered by the proliferation of courts and tribunals and by the increased use of universal jurisdiction by States which champion the application and enforcement of international criminal law. Such further extraditions may lead to a situation which is commonly referred to as ‘chain extraditions’ or ‘chain deportations’.15 The decision to transfer is referred to as a ‘delivery order’ by Maltese law. The latter term is not defined by the Extradition Act, which first refers to the term in its Article 26B(1). This legal provision, which constitutes an interpretation clause, stipulates that the meaning of the term is that conveyed by sub-article 26E which, however, fails to define the term. In the absence of a definition under law, I would opine that a ‘delivery order’ should be construed to mean ‘an order by a competent court which authorises the physical transfer by a State of an individual who is wanted by the International Criminal Court’.

Although there are normative differences between extradition and surrender,16 their net effect is one and the same, being the transfer of an individual for the purposes of undergoing trial or for the purposes of serving a custodial sentence of imprisonment. Surrender of offenders to the International Criminal Court is dealt with under the Extradition Act.17 The fact that, in this context, the word ‘surrender’ is used, as opposed to ‘extradition’, speaks volumes. Here I must take issue with the title of Part VI of the 14 Anne Weyembergh, Transverse Report on Judicial Control in Cooperation in Criminal Matters: The Evolution from Traditional Judicial Cooperation to Mutual Recognition, in Katalin Ligeti (ed.)

Toward a Prosecutor for the European Union, Volume I: A Comparative Analysis, Modern Studies in European Law, Volume 34, 2013, Hart Publishing, page 965.

15 Kai Ambos, European Criminal Law, 2018, Cambridge University Press, page 431.

16 Pedro Caeiro, The relationship between European and international criminal law (and the absent (?) third), in Valsamis Mitsilegas, Maria Bergström, Theodore Konstadinides, Research Handbook on EU Criminal Law, Research Handbooks in European Law, 2016, Edward Elgar Publishing, page 600.

17 See Sections 26A-26U of the Extradition Act.

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Extradition Act. The title should read ‘Surrender to the International Criminal Court’ or ‘Surrender of Individuals to the International Criminal Court’, but not ‘Surrender of Offenders to the International Criminal Court’. Although the sub-title also deals with persons who have already been convicted by the International Criminal Court, the majority of cases involving surrender in terms of this title of the law shall most likely deal with persons alleged to have committed a crime subject to the jurisdiction of the International Criminal Court, namely those punishable under Section 54A-54I of the Criminal Code, Chapter 9 of the Laws of Malta, hereinafter referred to as ‘the Criminal Code’. The use of the term ‘offenders’ conflicts with the presumption of innocence such persons are entitled to enjoy under Article 39(5) of the Constitution of Malta and Article 6(2) of the first schedule of Chapter 319 of the Laws of Malta, the European Convention Act.

3. The Applicable Law on Extradition Extradition, although governed by the Extradition Act, is largely grounded upon treaty law. The Criminal Code only makes reference to the term extradition in four circumstances.18 Malta’s law regulating extradition defines the word ‘arrangement’ in relation to the return of fugitive criminals to or from any country, other than Malta, as ‘any treaty, convention, agreement or understanding for that purpose between Malta and such other country or which applies to both such countries or of which both such countries are a party’.

Maltese law establishes extradition arrangements with Commonwealth countries, designated foreign countries, and other specific arrangements with certain States. Extraditable offences in respect of designated Commonwealth countries are: i. those included within the Schedule to the Extradition Act19 18 See Articles 5(h), 328M(c), 402A and the proviso to Article 534A. 19 This schedule includes thirty-one (31) offences. These are not exactly the same offences which fall within the purview of the European Arrest Warrant procedure. One should hence not think that the thirty-one offences in the Schedule are those, with the exception of one, which fall

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irrespective of however they are described in the law of the requesting State, provided that they are punishable with a term of at least one year in the requesting State; and ii. those which constitute an offence, or the equivalent act or omission which is tantamount to such offence, in the requesting State, which act or omission would amount to an offence in contravention of Maltese law if it took place in Malta or, in the case of an extraterritorial offence, in corresponding circumstances outside Malta.

The enumerative method, also considered as the list approach, on the one hand, and the eliminative method, also referred to as the no-list approach, on the other hand, are the two methods used to determine which offences are extraditable. The former method specifies by name the offence for which extradition will be granted. In this way the enumerative method, which prevailed customarily in Commonwealth States, provides a long and exhaustive list of offences. The main challenge this system faces is the different dimension of criminal offences encompassed therein.

Some offences do not only vary by name (designation) but in so far as their constitutive elements are concerned. The Schedule, which makes reference to Article 5(1)(a) of the Extradition Act, contains a list of extraditable offences which are applicable only vis-à-vis designated Commonwealth States.

under the parameters of the list of thirty-two offences prevailing under the European Arrest Warrant procedure; namely, participation in a criminal organisation; terrorism; trafficking in human beings; sexual exploitation of children and child pornography; illicit trafficking in narcotic drugs and psychotropic substances; illicit trafficking in weapons, munitions and explosives; corruption; fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests; laundering of the proceeds of crime; counterfeiting currency, including of the euro; computer-related crime; environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; facilitation of unauthorised entry and residence; murder; grievous bodily injury; illicit trade in human organs and tissue; kidnapping; illegal restraint and hostage-taking; racism and xenophobia; organised or armed robbery; illicit trafficking in cultural goods, including antiques and works of art; swindling, racketeering and extortion; counterfeiting and piracy of products; forgery of administrative documents and trafficking therein; forgery of means of payment; illicit trafficking in hormonal substances and other growth promoters; illicit trafficking in nuclear or radioactive materials; trafficking in stolen vehicles; rape; arson; crimes within the jurisdiction of the International Criminal Court; unlawful seizure of aircraft/ships; and, sabotage.

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This method is very restrictive. 20 Whereas omissions in the list of offences can be filled by means of supplementary treaties, they prompted the development of the eliminative method in treaty law. Under such method, extraditable offences are simply defined with reference to their punishability according to the laws of the requesting and requested States by a minimum standard of severity. The provisions of the 1957 European Extradition Convention provide an example of the eliminative formula. 21 Here the major challenge arises by the failure of some domestic laws to proscribe a mandatory minimum penalty of imprisonment. 22 The conversion to the eliminative approach suggests that the number of extradition crimes is increased. 23 Hence, this method is more appropriate and much more efficient in the light of developments arising under international criminal law. 24 In the latter categorisation, marked as ‘ii’ here above, extraditable offences are defined simply by their punishment inflicted upon the would-be convict in the requested State or the requesting State. In such system, a minimum threshold is set and any offence whose punishment exceeds such minimum will be an extraditable offence. This method is preferred by continental law States and is applicable in Malta in respect of designated foreign States. This approach seems to allow for more flexibility since it does not rely on a fixed and exhaustive list of offences. Whereas the enumerative method takes into account the intrinsic nature of the criminal offence which is the object of the extradition request, the eliminative method focuses on the nature of the punishment. Our criminal law is a hybrid between the inquisitorial and 20 Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, International Studies in Human Rights, Volume 55, 1998, Martinus Nijhoff Publishers, page 85.

21 Ivan Anthony Shearer, Extradition in International Law, 1971, Manchester University Press, Oceana Publications Inc. pages 134-135.

22 Ivan Anthony Shearer, Extradition in International Law, 1971, Manchester University Press, Oceana Publications Inc. pages 134-136.

23 Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, International Studies in Human Rights, Volume 55, 1998, Martinus Nijhoff Publishers, page 85.

24 Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, International Studies in Human Rights, Volume 55, 1998, Martinus Nijhoff Publishers, page 86.

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adversarial systems of criminal justice.

The same may be said about our extradition law which may be deemed to be a sub-set of our corpus juris criminalis in so far as it adopts features of both methods. When designated Commonwealth States are concerned, the offence, irrespective of the name attributed to it in the requesting State, must be an offence which falls within the parameters of the Schedule and the punishment must not be less than a year of imprisonment. In connection with designated foreign States, in terms of Article 8(1)(a) of the Extradition Act, for an offence to be extraditable it must be an offence which does not fall below the minimum punishment of one year imprisonment in the requesting State, which must have ratified an agreement with the requested State, being Malta.

In connection with the prospective extradition of individuals to designated Commonwealth countries, the Extradition Act makes provision for the extradition to take place subject to ‘conditions, exceptions, adaptations or modifications as may be specified in the order.’25 This phrase is reproduced by the law in so far as the extradition of individuals to designated foreign countries is concerned. 26 This discretionary power is, indeed, very significant because it allows Malta to fulfil the conventional obligations which derive from a treaty whilst respecting the fundamental human rights of the extraditee. This provision is important since the most robust grounds for refusal of an extradition have a human rights law dimension.

The list of offences I refer to in the first category, marked as ‘i’ here above, are not to be confused with the scheduled offences listed under Schedule D of the Criminal Code. The latter offences are those which relate to bail in terms of Article 575A of the Criminal Code, not to extradition. Extraditable offences in respect of designated Commonwealth countries under Maltese law are the following offences: 1. Wilful homicide; 2. Involuntary homicide; 25 See Article 4(2).

26 See Article 7(2).

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3. An offence against the law relating to abortion; 4. Wilful grievous bodily harm; 5. Assault occasioning actual bodily harm; 6. Rape (carnal knowledge with violence); 7. Abduction; 8. Unlawful sexual intercourse with a female; 9. Violent indecent assault; 10. Procuring, or trafficking in, women or young persons for immoral purposes; 11. Bigamy; 12. Illegal arrest, detention or confinement, or dealing in slaves; 13. Unlawful removal of persons to a foreign country or confinement therein; 14. Kidnapping, abandoning or exposing a child; 15. Bribery; 16. Perjury or subornation of perjury or conspiring to defeat the course of justice; 17. Arson or fire-raising; 18. An offence concerning counterfeit currency; 19. An offence against the law relating to forgery; 20. Theft; 88

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21. Misappropriation, fraud relating to insurance, barratry, fraudulent breach of trust in respect of papers signed in blank or otherwise, commercial or industrial fraud, obtaining money or property by false pretences, other cases of fraudulent gain; 22. Receiving stolen property or property which was misapplied or obtained by means of any offence, or knowingly taking part in the sale or disposal thereof; 23. Embezzlement; 24. Blackmail, private violence, unlawful exaction, extortion; 25. An offence against bankruptcy law or company law; 26. Malicious or wilful damage to property; 27. Acts done with the intention of endangering vehicles, vessels or aircraft; 28. An offence against the law relating to dangerous drugs or narcotics; 29. Piracy; 30. Revolt against the authority of the master of a ship or the commander of an aircraft; and, 31. An offence against the law relating to computer misuse.

The above approach shows that the double criminality rule, which conveys that ‘the requested State will only give assistance in cases where the underlying offence is a crime both under the law of the requesting State as well as under the law of the requested State’,27 is satisfied not only when the offence is described in an identical manner in both the requesting and the requested State, but even when the constitutive elements of the offence 27 André Klip, European Criminal Law: An Integrative Approach, 3rd Edition, 2016, Intersentia, page 383.

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are similar although the nomenclature/designation of the offence varies accordingly. This consideration has relevant legal consequences since it can have an impact on the application of the ne bis in idem rule.

For many years, extradition was inadequately addressed since it covered a limited range of criminal offences. Sometimes extradition does not take place in the absence of an explicit duty to surrender imposed by the strict terms of a convention. Moreover, some domestic courts have restrictively interpreted the enumerated offences in treaties so as to require in each case that the offence actually charged should correspond not merely with an offence by the law of the requested State which is conventionally proscribed, but with the offence of the same name, as defined by the law of the requested State. 28 This is the essence of the double criminality rule.

Extraditable offences in respect of designated foreign countries are: i. those offences in respect of which a fugitive may be returned to the requesting country in terms of a treaty provided that the offence for which the extradition is sought is punishable by at least one year of imprisonment under the law of the requesting State; and, ii. those which constitute an offence, or the equivalent act or omission which is tantamount to such offence, in the requesting State, which act or omission would amount to an offence in contravention of Maltese law if it took place in Malta or, in the case of an extra-territorial offence, in corresponding circumstances outside Malta.

Article 10 of the Extradition Act caters for general restrictions on return.

In actual fact, this legal provision shields persons from being extradited for offences ‘of a political character’. 29 This rule is commonly referred to as an ‘exception’ by many jurists. However, I refer to it as an ‘exemption’, a term also used by Silvia Borelli, since this is more appropriate.30 Such term 28 Ivan Anthony Shearer, Extradition in International Law, 1971, Manchester University Press, Oceana Publications Inc. page 132.

