Electronic monitoring in a criminal justice system can serve multiple purposes. It is most commonly used as a condition for pre-trial release or post-conviction supervision – like probation or parole.

In other countries, electronic monitoring or tagging has also been used to track juveniles, immigrants awaiting legal proceedings, adults in drug rehabilitation programs and individuals accused or convicted of DUIs or domestic violence.

It can be said that electronic monitoring is a form of ‘digital incarceration’, often in the form of a wrist or ankle bracelet attached to the body that monitors a subject’s movements and location.

There are several expert opinions, some of which define electronic monitoring as useful for the purposes of rehabilitation of offenders. Others instead support its use to serve as a means to alleviate the burden on prison facilities and avoid overcrowding of prisons, a characteristic that many jurisdictions nowadays – Malta included – have a common interest in.

Many defence lawyers in Malta have also proposed the application of this mode of surveillance as an alternative to preventive custody while making submissions to get their clients released on bail. Several Magistrates and Judges in Malta have also flagged the need and pushed for the introduction of electronic tagging to monitor people who are out on bail.

To this day, electronic tagging is still not statutorily recognised as an available condition for pre-trial release. However, in May 2021, the government launched a White Paper on the subject, proposing, inter alia, electronic monitoring of people convicted of minor crimes instead of imprisonment.

This White Paper was fine-tuned and a Bill was subsequently announced in September 2021. Under the new proposed rules, electronic tagging is set to feature in Malta in three select scenarios, namely, when it is ordered by the court as a punishment in and of itself; for use in granting prison leave and when it is used to grant parole on probation.

Electronic tagging is also set to apply in situations where an imprisonment term of not more than a year is imposed for a crime with a maximum punishment of not more than two years.

Moreover, electronic tagging can also be used in order to enforce measures such as restraining orders or protection orders, in which case the consent of the person who will be tagged is not needed.

The tagging system will be administered by the Correctional Services Agency in Malta who will man and maintain a control room and where people are caught trying to interfere with the electronic tag, that will be considered as a crime in itself.

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In March 2020, Legal Notice 72 of 2020, entitled ‘Enforcement of Directions relating to Quarantine (Amendment) Regulations, was published. This Legal Notice sought to revise the pecuniary punishment to be imposed on persons who fail to adhere to COVID-19 measures including any obligatory quarantine periods. Since the coming into force of this Legal Notice, any person who fails to adhere to such measures and/or any obligatory period of quarantine is guilty of an offence and liable to the payment of a penalty of three thousand Euro (€3,000) for each and every occasion that the quarantine period is breached. For clarity’s sake, Regulation 2 of Legal Notice 72 of 2020 holds as follows:

“Any person who fails to abide by the provisions of these regulations shall be guilty of an offence and shall, on conviction, be liable to the payment of a penalty of three thousand euro (€3,000) for each and every occasion that the quarantine period is breached.”

The oddity behind this provision revolves on the term ‘penalty’ and this was precisely the issue that led to the acquittal of the defendant in a tribunal hearing before the Commissioner of Justice which took place on the 27^th of April 2021. This decision, in the names of ‘LESA v. Mario Attard’, could very well create a ripple or domino effect on future tribunal cases with comparable merits and grounded on the same charges.

The afore-cited Regulation 2 of Legal Notice 72 of 2020 makes it amply clear that it is creating a criminal offence. An offence in Malta can either take the form of a ‘crime’ or alternatively a ‘contravention’. In terms of Article 7 of the Maltese Criminal Code, the pecuniary punishments that may be meted out for crimes and contraventions respectively are a fine (multa) and a fine (ammenda). The question therefore remains; the term penalty – used in Regulation 2 of Legal Notice 72 of 2020 – falls under which category of punishment? Is it a fine (multa) of a fine (ammenda)?

To this day, this remains a mystery. What is certain, however, is that nowhere in the Maltese Statute book is the concept of penalty recognised as a punishment that may be meted out for a finding of guilt and this in itself creates legal uncertainty.

In the afore-cited case of ‘LESA v. Mario Attard’ the defendant argued that since the term penalty is not under Maltese law recognised as a form of pecuniary punishment awardable for offences, the fundamental principle of nulla peona sine lege – literally implying ‘no penalty without a law’ – safeguarded by both article 39(8) of the Maltese Constitution and Article 7 of European Convention of Human Rights (ECHR), was violated.

The Commissioner for Justice upheld this plea and proceeded to acquit the defendant Mario Attard.

What changes to the law this decision is set to bring forth, is yet to be seen.

Paralegal Jacob Magri assisted the defendent before the Commissioner of Justice.

