by Elaine Attard
Article published on 29 November 2011
A bill being published today proposes that the courts be given the power to stop legal proceedings after considering the age of the parties involved in cases of corruption of minors.
When the victim is aged between 16 and 18 years of age, the court would consider whether the encounter was consensual, the age and maturity difference between the victim and the abuser and also the physical and psychological development. The court would also consider whether there was some form of remuneration, pornography or prostitution involved.
Following an extensive debate on the age of consent in the media, it was proposed to give the courts more space to discern and take a more balanced decision in cases involving corruption of minors, Justice and Home Affairs Minister Carm Mifsud Bonnici said when presenting a number of criminal law amendments, yesterday afternoon.
The bill was given a first reading in parliament yesterday.
It includes some 127 clauses and over 100 proposals amending the Criminal Code, the Medical Profession Ordinance, the Explosives Ordinance, the Prostitution Ordinance, the Dangerous Drugs Ordinance, the Police Act, the Immigration Act, the Money Laundering Act and the Probation Act.
Another proposal that would affect young people is for the age of criminal responsibility to be raised from 9 to 14. Additionally, for legal action to be taken against young people aged between 14 and 16 the prosecution has to prove that the crime was carried out maliciously and if the teenager is found guilty then the punishment is reduced by one or two degrees.
Most amendments proposed are keeping in mind that the restorative justice and parole system will be introduced soon, Dr Mifusd Bonnici explained to journalists.
Formal warning for drug possession for exclusive use
It is being proposed that those caught with drug possession for their exclusive use will be given a formal warning by the Attorney General and their case will be considered by a drug abuse and rehabilitation consultative committee that would recommend whether the offender needs a rehabilitation programme or not.
The Justice Ministry plans to formalise the Drugs Court following the introduction of specialised courts system. It is also being proposed to make the drug Khat illegal and to empower the court to order the freezing of properties in drug related cases.
The proposals make way for the Malta Police Association to be converted into a police union without the right to strike or associate itself with other unions. The union will only have the power to negotiate its police officers conditions within collective bargaining limits.
An interesting development is the increase in punishment for crimes against police officers or public officials. Suspended sentences cannot be given for such cases and the punishment will increase by two degrees.
However, public officials found guilty of corruption or abuse will get a harsher sentence too, to discourage individuals in influential positions from committing crimes.
Homophobic and crimes against democracy
Following discussions with the Malta Gay Rights Movement, it has been agreed that crimes motivated by homophobia should be considered on the same level as crimes motivated by racism. If it is proved that crime is motivated by homophobia the punishment is increased by a degree or two.
With the waning memory of World War II and after the planned massacre on the small Norwegian island of Utoya, earlier this year, punishment for crimes undermining democracy and extremism, has increased from six months to five years. Fines have also been increased from €230.94 to €5,000. This legal development follows the trends in other European countries, commented Dr Mifsud Bonnici.
Those convicted of vandalism on public monuments and cemeteries will also risk a harsher penalty of up to 18 months imprisonment and a fine of up to €5,000.
Persons found guilty of fraud, human trafficking, terrorism financing, prostitution, and crimes against the environment will also get harsher penalties
Although Maltese criminal law does not have a plea bargaining system, it is normal practice that the prosecution and the defence agree on the ideal sentence to be given to the accused. Although the agreed sentence is often used in court when the accused admits guilt early on in the court proceedings, so far this is not legally regularised, Dr Mifsud Bonnici explained. The proposal will empower the courts to consider the agreed sentence proposed by the prosecution and the defence, however, this does not mean that the courts would be influenced by the agreement presented. This development follows the good practices registered in the criminal courts, he said.