29 See Article 10(1)(a).

30 Silvia Borelli, The Rendition of Terrorist Suspects to the United States: Human Rights and the

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also eliminates the confusion that can be created by the examination of the depoliticizing formula31 which entails the subsistence of an ‘exception to the exception’.32 Nowadays this exemption is not uncommon in multilateral legal instruments,33 but is explicitly rendered inapplicable by some important international criminal law treaties34 which cater for what Christine van den Wyngaert calls ‘a depoliticizing formula’.35 An exception to the exemption generally subsists where the crime is one ‘which the Contracting Parties or the Requesting State have the obligation to prosecute by reason of a multi-lateral international agreement’.36 Whereas the relevance of the political offence exemption is gradually subsiding, mention must be made of the principle of non-refoulement which can be invoked on the basis of a well-founded fear of being persecuted for one’s political opinion, a ground (protected category) for refugee status in terms of Article 1A (2) of the Convention Relating to the Status of Refugees and its 1967 Protocol, and in terms of Article 2 of Chapter 420 of the Laws of Malta. States which are precluded from invoking the exemption, possibly by Limits of International Cooperation, 2004, p. 334, cited in Robert Kolb, The Exercise of Criminal Jurisdiction over International Terrorists, in Andrea Bianchi (ed.) Enforcing International Law Norms Against Terrorism, 2004, Hart, pages 227-281.

31 Christine van den Wyngaert, The Political Offence Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order, 1980, Kluwer, p.

141.

32 Mohammed Cherif Bassiouni, Law and Practice of the United States, in Mohammed Cherif Bassiouni (ed.) International Criminal Law, Procedural and Enforcement Mechanisms, Vol. II, 2nd Edition, 1999, Transnational Publishers, pages 191-275, at p. 243.

33 See Article 3 of the European Convention on Extradition (1957), and Article 2 of the European Convention on Mutual Assistance in Criminal Matters (1959).

34 See Article VII (1) of the Genocide Convention (1948) Convention on the Prevention and Punishment of the Crime of Genocide, Article XI (1) of the Apartheid Convention (1973) Convention on the Suppression and Punishment of the Crime of Apartheid, Article 11 of the Convention for the Suppression of Terrorist Bombings (1997), adopted by the United Nations General Assembly on 15 December 1997, and Article 14 of the Convention for the Suppression of the Financing of Terrorism (1999) adopted by the United Nations General Assembly on 9 December 1999.

35 Christine van den Wyngaert, The Political Offence Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order, 1980, Kluwer, p.

141.

36 Treaty Between the United States and the Federal Republic of Germany Concerning Extradition (1978), at 300.10, cited in Antje C. Petersen, Extradition and the Political Offence Exception in the Suppression of Terrorism, Indiana Law Journal, 1992, 67(3):767-796, at p. 775.

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means of an express provision within a bilateral or multilateral extradition treaty which regulates the requested extradition, may not invoke the exemption at all but may be able to rely on this principle. An individual, a potential extraditee, may become an asylum seeker and eventually (upon the conferment of refugee status) a refugee if such person proves that he will be constrained to undergo criminal proceedings for his diverse political opinions, this being a broader concept than that of a political offence.

The rule of speciality,37 ‘accepted by most States as a customary rule of extradition law’,38 is ‘stipulated in Article 10(3) of the Extradition Act. The language of this legal provision is of a mandatory nature. A simplified extradition procedure wherein the extraditee may waive his/her rights which entitle him/her to the rule of speciality (or specialty)39 would hence not appear to be possible before our courts.

37 Article 14 of the ECE (1957) European Convention on Extradition, signed in Paris on 13 December 1957. This rule is occasionally and inter-changeably referred to as ‘specialty’.

38 Silvia Borelli, The Rendition of Terrorist Suspects to the United States: Human Rights and the Limits of International Cooperation, 2004, p. 335, cited in Robert Kolb, The Exercise of Criminal Jurisdiction over International Terrorists, in Andrea Bianchi (ed.) Enforcing International Law Norms Against Terrorism, 2004, Hart, pages 227-281.

39 Neil Boister, An Introduction to Transnational Criminal Law, 2nd Edition, 2018, Oxford University Press, page 384.

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Theft, Misappropriation and Fraud - Any Difference?

Madame Justice Consuelo Scerri Herrera

Originally published on Id-Dritt XX, re-edited and re-published with the author’s permission.

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1. Introduction No proper study of the branch of criminal law dealing with offences against the property is complete unless it includes a thorough examination of the crimes of theft, misappropriation and fraud which crimes are found Title IX of Part II of Book I of our Criminal Code. This is so because not every wrongful act, although on the face of it amounts to theft, is in actual fact theft because the crimes of misappropriation and fraud are similar to the naked eye yet distant in their inherent elements, as can be evidenced later on in this article.

It is generally held as the famous Italian writer, Manzini puts it thatthe ‘oggetto generico della tutela penale’ in relation to these crimes ‘e’ l’interesso pubblico riguardante l’inviolabilita’ del patrimonio.’

2. Definitions I shall first attempt to explain the crime of Theft which unfortunately finds no definition in our Criminal Code. Our courts however inmany of its judgments have adopted the definition put forward by Carrara,that is ‘il furto e’ la contrettazione dolosa della cosa altrui fatta invito domino con animo di farne lucro.” It follows thus that the constituent elements of this crime are the following: l. The contraction of a thing – The term contrectatio is derived from Latin ‘contrectare’ and is generally described as that act whereby ‘il uomo pone le mani sulla cosa e se ne imapdronisce’.

This term and the notion it purports to qualify have been the centre of discussion amongst jurists within the context of the crime of theft. This is so because strictly tied to this notion is the question, as to when is the moment of completion of the crime . to be established. An interesting judgment in this regard is that in the names Il-Pulizija vs Alfred Attard where it was held that: Meta jkun hemm l-element ta’ abblazzjoni (asportation) ir-reat ta’ serq ikun komplett. Id-delitt ta’ serq huwa kkonsmat u komplut meta l-oġġett jittieħed anke 96

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momentarjament mill-kontrol ta’ sidu jew tal-possessur leġittimu tiegħu, anke jekk il-malvivent jiġi sorpriż fl-att ta’ teħid u għalhekk jerġa jpoġġi l-oġġett fl-art u jitlaq mill-post mingħajr ma jieħu l-oġġett miegħu. Appena l-malvivent jieħul-pussess ta’ l-oġġett ta’ terzi li jrid jisraq u dan billi jneħħih jew iwarbu mill-post fejn ikun tħalla minn sidu jew minn min qed iżommu f’dak il-mument hemm iddelitt komplet ta’ serq. Jekk minħabba xi ħaġa aċċidentali u indipendenti mill-volontà u l-kontroll tal-malvivent u jitlaq mill-post tad-delitt mingħajr ma jilħaq jieħu miegħu l-oġġett in kwistjoni dan ma jkunx ifisser li dak l-oġġett ma kienx ġie fil-pussess u kontroll tiegħu. F’Leading Cases in Criminal Law ta’ Warburton & Grundy dan il-prinċipju ta’ ablazzjoni ġie enunzjat hekk. ‘A bare removal from the placein which the thief found the goods though he does not make off with them is sufficient to constitute larceny.’

2. Belonging to others – ownership. The thing, the subject matter of theft must be a res aliena i.e. a thing which belongs to some other possessor at the time of taking. It is not necessary however that the owner be known or discoverable. It is sufficient for the crime that the person taking it away had no right to it. In fact it is not necessary that the person from whom the thing has been taken shall have been the owner thereof in the full sense of the Civil Law. It is sufficient if for instance the thing was on tenancy, under commodatum or on deposit – under a title. This means that there cannot be a theft of a res nullius or of a res derlicta.

3. Contractation must be made fraudulently. Thus the taking must be made with the knowledge of abstracting or taking the thing belonging to another. Any honest mistake will negative this ingredient However should he retain the object once he discovers that the object was not his then naturally he would become guilty too.

4. Without the consent of the owner – this implies that if the consent of the owner is given freely or spontaneously than the crime of theft is obviously excluded.

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Animo lucrandi the intention to make a gain. Gain does not only mean an actual gain in the sense of profit in terms of money but an advantage or satisfaction procured to one’s self. Therefore, even the person who steals intending to make a gift of the stolen thing is guilty of theft. Restitution of the thing or compensation of the thing only operates in the mitigation of punishment. In the judgment in the names Il-Pulizija vs James Chetcuti it was held that: Biex ikun hemm l’animus lucrandi li huwa meħtieġ għaddelitt ta’ serq hemm bzonn li l-ħaga misruqa jkollha xi valur anki minimu basta jkun hemm xi valur. Barra minn dan, il-lukru jista jikkonsisti anki fi kwalunkwe tgawdija, pjaċir jew sodisfazzjon li l-ħalliel jipprokura lili nnifsu bil-ħaga misruqa.1 Also in the case in the names Il-Pulizija vs Catherine Farrugia it was held that: “Fid-delitt tas-Serq hu meħtieġ li l’Animus Lucrandi” u hemm bżonn li l-ħaġa misruqa ikollha xi valur anke minimu, basta li jkun hemm xi valur. Bara min dan il-lukru jista jikkonsisti anki fi kwalunkwe tgawdija, pjaċir, jew sodisfazzjon li min jisraq jipprokura lili nnifsu.”2 Thus contractation of a res aliena to constitute theft must be made fraudulently in other words with the consciousness of abstracting or taking the property of another. The mens rea in this crime is not constituted by the mere intent to take but also by the intent to make a gain – the intent to procure a benefit or satisfaction from a thing belonging to others.

In the case in the names Il-Pulizija vs Anthony Borg Inguanez3 the subject as to whether it is possible to steal ones own thing was discussed and it was held that:1 Decided on the 3rd of February 1943.

2 Court of Criminal Appeal (Inferior), 31st October 1959.

3 Court of Criminal Appeal (Inferior), 26th August 1998.

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Il-kwistjoni jekk fil-liġi tagħna persuna tistax tinsab ħatja ta’ serq ta’ ħaga proprja ġia ġie dibattut u deċiż awtorevolement mill-Qorti Kriminali fis-sentenza tat-23 ta’ Frar 1945 fl-ismijiet R vs Joseph Degiorgio. Dik il-Qorti qalet hekk:- Din hija l-kwistjoni gravi tal-furto d’uso di cosa propria, li fuqha id-dottrina hija diskordi. Dina l-Qorti pero wara li kkunsidrat l-argumenti dottrinali tippropendi li taċċetta t-teorija sostnuta, fost oħrajn, mill-Pessina, mill-Lucchini… u tirritjeni għalhekk li r-res proprja tista’ mindaqqiet, għal ċerti kundizzjonijiet ġuridiċi, tiġi kkunsidrata bħala ħaga ta’ ħaddiehor meta l-propretarju b’effett ta’ ċerti rapport ġuridiċi tiġi kkunsidrata bħala ħaġa ta’ ħaddiehor meta l-propretarju b’effett ta’ ċerti rapport ġuridiċi, ma jkollux d-disposizzjoni libera talħaġa, kif inhu appuntu l-każ meta l-ħaġa tkun qiegħda b’rahan jew altrimenti sottratta mil-libera disponibilta tal-propretarju. Flliġi tagħna invece, ma hemm ebda disposizzjoni simili. Fid-dawl ta’ dan kollu din il-Qorti ma tara ebda raġuni għala għandha tiddipartixxi mill-insenjament ikkontenut fis-sentenza R vs Degiorgio u ċioe’ f’ċerti każijiet il-propretarju ta’ oġġett jista jkun ħati ta’ serq ta’ dak l-istess oġġett u ċioe’ meta ma jkollux iddisposizzjoni libera ta’ dak l-oġġett jew meta dak l-oġġett ikun altrimenti ġie sottratt mil-libera disponibilita tiegħu.4 On the contrary, the crime of Misappropriation is defined in the Criminal Code in Article 307 as the misapplication converting to one’s own benefit or to the benefit of another person of anything which has been entrusted or delivered to him under a title which implies an obligation to return such thing or to make use thereof for a specific purpose. The true essence of this crime is the abuse by the possessor who disposes of the thing as if it were his own (uti domini), he arrogates to himself powers which belong to the owner and by doing so damages the owners patrimony. The elements of this crime are the following: 1. The entrustment or delivery. In the case Il-Pulizija vs Carmelo Grech it was held that: ‘Hu prinċipju kardinali aċċettat minn żmien mill-ġurisprudenza u d-duttrina, tant estera kemm lokali, illi l-konseja tal-ħaġa timproprja s- serq għaliex, sabiex ikun 4 Court of Appeal (Inferior), 23rd February 1945.

