Criminal Law

Criminal Offence may be defined as a legal wrong which exposes the doer to a punishment to be inflicted upon criminal proceedings. While a crime is often also an injury to a private person who has a remedy in civil action, a criminal offence is as an act or default contrary to the order, peace and wellbeing of society.

Maltese law distinguishes between criminal offences according to their degree of importance. The more heinous offences are crimes whereas less detestable offences are referred to as contraventions. The most reliable and practical test which could be adopted in order to differ between the two classes of criminal offences is the quality or degree of the punishment which the particular offence attracts. In this respect, the Maltese Criminal Code dictates that crimes are punishable by imprisonment, solitary confinement, interdiction and fines (multa) whilst contraventions are punishable by detentions, fines (ammenda), reprimands and admonitions.

A criminal act alone does not amount to guilt unless such act is accompanied by the guilty mind. In simple terms, there are two conditions which must be proven beyond reasonable doubt before criminal responsibility can rightly be imposed:

(i) the material condition – the doing of the act; and

(ii) the formal condition – the mental attitude of the doer.

This is very important for they may be instances where although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent.

Every person suspected or accused of having committed a criminal offence is presumed innocent until the decision on the final determination of whether that person has committed the criminal offence becomes definitive. As long as this presumption applies, public statements made by public authorities and judicial decision shall not refer to that person as being guilty. Due to such presumption, the burden of proof for establishing the guilt of suspects or the accused, unless the law states otherwise, shall lie with the prosecution.

Criminal Negligence is the voluntary failure to take care in estimating the probable and foreseeable consequences of one’s acts. The essence of criminal negligence is made to consist in the possibility of foreseeing an event which has not been foreseen and the agent did not intend or desire the act in question, but could have foreseen it as a consequence of his act if he only had minded.

A distinction is to be made between gross negligence, ordinary negligence and slight negligence. Gross negligence reference to instances where the event could have been foreseen by anyone. Ordinary negligence refers to events which could have been foreseen by the reasonable prudent man whereas slight negligence refers to those scenarios and events which could not have been foreseen except by the use of extraordinary and uncommon care. Under Maltese law, slight negligence does not give rise to criminal liability.

Under Maltese law, a minor under 14 years of age is exempt from criminal responsibility for any act or omission. However, in those criminal cases involving minors under 14 years, The Executive Police may file an application before our Courts and request the Court to bind over the parents or the carers of the minor in question under penalty under penalty for non-compliance if the fact alleged to have been committed by the minor is proved. The Court may also award the punishment against the parent or carer of the child, if it is proven that the fact could have been avoided by their diligence. Minors under 16 years of age are also exempt from criminal responsibility for any act or omission done without any mischievous discretion. In those cases where it is sufficiently proven that the child acted with mischievous discretion or if the minor is aged between 16 and 18 years, the applicable punishment is decreased by 1 or 2 degrees.

Drunkenness produces confusion of mind, of various degrees, according to the amount of alcohol taken and other circumstances. The general rule is that intoxication does not constitute a defence to any criminal charge. Nonetheless, the defence of intoxication may be pleaded successfully when it is sufficiently proven that at the time of the crime, the perpetrator was incapable of understanding and that the state of intoxication was caused without his consent but by the malicious or negligent act of a third party. It may also be successful whenever it is proven that due to the intoxication levels, the perpetrator was in a state of insanity at the time of the crime. The term intoxication includes a state produced by narcotics or drugs.

Our law dictates that no offence is committed where a homicide or bodily harm is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person. Every person has an inherent right of personal security, consisting in the enjoyment of his life, hod body and his limbs. The raison d’etre behind such defence lies in the fact that whenever the state fails to protect the individual, that individual is entitled to resist by force any aggression. However, for such lea to be raised successfully, it is pivotal to prove that the evil threatened was unjust, grave and inevitable.

Any person is deemed to be an accomplice in a crime if he:

a) Instructs another to commit a crime;

b) Incites the commission of the crime or gives instructions for the commission of the crime;

c) Provides the weapons or other means used in the crime, knowing that such means to be so used;

d) In any other manner consciously assisted the perpetrator of the crime by means of which the crime was prepared or completed;

e) Instigates the determination of the perpetrator to commit the crime or promises his assistance or a reward after the commission of the crime

The general rule is that the accomplice in a crime is liable to the same punishment established for the perpetrator.

Our Criminal Code does not define perjury. However through jurisprudence, it is now ascertained that the crime of perjury refers to a crime when a person, knowingly, gives false testimony under oath in a cause, whether civil or criminal. The term ‘testimony’ refers to any statement or deposition or declaration made before a Court and/or tribunal in judicial proceedings according to law. The perpetrators of such crime may be ordinary witnesses, the person charged in criminal proceedings or any of the parties in a civil cause. Contrastingly, if the testimony is not given on oath, no statement or affirmation however false will constitute this crime.

Rape is defined under our Criminal Code as non-consensual carnal connection, including vaginal, anal or oral penetration with any organ of the body of another person. Penetration with any bodily part shall be deemed to be complete by its commencement and it shall not be necessary to prove any further acts. Such acts shall be deemed to be non-consensual unless consent was given voluntarily, as a result of the person’s free will, assessed in the context of the surrounding circumstances and the state of that person at the time whilst taking into account that person’s emotional and psychological state.

The term ‘sexual grooming’ refers to the means by which a sexual predator cultivates a connection with a potential victim. Through grooming, the abuser builds trust and a sentimental relationship with the targeted victim in order to exploit and abuse him/her. Grooming can develop online as well as in person, by a stranger or by someone known. It involves the perpetrator building a friendship with a child, and sometimes with his family, gaining their trust and a position of power over the child, in preparation for abuse. This may take place in a matter of minutes or over long periods of time, in some cases, years. Under Maltese law, any adult who meets or communicates with a person under 16 years of age and intending to do anything to said person which if done may induce minors to prostitution or encourages participation in sexual activities may be found guilty and sentenced up to 6 years imprisonment.

Under domestic criminal law, whosoever, by any food, drink, medicine, violence or any other means causes the miscarriage any woman with child, irrespective of whether such woman is consenting or otherwise to such actions, shall be liable to imprisonment for a term up to 3 years. The same punishment is also applicable to any woman who procures her own miscarriage or who has consented to the use of any means by which a miscarriage is caused. As of yet, any physician, surgeon or obstetrician who knowingly prescribes any means by which a miscarriage is caused shall be liable to imprisonment for a term not exceeding 4 years.

The Police may search any person or vehicle in a public place or in any other place where the public is admitted, if they have reasonable suspicion that the search will result in the discovery of prohibited items, items which are stolen or acquired from a criminal offence of any item which may have been used in the commission of an offence. The person or vehicle shall be stopped until the search is complete and the Police have the power to seize any item discovered, the possession of which is prohibited. However in the case where the search is to be performed on an unattended vehicle, and no contact could be made to its registered owner in order to attend on site, the search may take place if a warrant is issued by a superior officer not below the rank of an inspector. Unless it is indispensable, no officer is authorised to search a person of the opposite sex.