iv. Failure of Magistrate to Attend to Complaint of Illegal Detention

Inspector cannot enter any house, building or enclosure for the purpose of affecting any search therein or arresting any person who has committed or is suspected of having committed an offence without an order in writing from a superior officer. Other officers are also authorised to enter premises by special laws. Thus, for instance, section 68 of the Customs Ordinance (Chapter 60) enables Customs officers to enter and search premises for prohibited or uncustomed goods provided they are authorised to do so by a warrant issued by the Attorney-General or by a Magistrate. (Confer also section 80 of the Spirits Ordinance (Chapter 64); section 12 of the Official Secrets Ordinance (Chapter 82), etc.)

Now the offence under discussion in its simple form is committed by the mere unwarranted entry under colour of office irrespective of any bad motive on the part of the offender. Only, where it is proved that the entry took place for an unlawful purpose or for a private advantage, the punishment is considerably aggravated. Of course, if there is not only an entire absence of improper purpose, but there is also want of “dolus”, the crime would not arise. But what Maino says in commenting on article 148 of the Italian Code of 1889 applies: "Certo a costituire il reato in esame e’ necessario il dolo: ma il dolo vi e’ ogniqualvolta (l’entrata) ma stata fatta volontariamente, e non per pura colpa o per un errore scusabile nell’interpretazione e nell’esecuzione dei doveri inerenti al mondato che la società ha conferito ai pubblici ufficiali per la tutela dei cittadini”205. Excess of or misdirected zeal does not, therefore, necessarily exclude the offence.

iv. Failure of Magistrate to Attend to Complaint of Illegal Detention Section 135 of the Criminal Code lays down that:

“Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours, shall, on conviction, be liable to imprisonment for a term from one to six months."

This provision was introduced as a safeguard of individual liberty. Yet one is bound to make in regard to it the same observation as was made by Chaveau et Helie in regard

205 Op. cit., art. 147, para. 796

to article 119 of the French Code, that is, that it exposes certain deficiencies in our law. This provision requires a Magistrate - under threat of a punishment – “to attend to a lawful complaint touching an unlawful detention”, but we search in vain either in the laws of procedure or elsewhere for a general provision which lays down expressly the powers which a Magistrate, or indeed any Court, could exercise about any such detention upon any such complaint.

In England a most efficacious remedy to obtain release from illegal detention is the writ known as the “Habeas Corpus”. The writ - described as “the principal bulwark of English liberty” - is an order from the Court, usually the Queen's Bench Division, made upon affidavit of the prisoner or someone on his behalf, showing probable grounds for supposing that a case of false imprisonment exists. It directs the person in charge of the prisoner to produce his body before the court in order that he inquire into the reason for the detention; and if the reason given is inadequate the prisoner will be released or bailed. This writ does not generally run in Malta206 .

Our section makes it also an offence for any member of the Executive Police to fail to report to his superior officers within twenty-four hours any complaint made to him of an illegal detention. In this connection reference may be made to Section 365(l) of the Code which lays down that every officer of the Executive Police below the rank of Inspector must, on securing a person arrested, forthwith report the arrest to an officer not below the rank of Inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.

It is also interesting to recall other provisions of special laws concerned with, providing remedies against illegal detention in particular circumstances. Thus, section 5 the White Slave Traffic (Suppression) Ordinance (Chapter 102) lays down that “it shall be lawful for the Commissioner of Police where, in his opinion, there is reasonable cause for him to suspect that a woman or girl is detained, against her will for immoral purposes by any person in any place, to issue a warrant to any police officer not below the rank of Inspector, authorising him to search for such woman or girl and to take her out of such place; and the Commissioner of Police may cause any such woman or

206 Vide Cremona “The Writ of Habeus Corpus and Maltese Law”. “Scientia”, Vol. XIX, No. l, p. 21 et. seq.