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hemm serq jeħtieġ li jkun hemm dispossessament, mentri meta jkun hemm mil-konsenja tal-ħaġa jkun hemm vjolazjoni talproprjeta iżda mhux ukoll vjolazzjoni tal-pusess. Fis-serq hemm mil- vjolazzjoni tant tal-proprjeta kemm tal-pusess. Imma jista jkun hemm każijiet eċċezzjonali fejn il-konsenja ma timproprjax fis-serq, fosthom dak meta l-konseja tkun ġenerali. Jekk ikun speċjali, allura jkun hemm approprjazzjoni indebita.’5 2. Thing must be a movable 3. Obligation to return such thing or make use thereof for a specific purpose 4. Misappropriation ‘distrazione’. In Rex vs Antonio Pisani6 decided buy the Criminal Court of Appeal it was held that misappropriation must be applied in the widest sense of the exercise of even one of the rights pertainingto ownership.

5. The dolo or mens rea consisting in the willingness of the act of conversion and the fino di lucro.

Thirdly, I will introduce the crime of Fraud which has seen a few amendments in relation to its punishment by Act III of the year 2002. This crime too finds its definition in our Criminal Code in Article 308 which states the following:‘Whosoever, by means of any unlawful practice, or by the use of any fictitious name, or the assumption of any false designation, or by means of any other deceit, device or pretence calculated to lead to the belief in the existence of any fictitious enterprise or of any imaginary power, influence or credit, or to create the expectation or apprehension of any chimerical event, shall make any gain to the prejudice of another person, shall, on conviction, be liable to …..’

5 Court of Criminal Appeal (Inferior), 16th March 1957 6 Decided 2nd December 1941.

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The elements of the crime under review are the following:1. Whosoever with unlawful means; 2. Deceives or leads anyone to believe in a fictitious enterpriseor imaginary power; 3. Influences, credits or creates the expectation or apprehension of any chimerical event; 4. Makes a gain to the prejudice of another person.

Thus it transpires that our code gives a list of cases of fraud and fraudulent gains which are punishable. The use of the term fraud is however that of mise en scene, escroquerie or as sometimes called truffa. In fact this Article of the Code is entitled ‘obtaining money or property by false pretences’. The material element of this crime lies in the use of fraudulent machinations and devices to lead in error and in such a way procure an unjust gain to the detriment of the owner.

3. Distinctions It ensues from the above that despite that these crimes are all crimes against property, yet the law seeks to protect different material rights.

In Theft the interest sought to be protected is that relating to security of tenure (possession) of property (movable) which has to be safeguarded against any illegitimate dispossession committed ‘mediante sottrazione senza violenza personale’. In fraud, the state seeks to protect the property (movable and immovable) from fraudulent acts committed with gain in view.

In misappropriation, the state seeks to protect one’s proprietary rights by providing against illicit appropriation committed by a possessor over the movables of a third party.

There is also a juridical distinction as Manzini says “presupposto essenziale del furto e’ la mancanza del possesso del agente.’ This is so because in Theft, the juridical object protected by law is possession. However, if for some reason the owner or, as the case may be, the possessor has already parted with the possession of a thing a movable either by his free consent or by a vitiated consent then we 101

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cannot speak of theft but misappropriation or truffa or another fraudulent gain. In fact this consideration led to the distinction between furto proprio and furto improprio – summing up fraud and misappropriation as a sort of non violent theft.

In the above mentioned case of Rex vs Antonio Pisani7 this was referred to and glorified. The Court held that in theft proper there was a violation not only of property but also of possession and consequently since there is not only the violation of property we cannot speak of theft. There are only three exceptions were the fact that the owner parts with the possession of a thing, does not negative the crime of theft: 1. When the delivery of the possession is general and not special or limited to a particular thing.8 2. When the delivery is made under such circumstances as to show that the owner did not intend parting with the possession (e.g. I give you my watch to examine it).

3. When the owner though he has entrusted the thing to another to deliver it elsewhere sends someone else to watch over the person having the physical possession of the thing. This was enunciated in the case Il-Pulizija vs Maria Bezzina.9 In the judgment given by the Criminal Court of Appeal in the names IlMaesta Tieghu u R-Re vs Karmnu Zammit it was held that: ‘It- titolu ta’ serq jiskomparixxi jekk sid il-ħaga jkun issispossessa ruħu minna voluntarjament, sija pure b’effett ta’ raġġiri jew minaċċi użati mill-akkuza. Għax meta s-sid jisvesti ruhu minn ħaġa blannuwenza tiegħu, ma hemmx aktar ir-reat ta’ serq avvolja dilannuwenza tkun karpita. U dan avvolja r-reat ikun aggravat billi l-ħati jkun assuma t- titolu ta’ uffiċċjal pubbliku għax dejjem jibqa nieqes l-element imprexxindibli tas-sispossessament “invite domino” f’każijiet simili jkun hemm reat ieħor imma mhux dak ta’

7 ibid.

8 Il-Maesta Tieghu r-Re vs Pawlu Vella decided by the CriminalCourt of Appeal on the 3rd of September 1942.

9 Court of Criminal Appeal, 19th April 1958.

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serq.’10 In the judgment given by the Criminal Court of Appeal in the names IlMaesta Tieghu r-Re vs Antonio Pisani11, reference to Carrara was made in that ‘id-distinzjoni bejn serq u frodi qiegħda fil-vjolazzjoni tal-pusess naturali u mhux fil-pusess ġuridiki jew ċivili.’

It may not be amiss to point out that modern authors like Petrocelli and Antolisei criticize all these distinctions and say that they only serve to confuse jurors. However Article 281 of the Criminal Code qualifies theft when committed by a hotel keeper, inn keeper or driver of a vehicle and this helps to show the fertility of such a distinction.

These arguments bring us right into the subject of what are the real distinctions between the three crimes under review. To bring us right into the heart of the matter Manzini remarks that the crime of misappropriation occupies a relative position in the system of crimes against the property. In fact he says: ‘L’appropriazione indebita si differenzia dal furto principalmente perche’ metre essa pre suppone la pre esistenza del possesso della cosa altrui nell’agente infedele, la nozione del furto esige invece che il delinquente non abbia tale possesso ma che lo acquisti col delitto’. He goes on to say that “ la truffa si distingue dal furto principalment perche’ l’ingiusto profitto viene ottenuto dal truffatore inducendo con inganno il truffatore a cedergli cio’ che il primo vuole conseguire. Mentre il ladro toglie cio’ che gli conviene senza carpire alcun consenso al derubato . La truffa poi a differenza del furto puo avere per oggetto anche beni immobili.’

With regard to the distinction between misappropriation and truffa then it is to be noted that in truffa possession is obtained by means of deceit, as Manzini says ‘nella truffa l’agente consegna il possesso pereffetto dell’inganno nell’appropriazione indebita occorre che egli gia il posssso della cosa.’

10 Decided on the 28th March 1949.

11 Ibid.

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One may safely say therefore that the main distinctive element between the three crimes is that:a. In theft there is a violation or usurpation of possession. b. In misappropriation the owner has voluntarily parted with the possession but the new possessor changes the ‘causa possidendi’ by converting the thing to his own benefit or that of another. Reference is here made to the judgment given by the Criminal Court of Appeal in the names Il-Pulizija vs Karmnu Catania, wherein it was stated that ‘Biex ikun hemm mil-figura ta’ l- aproprjazzjoni indebita u mhux il-figura tas-serq hemm bżonn li l-ħaġa li tkun ġiet approprjata tkun ġietkonsenjata u fdata lil min ħadha taħt it-titolu li jimporta l- obbligu tar-restituzzjoni tagħha jew li jsir minnha użu determinat.’12 c. In fraud the owner or possessor also parts with the possession but his consent is vitiated because he has been induced to do so by fraudulent artifices.

It will be noted that even in theft one can have the use of fraudulent means but here such means are not resorted to convince the owner to part with the possession but albeit to obtain directly the movable (e.g. I put false diamonds in your jewel box identical to the genuine ones you have). Thus one can say that in these three crimes the difference lies in the different approach resorted to in each case to obtain a res aliena unjustly.

It must be noted that the two crimes of fraud and misappropriation have their moment of completion at different times. In misappropriation, possession precedes the crime itself. If in actual fact a person already in possession resorts to fraudulent devices to make that object his own then we do not speak of fraud or truffa but of appropriazione indebita. In fraud, the ‘l-ingann’ must precede the delivery.

In the abovementioned case of Pisani, it was held that in the crime of theft there is a violation of property and possession, while in the crime of fraud there is a violation of property only. However, this is not as correct as 12 Decided on the 8th October 1941

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one might be led to think. In reality in the crime of theft rather than a violation of property and possession we have a violation of possession independently of property. But even in the crime of fraud, one can have only a violation of possession because the lawdoes not require that the defrauded person must necessarily be the owner. He can in fact be a mere possessor and you can have a case where the real owner suffers no damage (e.g. a case where there is a res fungibiles).

4. Conclusion In conclusion, one feels the urge to ask himself how justified and how useful are all these distinctions. In England, with the enactment of the Theft Act 1968, as amended in 1978, larson, embezzlement and fraudulent conversion are replaced by a single offence, that of theft, of where the kernel is dishonest appropriation and not transgression of possession. It does not require the taking of property. Moreover in Italy, modern writers no longer mention the distinction between furto proprio and furto improrprio.

In fact, Carrara himself, who recognized the validity of this distinction, admitted that on strict technical grounds it was not exact. Nowadays, the Italians limit themselves to a distinction of convenience between crimes ‘contro il patrimonio mediante violenza sulle cose o alle persone” and crimes ‘contro il patrimonio mediante frode.’

In Malta we still have a great distinction between the three crimes and should a person be arraigned in court and accused of one of the three crimes and that crime does not result, the situation would lead to an acquittal and thus many a time the prosecution charges the individual with all three crimes so as to be certain of a conviction even thoughthe elements of the three crimes under review are different ab initio as explained above. Although improvement has been made with the introduction of Act III of 2002 in the sense that today the punishment that is awarded for misappropriation is similar to that of theft with all its aggravations, there is still room for improvement.

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Computer Misuse Dr Ezekiel Psaila

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1. Introduction The introduction of computers, the internet and other technological equipment was a very important step for human communication. In fact, technology today serves a wide purpose and is incorporated in many aspects of everyday routine. However, the mentioned innovation presented a new dimension where privacy was given a new meaning. It also gave criminals a new platform to take advantage of since few laws catered for crime happening through technological mediums.1 In fact, in Europol’s recent ‘Internet Organised Crime Threat Assessment’ (IOCTA) it was discovered that due to the fact that most legal frameworks still do not offer adequate prevention mechanisms, cooperation amongst states is essential. 2 The phrases ‘computer crime’ and ‘cybercrime’ are interchangeable umbrella terms for a number of crimes which are carried out through technological mediums, principally computers.3 The first known case of cyberattack, which was called the Morris Worm, happened in 1988. This brought about awareness that computer networks could be easily hacked and that more rigorous security features needed to be introduced. 4

2. Laws relevant to Malta The Council of Europe introduced the Convention on Cybercrime (the Convention)5 in 2001 and in the same year amendments were made to the

1 Stephanie Borg, ‘Legal Aspects of Cyberbullying and Cyberharassment’ (LL.D., University of Malta 2012), pg. 22.

2 Internet Organised Crime Threat Assessment (IOCTA)’, pg 12.

3 Artur Appazov, ‘Legal Aspects of Cybersecurity’ (University of Copenhagen 2014) pg 23.

4 This Is How One Man Accidentally Destroyed The Internet 30 Years Ago, Inverse, Scott Shackelford.

5 Convention On Cybercrime, 23 November 2001.

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Criminal Code6 to introduce the crime of ‘Computer misuse’. However, the convention was only ratified by Malta in 2012 and it entered into force in the same year. Substantively, the Convention and the Articles of the Criminal Code offer different categories of cybercrime. While the first speaks broadly of the different offences of cybercrime7, the Criminal Code8 focuses on unlawful access to, or use of, information and misuse of hardware. In fact, the section in the Criminal Code speaks of ‘computer misuse’ rather than ‘computer crime’ or ‘cybercrime.’

Other laws such as the Electronic Communications Networks and Services (General) Regulations and the Processing of Personal Data (Electronic Communications Sector) Regulations also provide some rules on cybercrime9 but they do not specifically and solely provide only for cybercrime.

Apart from these laws there is also a Cybercrime Security Website and continuous advertisements are also made through the media in order to raise awareness on cybercrime and on the Cyber Crime Unit which receives reports of such crimes in Malta.

3. Categories of cybercrime according to authors and as written in the law.

An English author suggested that there are three main strata of cybercrime which include: those offences which relate to the integrity of a computer, such as hacking; computer assisted crimes, which are general offences effected through computers, such as theft; and, lastly, computer content crimes, which include offences focusing on the content of computers, such as communications. This broad categorization was supported by UNDOC 6 Chapter 9, Criminal Code, 10 June 1854.

