i. Escape by prisoners

circumstances of Malta, with a small and compact territory surrounded by the ocean, severity of punishment is not necessary"212 .

The violation of places of confinement to which the heading refers consists in the escape of prisoners therefrom. For the sake of clarity of exposition we will discuss the whole subject:

(i) With regard to these who being in custody, under arrest or sentence, effect their own escape.

(ii) With regard to those who, being bound to prevent such escape, neglect or betray such duty.; and

(iii) With regard to those who, not being bound as above said aid or abet such escape.

i. Escape by prisoners

In connection with the first enquiry, it is essential to premise certain distinctions which are of fundamental importance in the matter. In the first place the escape is either simple or aggravated; there is the former when the escape is affected without the use of violence to the person or breach of prison: there is the second when the escape is effected by breach of prison or by means of violence to the person.

A second distinction is to be made between persons confined merely under custody as those charged with an offence and awaiting trial and those serving a punishment as under a sentence.

Now, most systems of positive law, following the more commonly accepted doctrine, do not consider as a criminal offence the simple escape from prison of persons detained therein only under custody. The law condones the prisoner who takes advantage of an opportunity offered to him to make his escape following a natural instinct urging him to re-acquire his lost liberty.

212 Report 1, XXll

Troppa virtù si pretenderebbe dagli esseri umani, se si esigesse che continuassero a rimanere in un carcere, malgrado che aperto si presentasse loro la via per uscirne, e per sottrarsi così dagli affanni e dei pericoli di un giudizio che soprasta”213 .

and Carrara says:

La esimizione di persona o la evasione, quando si obiettano allo stesso arrestato o detenuto, non sono generalmente considerate come delitto, se l’elemento criminoso non si trova noi mezzi adoperati. Il reo che per pigliare il largo usa artifizi o profotti della negligenza dei Buoi custodi, obbedisce ad una legge dì natura, ed e’ scusato: la legge serba il suo rigore contro i custodi o negligenti o corrotti"214 .

Our law is fully in accordance with this doctrine. It does not visit with any punishment the simple escape from places of confinement of persons who are under arrest or in custody but not yet condemned by a sentence of a Competent court. This clearly emerges from sec. 149 Criminal Code which deals with the crime of simple escape and limits it only to "any person under sentence"215 . In Rex vs Zammit216 , H.M’s Criminal Court held that the vehicle used for the removal of prisoners must be considered as a place of custody and an extension of the prison; and any simple escape therefrom by a person who has not yet been sentenced is not punishable. This is the interpretation to be given, the Court said, to sec. 13 of the prisons ordinance (Cap. 44)

But the escape though simple of a person under sentence is punishable. Although the natural impulse to re-acquire the lost liberty is always identical whether the person is merely in custody or under arrest or whether he is under sentence, other overriding reasons make it expedient to subject the latter to punishment. A person under a sentence who escapes from the place appointed for his punishment violates the obligation arising out of a solemn judgement given against him by the competent public authority.

213 Roberti, op. cit., Vol. VI, pg. 153 214 Op. cit., para. 2813 215 V. Rex vs Mercieca, 25/4/1924: "Law Reports Vol. XXV, Part IV, para. 8671, Criminal Appeal; "Police vs Sacco 28/12/1942 216 11/7/1907

He, as some writers put it, tries to evade a debt which he has contracted towards the community to suffer the punishment for the offence committed and of which he has been found guilty. Moreover, the alarm which the escape of a criminal, proved as such in the ordinary process of law, causes in the public is much greater than the alarm caused by the escape of a person who is still merely suspected of or charged with an offence but may yet prove to be innocent.

And when the said sec. 149 Criminal Code speaks of the escape of a person "under sentence", these words must be understood as referring only to persons sentenced to a punishment restrictive of personal liberty and not to a mere pecuniary punishment. A person sentenced to a fine who makes default in the payment thereof cannot be considered as a person "under sentence" for the purpose of the said sec. 149 until that punishment is converted into one restrictive of personal liberty217 .

Moreover, by person "under sentence" is meant a person against whom a final and absolute sentence has been given which can be carried into execution. A person who escapes while an appeal is pending from his sentence could not be punished under sec. 147218 .

Aggravated escape constitutes a crime whether it is effected by a person under arrest or by a person under sentence. Sec. 150 lays down:

Whosoever shall be guilty of escape from any place of confinement or punishment, shall, when the escape has been effected by violence on the person, or with breach of such place, be liable, on conviction, to imprisonment for a term from thirteen months to two years.

The law speaks of "violence" on " the person" without any specification. It is controverted whether the expression includes, besides the use of physical force, also moral coercion. Raniero Babboni thinks that the better answer is in the negative, because the Code generally makes express mention of threats when these are considered as a sufficient element or an aggravating circumstance of an offence219 . Other writers, however, take the view which we submit is more acceptable - that "in

217 Cfr. Rex vs. Mercieca above quoted 218 Maino, op. cit., art. 826, para. 1172; Roberti, Vol. VI., para. 028, pg. 155 219 Dei Delitti contro l’amministrazione della Giustizia in "Tratto di Diretto Penale”, Vol. V., pg. 283

quanto alla violenza per la medesima si comprende qualunque via di fatto, qualunque minaccia avente per oggetto di passalizzare o di influirenoralmente sulla guardia e la vigilanza dei custodi"220 .

By "breach of the place” of confinement or punishment, the law means the overthrowing down, breaking demolishing, burning, wrenching, twisting or forcing of any wall roof, bolt, padlock, door whether internal or external, or other contrivance, intended to secure the place. But the breaking must be of the place itself; it is therefore generally thought that the breaking of a chain, for instance, or manacles intended to secure the person of the prisoner does not constitute this form of aggravated escape. And, again, there must be actual breaking in above sense; merely getting over the wall or ceiling, or passing out through a door by false keys or the like and without violence on the person is a simple escape and not a breach of prison or aggravated escape221 . Moreover, the breaking must be made by the fugitive himself or with his participation; in other words the provision relating to aggravated escape does not apply to a prisoner who merely avails himself of a breaking previously committed by others without his participation222 .

Finally, with regard to simple escape, the crime is completed when the fugitive actually regains his liberty. So long as the prisoner is still within the outer boundaries and the precincts of the prison and is followed by the gaolers and apprehended, he is not guilty of the completed offence of escape but may be guilty of an attempt223 . In the case of breach prison, however, the crime is completed so soon as the prisoner breaks out of his place of custody, even though actual escape may have been detected and prevented in time224 . Among continental writers the question is discussed whether the provisions relating to escape from prison apply to the escape of a person imprisoned for debt. The prevalent view is that they do not: for the escape of a debtor arrested for debt does not cause, like that of a delinquent or presumed delinquent, public alarm sufficient to require penal repression225, and moreover Italian writers point out the

220 Falzon, op. cit., pg. 348, para. 712 221 Archbold, op. cit., para. 1212; Carrara, op. cit., Vol V, para. 2811 et. Seq. 222 Chaveau et Helie op. cit., Vol. III, n. 1016; Maino, op. cit., art. 226, para. 1169 223 Carrara, op. cit., para. 2815 224 Carrara, ibid., para. 2619 225 V. Chaveau et Helie Vol III, n. 1013 & 1024; Maino loc., cit., para. 1167