7 Convention On Cybercrime, 23 November 2001.

8 Chapter 9, Criminal Code, 10 June 1854.

9 Lexology 2018 Q&A Report On Data Security & Cybercrime In Malta, 13 April 2018.

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in 2013.10 However, even though there might be these categories, legal frameworks do not always provide for all of types of cybercrime.

For example, Michael A. Vatis in his paper about the convention on cybercrime suggested that ‘Substantively, the Convention is fairly comprehensive in addressing the most common categories of cybercrime’ but it fails to address situations which might fall under the laws of war where espionage or the use of force might take place.11 Therefore, although the convention is comprehensive of most offences and is the only cross-border legal instrument on cybercrime, improvements to address more specifically all categories of cybercrime still need to be made.

Although these categories might offer a better understanding of the different lengths that cybercrime may stretch to, if one looks at the convention12 it becomes clear that it does not only provide for the substantive cybercrime offences, but also speaks of procedures which need to be created in order to investigate such offences and the setting up of mechanisms to improve cooperation between states.

Therefore, having an understanding of which offences can give rise to cybercrime is essential but enhancement of these other features should still be a central theme since the convention aims to address the transnational aspect of cybercrime.13 Moreover, although these broad categories have been identified, in my opinion, in Maltese law, this categorisation is still not clear since cybercrime offences are still not placed under one Act or harmonious law and, as already mentioned, the Criminal Code provides only for computer misuse and not for computer crime. The discrepancies in the local scenario are going to be dealt with below.

10 Appazov (n.3) 11 ‘The Council of Europe Convention on Cybercrime’, Michael A. Vatis, Steptoe & Johnson LLP. 12 Convention On Cybercrime, 23 November 2001.

13 Vatis (n.11).

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4. Is the legislation in the Maltese Criminal Code on Computer Misuse enough to cover offences which fall under the general umbrella of Cybercrime or is ‘Computer Misuse’ a narrower term?

As already explained, the discrepancy between the convention and the Criminal Code when categorizing the offences raises the question as to whether Maltese legislation captures a narrower list of crimes then the convention. If so, then Maltese legislation does not provide enough protection against all categories of computer crime. In order to understand whether the Maltese section on Computer Misuse provides a strong legal framework against cybercriminals the relevant section can be compared to the English Computer Misuse Act of 199014 .

Although the said Act was highly criticised because many believed that there might be loopholes and also procedural difficulties to report such acts15, the fact that Maltese legislation on Computer Misuse only includes a section in the Criminal Code and there is no independent law which provides for computer misuse or the general issue of cybercrime shows that Maltese Legislation still does not provide a specialised framework where issues dealing with computer related offences can be addressed comprehensively.

The distinction between the English Act and the Maltese section on Computer Misuse becomes clearer as one considers the definition given to ‘computer’. The definition given in the Maltese Criminal Code is quite wide.

In fact, it includes ‘an electronic device that performs logical, arithmetic and memory functions by manipulating electronic or magnetic impulses, and includes all input, output, processing, storage, software and communication facilities that are connected or related to a computer in a computer system or computer network.’16 Therefore, although the electronic device needs to be connected or related to a computer, it does not have to be a computer itself. Nonetheless, in the English Act there is no definition of ‘computer’ as 14 English Computer Misuse Act of 1990.

15 The Computer Misuse Act 1990: lessons from its past and predictions for its future Macewan, University of Salford Manchester, Macewan NF, 2008.

16 Chapter 9, Criminal Code, 10 June, 1854, Article 337B (Emphasis added).

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the Act intended to cover offences which would develop in the future through technological progress. In the House of Lords case of DPP v McKeown and, DPP v Jones [1997] Lord Hoffman describes a computer as being ‘a device for storing, processing and retrieving information’ leaving enough room in the definition to also include smartphones and tablets rather than restricting it to computers and laptops.17 The limitations of the Maltese law are also reflected in the judgement of Il-Pulizija vs Joseph Tabone18 where the court concluded that although the word ‘computer’ is not used in some of the Articles of the law, from a review of the title of the law and the definitions provided in the section of ‘computer misuse’ it appears that articles 337B to 337G regulate acts which are only related to a computer and this means that an act of an Internet Service Provider (ISP) is not covered by these articles. In fact, the court stated that the law cannot be given such a wide interpretation and the rerouting of a website cannot fall under the offence of computer misuse. It also compared the convention with Chapter 9 of the Laws of Malta, as it stated that Maltese law does not mention cybercrime which means that it is not a law about all crimes which fall under the umbrella term of cybercrime, and unlike the convention it does not define what an ISP is. However, it also indicated that the area of computers and communications is a very wide area and additional laws might be introduced similarly as to what happened with the convention, which already has an additional protocol. It also referred to the English Act as this also does not cover all situations related to computer crime.

Therefore, from a short comparison of the convention and the English Computer Misuse Act with the sections in the Criminal Code and the judgement above, the conclusion is that the criminal code does not incorporate cybercrime or computer crime broadly but only provides for computer misuse and this term must be interpreted restrictively. Although as initially mentioned, there are other laws on cybercrime, these still do not cover all aspects such as for example general offences which are committed online such as theft, fraud and sexual harassment.

17 Director of Public Prosecutions v. McKeown and Director of Public Prosecutions v. Jones, House of Lords, 20 February 1997 (Emphasis added).

18 Il-Pulizija vs Joseph Tabone, Court of Criminal Appeal (Inferior), 10 March 2010.

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5. So what are the elements of ‘computer misuse’ in Maltese law?

The convention and the Criminal Code do not provide a definition of ‘cybercrime’ or ‘computer misuse’, respectively. In fact, it is extremely hard to come across a definition which shows what elements make up such offence.

However, the case-law of the Maltese courts tries to interpret the laws in the Criminal Code and the convention. Therefore, in order to understand what ‘computer misuse’ in Maltese law means it is essential to look at caselaw which explains which elements must occur and coexist in order for the offence in the Criminal Code to persist.

First of all, in the judgement in the names of Il-Pulizija (Spettur Bernard C. Spiteri) vs Jimmy Paul Saliba19 decided in February 2020 by the Court of Criminal Appeal, the court deduced what the aim of the legislator was when this section about computer misuse was introduced. Firstly, the court stated that the legislator intends for the person who makes use of information, data or software without authorisation and with harmful intent to be punished.

Therefore, besides the material act forming the offence there is also a need for the person performing such act to have a criminal intention (the formal element) in order for a crime under Article 337C of the Criminal Code to arise (although this does not have to be specific as will be seen below).

Furthermore, as seen from the wording of Article 337C sub-Article 2, the lack of authorisation is the principal element of this crime. It follows that this lack of authorisation emanates from a person who has the power and the right to control the activities mentioned in Article 337C. Therefore, if the accused was made to believe that there was authorisation by the responsible person for an action to be carried out, this needs to be taken into account when considering whether there was a criminal intent. In the present judgement, the court decided that although the modification made to the computer made the device inoperable and this was one of the elements needed for the offence to arise according to our law, the formal element was missing and therefore the accused could not be found guilty.

19 Court of Criminal Appeal (Inferior), 21 February 2020.

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Moreover, in the case of Il-Pulizija (Spettur James Grech) vs Cyrus Engerer20 the court spoke of the type of evidence that is required in order to prove that the IP address from which the computer misuse took place is connected to a particular person. The court declared that a person cannot be guilty only on the basis of indicative evidence which is inconclusive, especially if there is no proof of a direct link between the person being accused and the said address.

According to the court in Il-Pulizija (Spettur Angelo Gafa) vs Martin Debono Yves sive Bobby Cali21, some words need to be given a restrictive meaning if there is no definition in the law of such words. In this particular judgement it was the word ‘modification’ which was given a strict interpretation. In the same judgement the court referred to the White Paper ‘On the Legislative Framework for Information Practices’ which laid down that: Modification or destruction of computer equipment is considered an offence. Although destruction of property is an offence of long standing and already catered for in existing legislation, it is believed to be appropriate to make such a provision. Even though the equipment in question may be of small intrinsic value, the resulting damage caused by the impairment of the system may be great.22 The above quote means that there must be serious and permanent consequences left on the computer by the modification made without authorisation. Moreover, as already seen in the case of Il-Pulizija (Spettur Bernard C. Spiteri) vs Jimmy Paul Saliba, in order for an act to be categorised as ‘computer misuse’, there must not be any authorisation by the person responsible, and if that is the case then a specific criminal intent does not need to be proved.

Clearly, the judgements of the courts give a good indication of the elements which need to be satisfied for computer misuse to occur, although 20 Court of Criminal Appeal (Inferior), 8 May 2014.

21 Court of Magistrates (Malta) as a Court of Criminal Judicature, 26 September 2014.

22 White Paper ‘On the Legislative Framework for Information Practices’.

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a better explanation might still be required in order to understand the difference between the different sub-Articles on computer misuse in our law.

6. Sectors that this type of crime might affect.

Cybercrime does not only affect individuals but also affects whole sectors, businesses and nations. Studies show that banking and healthcare are two of the sectors which are mostly affected by crimes happening online, and even if one does not work in a financial sector it does not mean that he is not at risk of being cyberattacked. 23 Usually, personal information of different individuals is extracted from servers of banks and hospitals and since these contain information on thousands of persons, this means that a lot of information can be extracted in one cyberattack, affecting not only the companies or hospitals under attack but also customers and patients.

A case in point is the recent cyberattack which took place on the Bank of Valletta (BOV), which is one of the leading banks in Malta. The bank had to close all its branches and disable its ATMs to prevent any more damage.

It also had to stop card transactions. 24 This did not only affect the bank itself but it affected thousands of people and businesses who are clients of BOV. Although on the surface it seems that most of the businesses hit by a cyberattack suffer damage, such as BOV suffered in having to close its operations, there are also other damages which are hidden. Some of these include loss of reputation and loss of intellectual property. Therefore, damage which happens through a cyberattack can leave its effect for years on a particular company, especially when the information which was breached is extremely confidential. 25 23 Which are the sectors that are mostly affected by cybercrime?, Antonella Tozzi; Industries Most Affected By Cybercrime, 29 March 2017.

24 Malta: Cyberattack on Malta bank significantly disrupts banking operations, 14 February 2019 < https://www.garda.com/fr/crisis24/alertes-de-securite/203686/malta-cyberattack-on-malta-bank-significantly-disrupts-banking-operations>.

25 Cybercrime and its effect on businesses, Clickatell, 28 March 2017.

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Surveys made by Cybersecurity Malta show that most businesses are indeed affected by cybercrimes. In fact, in the end of 2018 40% of the respondents were directly affected by a cybersecurity attack, and 83% of the large businesses contacted admitted that they have been the victims of a cybercrime at least once. Moreover, they all agreed on the importance of risk assessments in order to prevent cybercrimes. 26 This is why it is important for governments and businesses to adopt different strategies and regulations on how cybersecurity can be enhanced and cybercrimes can be prevented.

7. Prevention?

In Malta a scheme called the ‘B secure scheme’ aims to help the private sector be prepared for this type of attack. This scheme includes the carrying out of assessments of a company’s digital assets, provision of training to employees, and issuing of certificates recognised worldwide to show that a company is secure and has undergone an assessment. 27 Moreover, during the Covid-19 pandemic Malta has also joined an international alliance led by Interpol to enhance cybersecurity. 28 Although the above initiatives are a step in the right direction, there are still a lot of measures which need to be taken in order to keep everyone safe.

Although there are education campaigns, many adults, some of which are parents whose children constantly use the internet, still do not understand that viruses and cybercrimes are easily carried out even through responding to a simple message or email. This can be seen from advertisements made

by Cybersecurity Malta which use the experiences of Maltese citizens in order to raise awareness.

26 B secure towards a secure cyber space for business, cybersecurity Malta. <https://cybersecurity.gov.mt/bsecure/>.

27 ibid.

28 Malta joins an international alliance led by Interpol to enhance Cyber Security during COVID-19, cybersecurity Malta, 20 May 2020.

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8. Way forward and conclusion In the opinion of the author, improvements to the Maltese legal framework and education campaigns need to be made. Apart from the need to provide a legal framework which is comprehensive of all cybercrimes by adapting a law which regulates all aspects of cybercrime instead of addressing these crimes in different laws, there is also a great need to constantly change and amend strategies in order to address new developments in technology which happen each and every day. Moreover, although campaigns, assessments and laws have been created to regulate cybercrime, the author believes that it is through education and a detailed explanation of how cyberattacks happen that persons can really understand what cybersecurity entails and how cybercrimes can be avoided. However, when cybercriminals still succeed then the legal framework should be strong and wide enough to impose liability and help the person wronged understand how improvements might be made for this not to happen again.

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Bribery Dr Veronique Dalli

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Bribery entails offering money or some other favour to someone in order to induce or influence them into doing something. Despite connotations of disloyalty, illegitimacy and illegality, bribery is not unlawful unless it involves a person in a position of trust; that is to say, either a public officer1 or a person entrusted with the administration of a company2. Our law, which uses the term interchangeably with ‘corruption’, therefore punishes payments designed to influence the actions of the person in a position of trust.

For the crime to subsist, all the following four elements must be satisfied: •

The act must involve a person in a position of trust;

•

That person must have requested, received or accepted a reward, promise or offer that they were not entitled to;

•

The reward, etc., was in direct connection with their employment;

•

The reason behind the reward etc. is for the person to do or not to do something they were duty-bound to do.

The exchange of money is therefore not an essential element of the crime: a mere offer or promise of an undue advantage suffices. Nor is it necessary that the reward be promised in favour of the person in a position of trust specifically; it may very well be promised in favour of a third-party.

The value of the reward is likewise immaterial since the law simply speaks of a reward irrespective of its value or nature. It therefore follows that the reward need not be quantified as long as it is in some way advantageous: Huwa essenzjali li l-korruzzjoni għandha tieħu l-forma ta’ aċċettazzjoni ta’ xi rigal jew wegħda jew offerta ta’ xi rigal fi flus jew f’utli ieħor, jew ta’ xi vantaġġ ieħor irrispettivament mill-valur jew sura tagħha. Ħafna drabi l-korruzzjoni kienet tikkonsisti f’aċċettazzjoni ta’ kunsiderazzjonijiet ta’ valur però l-aċċettazzjoni ta’ wegħda hija biżżejjed. M’hemmx għalfejn li l-valur jiġi kwantifikat. 3 1 Article 115 of the Criminal Code.

2 Article 121 of the Criminal Code.

3 Il-Pulizija vs Raymond Ferris, Court of Appeal, 17 March 2016.

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The reward need not be in the form of money, but it must consist of something tangible and objectively beneficial. If the public officer succumbs to pressure or solicitation without such promise or benefit, the crime of bribery would not subsist: F’dan ir-rigward, il-Qorti tosserva li l-lokuzzjoni adoperata milligi hija tali li tirrikjedi fiha kull ħaġa li tista’ tkun ta’ vantaġġ għal persona li tkun ġiet korrotta, u ghalhekk mhux neċessarju li dan il-vantaġġ jikkonsisti fi flus.4 Not only is the quantity and quality of the reward irrelevant, but so is the scope and gravity of the illegitimate act being sought. The crime ‘subsists at any rate in it simple form, irrespective of the inherent justice or injustice of the act which the reward was intended to induce the public officer to do. The justice or injustice of what the public officer does or engages to do in view of the reward or promise or offer or reward, is not an essential ingredient of the crime but only serves as a criterion to distinguish one form of the crime from another for the purpose of punishment’.5 What is essential, however, is the existence of a direct link between the dishonest act and the office or employment of the person in a position of trust. The act has to fall within the professional remit of that person, because an act which is foreign to that person’s functions and which he would have no right to do by virtue of those functions would simply constitute an act of that person, but not an act of that person’s office.6 The correlation between the acceptance of the reward and the duties of the person in a position of trust is therefore an essential element of the offence. But it is sufficient that the act be one which the officer could do in the exercise of his duties; it does not have to be something over which the officer had immediate and direct control.

4 Il-Pulizija vs Kenneth Sevasta, Court of Magistrates, 30 May 2016.

5 Professor Mamo, favourably cited in Il-Pulizija v Kenneth Sevasta, Court of Magistrates, 30 May 2016.

6 Professor Mamo, favourably cited in Il-Pulizija vs Lilian Galea, Court of Appeal, 28 March 2012.

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What matters is that it falls within the officer’s competence. It thus follows that there is no bribery if the reward is offered in relation to an act which was simply believed to fall within the officer’s duties: it is necessary that the act should be such in the reality of things.

What is also essential is the acceptance, not just of the reward itself, but to commit the act or refrain from doing the act in accordance with the corrupter’s instructions. The acceptance need not be made in any formal way, and can take the form of a simple declaration that the officer ‘lest li jgħin’ or ‘lest li jara x’jista’ jsir’.7 Taking the reward and not following up on the instructions of the corrupter is, however, not a crime: a person in a position of trust may very well accept and take the reward but refrain from obeying the corrupter’s instructions. In Raymond Ferris, the accused accepted the gift but advised the corrupter that he did not have the competence to do what he was being asked to do since the matter did not fall within his remit: Issa f’dan il-każ ġie stabbilit illi ma kienx fi dmir tal-appellat illi jipparteċipa fil-proċess ta’ l-aġġudikazzjoni u li tali deċiżjoni ma kenitx taqa’ fil-mansjonijiet tiegħu. Fil-fatt l-appellat igħid illi meta kien avviċinah Farrugia huwa stess infurmah illi d-deċiżjoni ma kenitx tispetta lilu u li kien ħa r-rigali għax dak il-ħin beża’ u tfixkel u ma kienx jaf kif kellu jirreaġġixxi meta affaċċjat b’din is-sitwazzjoni.

Dan iwassal għal fattur ieħor importanti u cioè illi l-provi in atti ma humiex biżżejjed b’saħħithom sabiex jindikaw illi kien hemm dak il-pactum sceleris u cioè dak il-ftehim bejn Farrugia u l-appellat.

Dan għaliex jidher illi għalkemm l-appellat aċċetta r-rigali, huwa mill-bidunett ma kellu l-ebda intenzjoni igħin lil Farrugia kif kien mitlub illi jagħmel tant illi ir-rigali żammhom għalih u bl-ebda mod ma ipprova igħaddiehom lill-membri tal-Bord jew inkella ipprova jinfluwixxi fuqhom sabiex it-tender tiġi aġġudikata lil Farrugia.

Dan jixhdu b’mod ewlieni Emmanuel Ellul iċ-Chairman tal-Bord, kif diġa ingħad, li jgħid b’mod kategoriku illi għalkemm jaf lillappellat, madanakollu hu qatt ma kellmu fuq l-aġġudikazzjoni tat-tender jew ipprova jinfluwenzah fid-deċiżjoni tiegħu tant illi filfatt it-tender ġiet aġġudikata lil ħaddieħor.

7 Il-Pulizija vs Raymond Ferris, Court of Appeal (Inferior), 17 March 2016.

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This element ties in with the other essential requisite, which is the existence of a direct link between the dishonest act being requested and the office of the person of trust.

The last requisite is particularly interesting in that the law envisages not only scenarios where the person in a position of trust is promised a reward in order not to do something within their duty, but also scenarios where that person is promised a reward for simply doing what they are supposed to do. This distinction is relevant for the purposes of the punishment, which is significantly higher when the reward is designed to induce the person in a position of trust to refrain from doing something he is bound to do: Huwa immaterjali - għal finijiiet tar-responsabilità li nonostante dan il-vantaġġ l-impjegat xorta waħda għamel dmiru. Ghax ir-reat odjern […] huwa kkonsmat mal-aċċettazzjoni tal-offerta u mhux mal-effett ta’ din fuq l-eżerċizzju tal-funzjonijiet tal-impjegat.8 A question that arose over the years is whether the crime of bribery subsists if the illegitimate act takes place before the offer and acceptance of the reward. Our courts concluded that it does not, because bribery after the fact is not envisaged in our legal system. This means that there is no crime unless an agreement is reached before the commission of the illicit act: our law only punishes the acceptance of a reward in respect of an act that the person in a position of trust has not yet done, and not a reward promised or accepted after the act.9 10 Both the person making the reward as well as the person accepting it can be found guilty of bribery. The person accepting the reward is the principal offender while the person making the reward is deemed an accomplice.11 It is not necessary that the accomplice makes any profit for him or herself:

8 Il-Pulizija vs Raymond Ferris, Court of Appeal, 17 March 2016.

9 Professor Mamo, favourably cited in Il-Pulizija vs Lilian Galea, Court of Appeal, 28 March 2012.

10 Il-Pulizija vs Thomas John Woods, Court of Magistrates, 18 April 2016: ‘Għaldaqstant joħroġ ċar illi sakemm ma jkunx hemm ftehim minn qabel il-kommissjoni ta’ l-att ma jistax ikun hemm korruzzjoni ta’ uffiċjal pubbliku wara li dan ta’ l- ahhar ikun qeda d- dover tiegħu’.

11 Article 120 of the Criminal Code.

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Il-fatt illi l-imputata kienet tagħmel dana ‘senza interessi’ ma jfissirx illi hija ma kienitx qed tirrendi ruħha kompliċi fil-kummissjoni ta’ dana ir-reat.12 What is the lesson to be drawn from this brief examination of domestic legislation? The law punishes all those who in some way or another seek to influence a person in a position of trust for a corrupt purpose, as well as those officials who are successfully induced into carrying out the corrupt act. There is no need to prove that the corrupter has sought to benefit from his conduct, nor is there a need to prove that the corrupter was actually successful in bribing the official.

12 Il-Pulizija vs Saveria sive Saverin Singara, Court of Magistrates, 30 June 2010.

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Sexual Offences Dr Leonard Caruana Dr Charles Mercieca

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1. Background Since the promulgation of the Criminal Code in 1854, in order to obtain a successful conviction for the offence of Rape (Article 198 of the Criminal Code), the prosecution had to prove the existence of two elements: (i) Carnal Knowledge and (ii) Violence. These two elements had been interpreted and examined by our Courts for over a hundred and fifty years until the promulgation of Act XII of 2018 on the 30th April 2018. This Act: • Repealed the Domestic Violence Act (Cap. 481) and replaced it with the Gender-Based Violence and Domestic Violence Act, 2018 (Cap. 581); • Completely redefined the offences of Rape (Art 196), Abduction (Art 199), and Participation in sexual activities with persons under the age of sixteen (Art 204C); • Introduced new offences, such as Sexual Harassment (Art 251A) and Revenge Pornography (A 208E); • Amended the offence of Defilement of Minors (Art 203); • Increased penalties for select sexual related offences; and, • Implemented the Council of Europe Convention on preventing and combating violence against women and domestic violence, commonly referred to as the Istanbul Convention (CETS 210).

Traditionally, our Courts adopted Maino’s rule of thumb when interpreting the circumstances of a case, wherein he holds that: ‘L’indagine caratteristico del delitto si riduce a questo, di determinare se la congiunzione carnale sia avvenuto contro la volontà della vittima, e nonostante quella che secondo le sue forze fisiche e la sua energia morale ha potuto fare. Tutto il resto si riduce ad un apprezzamento delle circostanze del fatto che rientra nelle nozioni piu ovvie della vita.’

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Therefore, the Courts looked out for two elements: (i) the carnal connection made (ii) against the will of the victim.

Act XIII of 2018 retained these two basic elements of this offence but substituted the previous manifestations of this offence, i.e. the (i) violence and (ii) carnal knowledge with the elements of (i) consent and (ii) carnal connection. These latter new elements are more precise and are designed to reduce as much as possible any risk of ambiguity.

2. The Element of Consent: Previously, the use of violence by the agent presumed that the victim was not giving a free and wilful consent to the act. Our Courts established that violence could have been physical or moral; real or presumed. Physical violence implied the use of force, up to any degree, on the victim’s body whilst moral violence implied the victim’s psychological manipulation by the agent (which would include threats, false pretences and/or coercion, amongst others). Real violence, on the other hand, implied the use of an outside action which was essential at bringing about the carnal connection, whilst presumed violence referred to those instances where the law creates a juris et de jure presumption of violence, as found in Article 201 of the Criminal Code.

The element of violence had to be present at the commencement of execution of the acts. The Courts had to determine the existence of this element on a case by case basis. The European Court of Human Rights in the case M.C. v. Bulgaria1 criticised those legal systems where violence is a key element to this offence by stating that any rigid approach requiring proof of physical resistance risks leaving certain types of rape unpunished, thus jeopardising the effective protection of the individual’s sexual autonomy.

Act XIII of 2018 changed this legal position and brought Malta in line with the Istanbul Convention by replacing the element of violence with 1 Case of M.C. v. Bulgaria, European Court of Human Rights, Court (First Section), 4 December 2003 (Application No. 39272/98) (§ 166).

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the more clear notion of ‘Lack of Consent’. In fact, the opening words of the amended Article 198(1) are ‘Whosoever shall engage in non-consensual carnal connection [...]’.

The element of consent has been a long standing element in the offence of rape in English law. In fact, the United Kingdom Sexual Offences Act, 1956, had already introduced offences whose elements necessitate a lack of consent on the part of the victim. The UK Sexual Offences Act, 2003, went even a step further by introducing a statutory definition of ‘Consent’. Article 74 of this Act states that ‘A person consents if he agrees by choice, and has the freedom and capacity to make that choice.’

The question of capacity to consent became particularly relevant in an English case when the complainant was intoxicated at the time of the act.

In R v. Bree2 , the England and Wales Court of Appeal (Criminal Division) explored the issue of capacity and consent, stating that: if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant’s state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape.

Under English law the perpetrator must reasonably believe that the penetration is non-consensual, and to determine whether such belief is reasonable, all the circumstances of the case must be analysed, especially to determine whether the active subject has taken any steps to ascertain such consent or not. In the UK case of R v. M3 the Court held that there is a difference in the tests which may be applied by the Courts to determine whether the accused was aware of the lack of consent of the victim.

Locally, the element of ‘lack of consent’ is defined by Article 198(3) of the 2 R vs Bree [2007] EWCA 256.

3 Regina vs MM [2011] EWCA Crim 1291.48.

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Criminal Code which stipulates that: (3) The acts referred to in sub-article (1) shall be deemed to be non-consensual unless consent was given voluntarily, as the result of the person’s free will, assessed in the context of the surrounding circumstances and the state of that person at the time, taking into account that person’s emotional and psychological state, amongst other considerations.

This sub-article, whilst inverting the burden of evidence as will be discussed below, provides the Courts with benchmarks that may be used to determine whether a sexual encounter was consensual or not. The elements in this sub-article are cumulative and not alternative, and if any of these elements is not satisfied, then the act is deemed to have been done without consent. The Court is being asked to investigate whether the victim’s consent was purely free or whether it was vitiated by some circumstance.

This sub-article proposes a hybrid test approach by which on the one hand the Court is to apply the subjective test on part of the victim to establish whether the victim was free and capable of giving the consent, whilst on the other hand it must also apply the objective test to determine whether the circumstances surrounding the case militate in favour of consent or the lack of it. Therefore, a simple declaration by the victim that s/ he gave the necessary consent for the act might not necessarily exculpate the agent from the offence if the Court is convinced, from the surrounding circumstances, that the consent was not freely given and the victim was not capable of giving it at the time of the act.

In addition to the above, Article 201 of the Criminal Code creates a presumption of lack of consent whenever the (i) act is committed on any person under 12 years of age or (ii) the person abused was unable to offer resistance owing to physical or mental infirmity, or for any other cause independent of the act of the offender, or in consequence of any fraudulent device used by the offender. Whilst in the first scenario the Court is asked to simply verify the age of the victim, the second scenario requests a deeper examination of the circumstances of the case and the character of the victim.

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3. The Element of Carnal Knowledge: Act XIII of 2018 also fine-tuned the second element of this offence. The element of ‘carnal knowledge’ has now been replaced with the more specific, yet wider, concept of ‘carnal connection’. Prior to these amendments, the Criminal Code did not explicitly specify what is to be understood with the term ‘carnal knowledge’ and therefore it was up to the Courts to determine, on a case by case basis, whether the particular set of circumstances in a given case amounted to carnal knowledge or otherwise.

The element of ‘Carnal Connection’ is now accurately defined by Article 198(1) of the Criminal Code through the definition of ‘vaginal or anal penetration of a sexual nature with any bodily part, and, or, any object, or oral penetration with any sexual organ of the body of another person’. This element has two alternative modes of the actus reus: either (i) the ‘vaginal or anal penetration of a sexual nature with any bodily part, and, or, any object’ or (ii) ‘the oral penetration with any sexual organ of the body of another person’. This Article focuses on the orifices of the human body which may be abused for sexual activities. It is a gender-neutral Article which does not provide any limit to the number of participants, the gender or sexual orientation.

The first mode of the actus reus focuses on anal and/or vaginal penetration. This type of penetration may be done with any part of the human body or even an object. The essential element here is, however, that such penetration is of a sexual nature. Therefore, not any type of penetration would satisfy this element of the offence, but one which has a sexual nature.

The Code does not provide any definition or grade of what constitutes this sexual element, thus leaving the interpretation and existence of this element on a case by case basis.

It is important for the Courts to determine the existence of the sexual nature of an act since this first limb of the actus reus focuses on the sexual organ of the victim, rather than the agent, and therefore it is necessary to determine the animus of the agent. Certainly, there are situations where although there might be vaginal or anal penetration, the sexual element is missing and therefore there is no criminal offence. Such would be the case, for instance, where one has certain tests carried out by a gynaecologist which require, to some degree, penetration of the patient’s vagina with 132

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medical instruments.

The second alternative of the actus reus is the oral penetration with any sexual organ of the body of another person. This second mode of the actus reus is more specific than the first because it necessitates that the penetration is an oral one and done with any sexual organ of the body of another person.

Unlike the first mode of the actus reus, this second mode requires the use of any sexual organ by the aggressor, but is limited to oral penetration of the victim. The sexual element in this second limb is presumed to exist from the very fact that, this time, it is the agent’s sexual organ which is being used in the commission of the crime and therefore there is a strong presumption that there exists the sexual nature.

Interestingly, the proviso to Article 198(1) of the Criminal Code stipulates that ‘penetration with any bodily part and, or object shall be deemed to be complete by its commencement, and it shall not be necessary to prove any further acts.’ This proviso equates the attempted offence to the completed offence and echoes the older Article 206(3) which states that those crimes found in this title which require a carnal connection are deemed to be complete by the commencement of the connection, and it shall not be necessary to prove any further acts.

The Maltese Courts, in the case Il-Pulizija vs Omissis4 held that: Biex ikun hemm ir-reat ta’ stupru mhux meħtieġ li jkun hemm penetrazzjoni sħiħa w l-iċken bidu ta konessjoni karnali hija sufffiċjenti biex jissussisti r-reat.

4 Il-Pulizija vs Omissis, Court of Criminal Appeal, 4th September 2003 (Criminal Appeal No. 51/2003)

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4. Facilitating Rape Article 198(2) creates the offence whereby a victim is coerced to engage in non-consensual activities either with the agent or with third-parties: (2) Whosoever by force, bribery, deceit, deprivation of liberty, improper pressure or any other unlawful conduct or by threats of such conduct, causes another person to engage in any of the non-consensual acts described in the preceding sub-article with any person shall, on conviction, be liable to imprisonment for a term from six to twelve years.

The elements of this offence are that the agent, through the acts listed in the sub-article causes the victim to engage in non-consensual acts with any person, be it the agent himself or any third-party. It is not necessary that the agent engages in carnal connection with the victim for this offence to subsist. If there exists a triangulation of the parties: i.e. the agent, the victim and the person raping the victim, this sub-article would apply to the agent whilst the person raping would be liable for the offence of Article 198(1).

5. Defences to the redefined offence of Rape The raft of amendments to Chapter 9 of the Laws of Malta as described in the preceding sections of this paper, have also led to a change in the way rape is prosecuted and defended in court.

In the first place and most strikingly, Article 198(3) of Chapter 9 of the Laws of Malta seems to establish an inversion in the evidential burden onto the defendant with regards to the element of consent. Article 198(3) stipulates that: the acts referred to in sub-article (1) shall be deemed to be non-consensual unless consent was given voluntarily as the result of the person’s free will, assessed in the context of the surrounding 134

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circumstances and the state of that person at the time, taking into account that person’s emotional and psychological state, amongst other considerations.

Here, the legislator appears to introduce a iuris tantum presumption that the carnal connection complained of by the injured party has been performed without the injured party’s consent. The legislator then continues to lay out a subjective test, balanced with an objective element, in order to determine whether consent was indeed freely given or otherwise. The natural question which follows is whether this evidential burden must necessarily be discharged by the defendant or whether it is the prosecution who must prove beyond a reasonable doubt that the subjective ‘context of the surrounding circumstances test’ show that the victim was not consenting. A keen reading of the first part of Article 198(3) signals that the legal reasoning adopted by the Maltese legislator about the discharge of the evidential burden, is more akin to the former rather than to the latter situation.

This means that is up to the defendant to prove, on a balance of probabilities (and not that of beyond a reasonable doubt), that consent was either given voluntarily or that given the ‘context of the surrounding circumstances’ he had every reason to believe that consent was given voluntarily. This is very similar to the defence of reasonable belief5 adopted the in the UK Sexual Offences Act 2003. While the English law does not create a iuris tantum presumption against the defendant, Sections 1(1) and (2) of the Sexual Offences Act stipulate the following: (1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and 5 See Sexual Offences Act UK S1(1)(c); United States v King 34 F302, 309 CCEDKY 1888; Berliner, Dana. “Rethinking the Reasonable Belief Defense to Rape.” The Yale Law Journal 100, no. 8 (1991); Also it is important to distinguish between the defence of reasonable belief and the defence of mistaken belief, which although similar they differ widely in their applicability.

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(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Therefore, the English prosecutor has the evidential burden to prove beyond a reasonable doubt that indeed the defendant did not have the reasonable belief that the victim was consenting. Similarly to Maltese law, English law also applies a context test which is subjective, balanced with an objective element. This can be demonstrated by asking two questions: Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).

If so, did the suspect reasonably believe it? It will be for the jury [the presiding Magistrate] to decide if his or her belief was reasonable (the objective element).6 One can draw some parallels between the English and the Maltese interpretation of reasonable belief. If a person accused of rape in the Maltese Courts manages to prove on a balance of probabilities that from the ‘context of the surrounding circumstances’ he took all the necessary steps which led him to reasonably believe that the complainant was consenting, then he would have successfully discharged the burden of proof.

The shift in the evidential burden of proof for a crime which reaches a maximum of 12 years imprisonment raises some concerns. Primarily, introducing a very subjective test necessarily means that the investigation and prosecution hinges on the specific circumstances of each individual case with its individual and particular facts. This adds a greater responsibility on the police when carrying out their investigations relating to an allegation of rape. The authors opine that it is essential for any police investigation to establish at a very early stage what steps did the suspect take to ensure that the complainant was indeed consenting.

6 https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent (accessed 6th December 2020)

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The absence of these steps can have very serious consequences on correctly charging and prosecuting the suspect and can unjustly subject individuals to the punitive nature of the criminal justice process. As mentioned above in this paper, correctly determining consent and the circumstances which surround it were expounded upon in the case of R v. Bree7. Interestingly, in the case Pulizija vs Omissis8 the Maltese Courts distinguished between consent and submission of the victim. Defence counsel attempted at arguing that the victim’s submission to the aggressor’s advances was tantamount to consent. The Court disagreed with these arguments and explained that submission does not necessarily imply consent.

In this sense, English Law does not require the complainant to communicate the lack of consent9. What is required is some degree of evidence attesting the lack of consent, which degree will depend on the circumstances of the case. Such evidence may include, for instance, that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs. Although not as burdensome to overcome, this legal reasoning, established in R v. Malone10, is very similar to the iuris tantum presumption created by the Maltese legislator in Article 198(3).

6. Punishment Any person who is charged with the offence of rape is liable to the punishment of imprisonment for a term of between 6 years and 12 years.

It is interesting to note that Article 198(1) does not provide for a pecuniary punishment, but only a punishment of imprisonment.

Moreover, Article 202 of the Criminal Code provides an exhaustive list of 7 op.cit.

8 Pulizija vs Omissis, Court of Magistrates (Malta), 24 February 2012 (Case No 376/2007).

9 Regina v Malone [1998] 2 Cr App R 447.

10 ibid.

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aggravations to this offence. In fact, if the offence of rape is accompanied with any of the aggravations mentioned in that Article, the punishment for the offence is increased by one or two degrees. This can mean that the punishment can increase to a maximum of 20 or 30 years imprisonment, respectively.

Finally, Article 209A of the Code states that any person who is found guilty of an offence under this title of the Code, including the offence of rape, shall not be eligible to the benefits of Article 21 of the Criminal Code. Article 21 empowers the Court, where there are special and exceptional reasons which are to be expressly and explicitly stated in detail in the judgement, to apply a lesser punishment than that stipulated by law for specific crimes.

7. Payment for Damages or Compensation The compensation of victims of crime is a novel concept in our criminal law tradition. More often than not, the victims of any crime would have to resort to the Civil Court in order to obtain a monetary remedy for the damages resulting from the committed crime.

Act XIII of 2018 changed this tradition by introducing Article 15A as a general provision empowering the Court to order the convicted person to return any proceeds or gain yielded by the crime or even to pay any compensation which is determined by the Court. This order would be given in addition to the punishment for the specific offence. Specific to the offence of Rape, Article 198(4), empowers the Court to impose an order on the offender to return back to the victim any property or proceeds gained through the commission of the offence and even to pay damages, including moral damages and psychological damages to the victim.

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8. Withdrawal of the proceedings With regard to the offence of Rape, the position was that notwithstanding that criminal proceedings would have been instituted against an alleged perpetrator, the victim could have withdrawn the complaint made, thus leading to the premature termination of the criminal proceedings. The position has been changed by Act XIII of 2018, wherein the proviso of Article 543(f) now gives the Court the discretion to order the continuation of the proceedings notwithstanding that the victim would have expressed the intention to withdraw the complaint. In exercising this discretion, however, the Court must give particular consideration to the best interests of the complainant, any minors involved and any other relevant third-parties. After carrying out this exercise, the Court will then direct whether to order the cessation or the continuation of the proceedings.

This discretion has been extended to cover all offences involving domestic violence as defined by the Gender-Based Violence and Domestic Violence Act (Cap. 581 of the Laws of Malta).

Finally, given the novel nature of the recent amendments to Article 198 et seq. the legislation has not yet been thoroughly challenged and weathered in Court. It is therefore interesting to see how the Maltese courts will embrace and interpret these amendments with a view of further expounding the correct and proper interpretation of these offences.

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Perjury Dr Stephen Tonna Lowell

Originally published on Id-Dritt XX, re-edited and re-published with the author’s permission.

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1. Introduction The Maltese Criminal Code deals with the offence of perjury in four separate provisions (Articles 104–107) yet fails to give a definition of this offence. It has therefore been left up to doctrine and jurisprudence to determine the essential ingredients of perjury. This offence, originally referred to as falsa testimonianza, is today also referred to as judicial perjury as distinct from extra-judicial perjury which is dealt with in a separate provision of the Code (Article 108).

Perjury falls under the wide class of offences found in Title III of Part II of Book First of the Criminal Code, namely ‘Crimes against the Administration of Justice and other Public Administrations’. In fact, the scope of punishing this offence lies in the fact that false testimony tends to mislead the proper administration of justice. The Italian jurist Antolisei states that: La ratio dell’incriminazione è evidente. L’Autorità giudiziaria, per assolvere i suoi compiti, ha bisogno di mezzi di prova e particolarmente di testimonianze, le quali debbono essere veritiere e complete, affinchè possano essere emessi provvedimenti giusti, e cioè conformi alla lettera e allo spirito della legge. La testimonianza falsa e reticente può fuorviare l’attività giudiziaria e per questa ragione viene sottoposta a pena.1 The Maltese jurist Falzon says that it is certain that the constituent ingredients of the offence of perjury are the following: (1) a testimony; (2) given in a cause, whether criminal or civil; (3) given on oath; (4) lawfully administered by the competent authority; (5) which testimony is false; (6) in a material particular; (7) which is harmful or potentially harmful; (8) given with criminal intent.151 Prof. Mamo agrees that the above are the ingredients that constitute the offence of perjury but subdivides them differently. 2

1 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, GiuffrèEditore, Milano, 2000, 13 ed., p. 464.

2 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, Revised Ed. 1954-1955, pp. 60-61

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2. A testimony A testimony is a deposition or a declaration made before a court by a witness, referee or interpreter. In cases of false references or false interpretations, referees and interpreters are punished in the same way that ordinary witnesses are punished because it is also within their powers to pervert the course of justice. On the other hand the production of false documentary evidence is dealt with in a separate provision (Article 103).

By means of an amendment introduced in the Criminal Code by Act III of 2002, today any person who makes a false affidavit knowing that such affidavit is required or intended for any civil proceedings also commits perjury. It is somewhat strange that this amendment was not extended to persons making a false affidavit when such affidavit is required or intended for any criminal proceedings. In fact the same Act introduced a provision whereby, in summary proceedings for offences within the jurisdiction of the Court of Magistrates as a court of criminal judicature the police may serve upon the accused copies of any affidavits made by a public officer or by an employee or officer of a body corporate established by law and who is to be produced as a witness for the prosecution in those proceedings. The fact that both concepts were introduced by the same Act may be interpreted in the sense that a person making a false affidavit required or intended for criminal proceedings does not commit perjury.

The expression used in Articles 104 and 105 ‘either against or in favour of the person charged or accused’ have given rise to much discussion before our courts. In the case Il-Pulizija vs. Wigi Attard (25.04.1953 – Kollez. XXXVII. iv.1074), Attard was accused of having given false evidence in his own trial.

He pleaded that our law punishes those cases where a person gives false evidence either against or in favour of the accused which necessarily meant that the person giving false evidence could not be the accused himself.

The Criminal Court rejected this argument after observing that prior to the amendments introduced in our Criminal Code by Ordinance VIII of 1909, the person accused and his wife were not competent witnesses and thus could not tender evidence: Iżda dan ma jfisser xejn, għax hi ħaġa mhux diskussa illi ddisposizzjoni tal-liġi, li oriġinarjament tolqot jew tista’ tolqot ċerti persuni biss, għax dawk biss jistgħu jagħmlu att minnha kolpit, 145

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imbagħad, bl-evoluzzjoni taż-żmien, issir tolqot persuni oħra, jekk, b’liġi sussegwenti, anki dawn il-persuni oħra jkunu jistgħu jagħmlu l-att minnha riprovat.

The same identical point arose in the case Il-Pulizija vs. Carmelo Bartolo (12.05.1953 – Kollez. XXXVII.iv.1085). Bartolo was also accused of having given false testimony in his own trial. He pleaded that our law punishes those cases where a person gives false evidence either against or in favour of the accused which necessarily meant that the person giving false evidence could not be the accused himself. The law would have used a different expression had it wanted to punish a person giving false evidence in his own trial.

The Criminal Court agreed with Bartolo’s observations but rejected his plea. The Court explained that prior to the amendments introduced in our Criminal Code by Ordinance VIII of 1909, the person accused was not a competent witness and thus could not tender his evidence. Article 634 of the Criminal Code, which makes the person charged or accused a competent though not compellable witness, was introduced by this Ordinance.3 The provisions dealing with perjury in criminal trials have formed part of the Criminal Code ever since it was promulgated in 1854, therefore at a time when the accused could not tender evidence in his own trial. This explains the legislator’s choice of words.

The Court thus decided that since the accused is now a competent witness, if he chooses to take the witness stand and give false evidence, he is guilty of the offence of perjury just like any other witness.

3 Vide, passim, Mercieca, Sir Arturo, Le Mie Vicende, 1946, pp. 78-79

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3. A cause The false testimony must be given in a cause. The provisions of the Criminal Code dealing with perjury, as originally promulgated in 1854, spoke of a ‘cause’. The matter as to which proceedings fall within the meaning of a cause has always been the subject of debate. For example, Falzon examined the issue as to whether proceedings before the Gran Corte Vescovile constituted a civil or a criminal cause for the purposes of this offence and came to the conclusion that they were not civil nor criminal proceedings. On the other hand he opines that false testimony before a Court Martial amounted to perjury since proceedings before this court could lead to the punishments established in ordinary cases. 4 Prof. Mamo defines a cause as ‘contentious proceedings which call for a decision.’ He writes that, consequently, false evidence given in the inquiry relating to the in genere or before a court of voluntary jurisdiction does not constitute perjury.5 The 1942 Revised Edition of the Laws of Malta introduced the terms ‘civil proceedings’ and ‘criminal proceedings’ to replace the terms ‘civil cause’ and ‘criminal cause’. In the judgment Ir-Repubblika ta’ Malta vs.

Dr. Lawrence Pullicino (07.02.1991), the Court of Criminal Appeal observed that the terms of reference of the Commission set up by Malta Statute Law Revision Ordinance, 1936 did not include changing the meaning of the provisions of the law. This basically means that the terms civil proceedings and criminal proceedings must necessarily be understood as civil cause and criminal cause since they were not changed by a specific amendment.

An interesting matter that was discussed in the judgment Ir-Repubblika ta’ Malta vs. Nikola sive Nicholas Cutajar (31.07.1996) was whether false evidence given in the course of bail proceedings constituted the offence of perjury. On the basis of the interpretation given in the Pullicino judgment, the Court of Criminal Appeal held that the terms ‘a criminal cause’ did not include bail proceedings and confirmed the Criminal Court’s decision to

4 Falzon, Avv. Giuseppe, Annotazioni alle Leggi Criminali, op. cit., pp. 203-204 5 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 61.

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annul a count of the bill of indictment dealing with perjury.6 Prof. Mamo also opines that false evidence given before the Court of Magistrates sitting as a court of criminal inquiry does not give rise to perjury because these proceedings are not a cause.7 Years later, this matter was discussed in the judgment Il-Pulizija vs. Joseph Picco (20.03.1998). Picco was acquitted of the offence of perjury since the false testimony was tendered in the course of the criminal inquiry.

This string of judgments sparked off a debate regarding the efficiency of the provisions dealing with perjury and false swearing. The situation was addressed by amendments introduced in the Criminal Code by means of Act III of 2002. Article 100 now states that ‘criminal proceedings’ includes, inter alia, the inquiry referred to in Sub-title II of Title II of Part I of Book Second of the Criminal Code, namely the criminal inquiry conducted by the Court of Magistrates asa court of criminal inquiry.

4. Oath In our law, which follows English law in this matter, if the false testimony is not given on oath, the offence of perjury will not subsist. In Italian law, the oath is not required for the offence of falsa testimonianza. In the Codice Zanardelli, although the oath was not required, if the falsa testimonianza was given on oath it carried a greater punishment than if given without oath. In the Codice Rocco, falsa testimonianza given on oath is not even considered to be an aggravating circumstance. Antolisei is very critical of this current situation:

6 In this judgment the Court of Criminal Appeal also annulled a count dealing with false swearing since the alleged false testimony had been tendered before a ‘judge’ and Article 108, at the time, only spoke of a false oath before a ‘magistrate or any other officer authorized by law to administeroaths’.

7 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 61.

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Ne è derivata nel c.p.p. Rocco – in contrasto con ciò che si verifica nella maggior parte delle legislazioni moderne – la svalutazione di quell’atto solenne che è il giuramento, svalutazione che a noi è sempre apparsa né razionalmente giustificabile, né opportuna e che nel c.p.p. Vassalli (art. 497 n. 2), risulta accentuata essendos.8

5.

The oath must be lawfully administered by the competent authority According to Article 58(3) of the Code of Organization and Civil Procedure the court registrar, the principal assistant registrar, assistant registrars or deputy registrars, who administer the oath to the person about to offer evidence, are competent authorities to administer the oath.

Article 631(1) of the Criminal Code and Article 111 of Code of Organization and Civil Procedure provide that a witness professing the Roman Catholic faith shall be sworn according to the custom of those who belong to that faith and a witness not professing that faith shall be sworn in the manner which he considers most binding on his conscience. Article 632 of the former Code and Article 112 of the latter Code then deal with the form of the oath, i.e. that the evidence given shall be the truth, the whole truth, and nothing but the truth. According to Article 114 of the Code of Organization and Civil Procedure (rendered applicable to criminal proceedings by means of Article 520 of the Criminal Code) the oath shall in all cases be taken personally by the person to be sworn. According to Articles 577, 596 and 672 of the Code of Organization and Civil Procedure, dealing with witnesses, interpreters and referees respectively, the oath is administered to them by the registrar.

A person not wishing to take an oath may make a solemn affirmation to the effect that the evidence given by him shall be the truth, the whole truth, and nothing but the truth. In fact, Article 5(1) of the Affirmations Act (Cap. 245 of the Laws of Malta) states that an affirmation made instead of an oath shall have the same effect as the oath and if any affirmation is false the person 8 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, op. cit., p.465.

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making it shall incur the same punishments, penalties and liabilities as he would have incurred if he had been duly sworn.9 Article 113 of the Code of Organization and Civil Procedure (rendered applicable to criminal proceedings by means of Article 520 of the Criminal Code) gives the Court the power to warn the person about to take the oath about the obligation of the oath and the consequence of perjury.

Falzon, quoting Carrara, states that from a strictly religious point of view the words ‘I swear’ would suffice. However, since a witness may believe that the law simply imposes a duty not to lie about the facts of the case but does not impose a duty of telling the whole truth, the form of the oath as laid down by the law is essential.10

6. False Testimony This element of the offence of perjury is closely linked to the duty to tell the truth, the whole truth and nothing but the truth. Article 372 of the Italian Criminal Code specifically states that falsa testimonianza is either affirming what is false or denying the truth or failing to disclose, in whole or in part, what is known about the facts of the case.Our Criminal Code does not define what the false testimony may consist of; it simply punishes whosoever shall give false evidence. However it is clear that the same rule laid down in the Italian Code applies.

The falsity must be examined in the light of what the person giving evidence perceived with his own senses and not in the light of what actually took place. Antolisei favours this predominant school of thought 9 Article 108 of Cap. 12 of the 1942 Revised Edition of the Laws of Malta used to provide that the solemn declaration or affirmation of any person authorized by law to make a declaration or affirmation instead of taking an oath, shall for the purposes of any punishment established in the preceding sections of Sub-title III, have the same effect as if the person making such declaration or affirmation had been sworn according to law. This provision was repealed by Act XXXV of 1974 – the Affirmations Act. 10 Falzon, Avv. Giuseppe, Annotazioni alle Leggi Criminali, op. cit., pp. 205-206.

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propounded by Carrara:11 ...falsa non è già la deposizione che contrasta con la realtà oggettiva, ma quella che contrasta con ciò che il deponente sa per averlo visto od udito.

Questa soluzione si impone sia perché l’obbligo che la legge prescrive al testimone è di riferire quello che egli ha appreso direttamente coi suoi sensi, sia perché in caso diverso si verrebbero a legittimare le testimonianze create per provare fatti veri,il che per ovvie ragioni non può ammettersi.12 The refusal to give evidence or to answer a particular question constitutes a specific offence contemplated in Article 522(2) of the Criminal Code, but not perjury. Article 522(1) provides that the court may in its discretion guide back to the truth any witness, who shall refuse to be sworn, who shall prevaricate in his evidence, by warning him, by keeping him apart, or even by ordering his arrest. Prior to a recent judgment by the Constitutional Court, Article 522(2) gave the court further powers of arresting and detaining the witness as long as was necessary regarding to the insubordination of the witness as well as the importance of the matter. This provision was in fact declared unconstitutional by the said Court in judgment Giovanni Psaila vs. L-Avukat Generali13 (17.01.2001). Psaila, who had refused to disclose some information before the Court of Magistrates and was consequently detained for a number of days in terms of Article 522(2) claimed that his right to liberty had been violated. The Constitutional Court agreed and held that the detention could not go beyond the hearing of the case. In other words, as soon as the case was adjourned, the person detained had to be released. By means of an amendment introduced by Act III of 2002, Article 522(2) now provides that any witness who refuses to be sworn or to depose when so required by the court commits an offence.

11 Carrara, Francesco, Programma del Corso di Diritto Criminale, Parte Speciale, Vol. V, §§ 2678 & 2698.

12 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, op. cit., pp. 466-467.

13 Giovanni Psaila u b’digriet tad-19/03/98 il-gudizzju gie trasfuz f’isem Alberta Psaila armla ta’ Giovanni Psaila proprio u bhala kuratrici ad litem ta’ uliedha minuri Maria, Luke u Samuel vs.

L-Avukat Generali.

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7. Falsity in a material particular For the offence of perjury to subsist, the falsity must be material to the cause. This requisite is specifically mentioned in English law. On the other hand, it is not mentioned in Italian law but most continental writers argue that this may be implied from the right that the law is seeking to protect, the proper administration of justice. A specific provision in the Codice Toscano stated that falza testimonianza was punished even when it was not material to the cause. However this provision was purposely omitted from the 1889 Italian Criminal Code. Prof. Mamo explains that in such cases there is no possibility of injury and therefore no justification of punishment.14 Majno states: ‘Perché sussista la falsa testimonianza – delitto punito in vista dell’inganno nel quale per esso vien tratta o potrebbe essere tratta la giustizia – è necessario che le circostanze falsamente asserite o maliziosamente taciute siano pertinenti alla causa o influenti sulla decisione di questa…. Il codice italiano non volle riprodotta la disposizione del codice toscano (art. 273, § 2), per la quale era dichiarata punibile anche la falza testimonianza che non avesse potuto influire nella decisione della causa. Non si possono quindi accettare come decisioni di massima, bensì come decisioni di specie, nelle quali per avventura si qualificò impropriamente per irrilevanza in genere la mancanza in concreto del danno, taluni giudicati, i quali appaiono ammettere il principio che l’irrilevanza della deposizione non esclude il reato di falsa testimonianza….’15 According to Article 558 of the Code of Organization and Civil Procedure, all evidence must be relevant to the matter in issue between the parties.

Moreover, according to Article 560(1) the court shall disallow any evidence which it considers to be irrelevant or superfluous. These two provisions are rendered applicable to criminalproceedings by means of Article 520 of the Criminal Code.

14 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 66.

15 Majno, Luigi, Commento al Codice Penale Italiano, Parte Prima, 3° Ed.,1913, Torino, p. 721, § 1113.

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The matter as to what is and what is not material to the cause has been the subject of debate for centuries. There is concurrence between most writers that no a priori rules can be laid down. However it may be safely said that evidence is material to the cause if it could have affected the decision in one way or another.16 Antolisei is of the opinion that evidence is juridically irrelevant both if it is extraneous orinsignificant to the circumstances of the case as well as if it does not have the potential of disturbing the proper course of justice.17

8. The falsity must be harmful or potentially harmful It is irrelevant whether the false evidence did actually influence the decision. For the offence to subsist all that is required is that it had the potential to do so. The fact that the false testimony did not cause any injury does not constitute a defence against a charge of perjury. In the case Il-Pulizija vs. Carmelo Zammit (14.03.1949 – Kollez. XXXIII.iv.840), Zammit was charged with the offence of perjury. Zammit had given evidence to the effect that he was not in debt and it later resulted that he actually did have a number of outstanding debts.

He pleaded, inter alia, that he had not caused any harm by his evidence.

The Criminal Court held: …għalkemm biex il-falz, bin-negazzjoni tal-veru jew birretiċenza, jista’ jiġi mputat bħala delitt hemm bżonn id-dannu, b’din il-kelma “dannu” wieħed m’għandux jifhem id-dannu privat, imma l-offiża għad-dritt pubbliku, konsistenti fid-disprezz talġustizzja, dimostrat u kommess minn min jixhed il-falz.

In this regard Majno states: …il reato di falsa testimonianza è consumato e perfetto stochè 16 Vide Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 67.

17 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, op. cit., pp.467-468.

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fu fatta una falza deposizione atta ad ingannare la giustizia: non si richiede il danno effettivo, risultante da un giudizio erroneo pronunziato al seguito della falsa deposizione.18

9. Criminal Intent Prof. Mamo defines the intentional element of the crime of perjury as the consciousness of uttering a falsehood or of concealing the truth. The falsity must be deliberate and intentional. In other words if a person gives false evidence unintentionally, erroneously or due to forgetfulness, the offence of perjury does not subsist because inadvertance, error and forgetfulness negate the criminal intention required for this offence. A witness acting in good faith cannot contract liability for this offence. Antolisei defines the mental element required as follows: Esso consiste nella coscienza e volontà di affermare il falso, di negare il vero, oppure di tacere, in tutto o in parte, ciò che si sa.

Naturalmente il dolo è escluso dall’errore di fatto, il quale può anche essere determinato da dimenticanza, come di frequente accade inpratica.19 In the judgment Il-Pulizija vs. Giuseppa Taljana (17.01.1953 – Kollez.

XXXVII.iv.1017), where serious doubts had arisen as to appellant’s intention to commit the offence, the Criminal Court held: Ma għandux jintnesa li l-falz jeħtieġ, biex jiġi nkriminat bħala tali, li jiġi attestat ‘xjentement’, u żball jeskludi l-element intenzjonali. Kif josserva l-Carrara (Progr. Parte Speciale, Vol. V, para. 2678), ‘la falsità del deposto non deve cercarsi nella proposizione affermata dal testimonio, ma nel rapporto fra quella proposizione e lo stato dicredenza della mente del testimone’ Does a person who gives false evidence in order to save himself or another person commit perjury? This question is answered by an express 18 Majno, Luigi, Commento al Codice Penale Italiano, Parte Prima, op. cit.,p. 722, § 1113.

19 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, op. cit., p.469.

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provision in the Italian Criminal Code. Article 384, which is applicable to perjury as well as to a number of other offences, states that a person [who gives false evidence in the case of perjury] is not punishable if he does so to save himself or a close relative from a grave and inevitable injury to liberty or reputation.

Under Italian law, such a situation is considered to be a form of necessity.

Antolisei is very critical of this situation and opines that it would have been wiser had the legislator considered such a predicament as an extenuating circumstance affording a mitigation in punishment. 20 Prof. Mamo makes a distinction between the case where the false testimony is given by the accused and where it is given by any other witness.

The accused is a competent but not a compellable witness. If he chooses to give evidence, he is liable to answer any questions that tend to incriminate him of the offence with which he is charged.

Therefore, if he opts to take the witness stand, knowing the potential repercussions, he becomes guilty of perjury if he gives false evidence in order not to incriminate himself. 21 In the case Il-Pulizija vs. Rita Portelli (08.03.1948 – Kollez. XXXIII.iv.662), Portelli had falsely denied that she had an extra-marital relationship during separation proceedings. She argued that she had done so not to expose herself to criminal proceedings. The Criminal Court pointed out that somejurists considered that in such cases the defence of necessity was applicable. However their point of view was discarded since the defence of necessity applies to material and not moral danger. Moreover, in Maltese law, the defence of necessity is limited to the cases mentioned in Article 223 of the Criminal Code.

In the case of ordinary witnesses called to give evidence in a criminal or a civil case, it is a fundamental rule that they cannot be compelledto answer any question which tends to expose them to criminal prosecution (Article 643 of the Criminal Code and Article 589 of the Code of Organization and Civil Procedure). This necessarily means that a witness who waives his right to such a privilege and gives false testimony becomes guilty of the offence 20 Ibid., p. 501.

21 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 69.

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of perjury. Prof. Mamo opines that the same rule applies to the accused with regard to replies that might incriminate him of an offence other than that with which hestands charged. 22 Article 384 of the Italian Criminal Code contemplates the situation of false testimony by a witness who claims the privilege of non self-incrimination yet is wrongly compelled by the court to give a reply. This provision states that a person who should not be asked to give evidence or should have been warned of his right not to give evidence is exempt from punishment if he does give false evidence. This would also seem to be the position under our law. 23 Article 633(2) of the Criminal Code provides that it is within the Court’s discretion not to compel a witness to depose against a close relative if he is unwilling to do so. However if the Court does not see fit to exercise such discretion, any witness who gives false evidence is guilty of perjury.174

10. Retraction By an express provision in the Italian Criminal Code (Article 376), retraction is a cause of extinction of punishment. Our Criminal Code does not contain any such provision but this principle has long been accepted by doctrine and by our Courts. Prof. Mamo aptly explains the reasons for this principle in the following terms: ...the several parts of a testimony form together one indivisable whole, such testimony cannot be considered complete and irrevocable except when the discussion of the cause in which it is given is definitely closed. A witness who retracts any untruthful deposition before it has caused to the community or to the individual an irreparable injury, thereby voluntarily negatives the

22 ibid., p. 69.

23 ibid., p. 69.

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effects thereof. 24 The first reported judgment where this principle was accepted is Rex vs. Pawlu Borg (18.12.1942)25 . The Court held that retraction, if timely, negates the offences, and it is timely if made before the termination of the proceedings. This principle may also be inferred from Article 602(1) of the Code of Organization and Civil Procedure (rendered applicable to criminal proceedings by means of Article 645 of the Criminal Code) which provides that if the witness or interpreter, at any time before the hearing of the cause is concluded, wishes to make any addition or correction, the court shall allow such addition or correction and shall give weight thereto according to circumstances. It is clear from this provision that the witness or interpreter mayretract before the hearing of the cause is concluded. Any retraction made after this stage will not avail the witness who originally gave false evidence.

In the judgment Il-Pulizija vs. Marzouki Hachemi Beya Bent Abdellatif (22.10.2001), the Court of Criminal Appeal held that the fact that retraction is a cause of extinction of the offence may also be inferred from subarticle (3) read in conjunction with the proviso of subarticle (2) of Article 104 of our Criminal Code. 26 The proviso of Article 104(2) stated that if the false evidence was given in proceedings for a crime liable to the punishment of death, the false witness shall be liable to imprisonment for life. Article 104(3) stated that where the person accused shall have been sentenced to death, ifthe false witness retracts his false evidence in time to suspend the execution, he will be liable to imprisonment for a term from four tosix years. Notwithstanding that these provisions have today been deleted, the arguments inferred from them are still valid.

We saw that according to Article 522(1) of the Criminal Code, the court may guide back to the truth any witness who shall prevaricate in his evidence, by warning him, or by keeping him apart, or even by ordering his arrest. Would retraction in these circumstances avail the witness giving false evidence 24 Mamo, Prof. A.J., Notes on Criminal Law, Vol. II, op. cit., p. 70.

25 Harding, Mr. Justice W., Recent Criminal Cases Annotated, 1943, § 36, pp. 72-75.

26 These provisions were deleted by Act III of 2002 and Act XVI of 2006 respectively.

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or does the retraction have to be spontaneous? Mr. Justice W. Harding27 is of the opinion that it is enough for the retraction to be voluntary. Antolisei shares the same opinion and adds that the retraction must be complete. It is therefore insufficient if the witness who would have previously given false evidence simply expresses doubts as to his previous testimony. 28

27 Harding, Mr. Justice W., Recent Criminal Cases Annotated, op. cit., p. 75.

28 Antolisei F., Manuale di Diritto Penale, Parte Speciale – II, op. cit., p.471

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