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The terms presidential pardon or prerogative of mercy, commonly referred to in Maltese as proklama or maħfra presidenzjali, have in the past couple of months become buzzwords in Malta. As the name itself suggests, a presidential pardon implies clemency or forgiveness. It is an extremely powerful discretionary tool, regulated by article 93 of the Constitution of Malta, vested in the executive arm of the State, specifically the Head of State. A presidential pardon empowers the President, through Cabinet, to assume powers ordinarily vested in the judicial organ of the State. In other words, this powerful tool usurps the functions of the courts of criminal jurisdiction.

Generally, when granted, a presidential pardon either exonerates, conditionally or unconditionally, an individual from criminal prosecution for his/her involvement in a crime or else discontinues the effects of a criminal conviction by, for instance, ordering that an inmate serving an imprisonment sentence be immediately released from prison. The President may also, in terms of article 93 of the Constitution, substitute a less severe form of punishment for any punishment imposed on any person for any offence, at his discretion or owing to a change in law where the relative punishment would have been decreased.

Many a times, presidential pardons are granted in exchange for inside knowledge or information that would help the investigative authorities and prosecutorial bodies secure the convictions of the true masterminds of the crime concerned. Such pardons are generally subjected to a number of conditions, the standard one being that the individual pardoned has to give State evidence and reveal the whole truth in Court and moreso cooperate fully with the prosecution in arriving at the truth. If the person does not abide by any of these lawful conditions, the pardon may be revoked.

Interestingly, contrary to what many might think, while a request for a presidential pardon is on paper addressed to the President, the latter is actually compelled to act on the advice of the Cabinet, generally the minister responsible for justice, prior to granting a pardon. In fact, when the office of the President of Malta receives a request for a presidential pardon, such request is normally communicated to the minister responsible for justice for his advice, who in turn generally consults with other authorities such as the Attorney General or the Commissioner of Police.

What is also noteworthy about the manner in which presidential pardons are granted is that contrary to criminal offences which are tried by independent and impartial courts in a public setting, all discussions and arrangements in connection with presdential pardons take place privately behind closed doors. The consultation carried out, if and when this is done, is normally limited to government ministries, departments, agencies and/or the public administration. Technically speaking, the Cabinet need not even consult with the Attorney General and/or the Commissioner of Police prior to deciding whether or not to grant a prerogative of mercy. Moreover, the public and the media is never consulted as to whether an amnesty should or should not be given and in which circumstances or under what conditions. This makes the exercise rather secretive and partial.

One may, in light of the above, justifiably question the overall fairness of the system of presidential pardons, especially in Malta where the decision-making process is not transparent and is practically left in the hands of polticians. However, on the other end of the spectrum, the importance of the presidential pardon system – which is found in most democratic countries – is undisputed if utilised for humanitarian reasons, inter alia to combat miscarriages of justice and as a tool to ensure that those who commit serious crimes do not escape punishment.

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Over the years organised crime has become increasingly sophisticated. It is highly likely that drug traffickers and members of criminal organisations are aware of police movements and it is quite difficult for the police, under normal circumstances, to infiltrate criminal networks. This is even more so when the criminal network is large and well connected. With no direct known victims or witnesses willing to report the matter to the police, it is very hard to trace certain serious crimes. In order to be able to gather evidence, the investigative authorities are often required to use specialised investigative techniques including controlled deliveries and undercover operations which enable them to gain access to the illegitimate endeavours of those involved in criminal activity.

The controlled delivery mechanism is an investigating technique that was statutorily introduced into Maltese law through the 1994 amendments made to the Dangerous Drugs Ordinance. The article contemplating this investigative technique is Article 30B of the said Ordinance and sub-article (2) of this Article describes a ‘controlled delivery’ as:

“… the technique of allowing an illicit or suspect consignment of a dangerous drug or of money, property or proceeds … to pass out of, through or into Malta, or from one place or person in Malta to another place or person in Malta, or into the territory of another country, with the knowledge and under the supervision of the Executive Police and, where appropriate, of the Customs Authorities and of the competent authorities of such other country, with a view to identifying persons involved in commission of offences under this Ordinance …”

Thus, this technique affords the police the possibility of identifying and cracking down criminal networks with the aim of prosecuting those violating the provisions of the drug legislation. The police may, after obtaining the consent of the Attorney-General or of the Inquiring Magistrate, either allow a drug consignment to pass through, in or out of, Malta or from a person to another, or purchase drugs from a person or a particular place. In the first hypothesis, the police, fully knowing that a drug consignment is being passed through Malta, would allow it to pass in order to ascertain the origin and the ultimate destination of such consignment. In this manner they could well be in a position to identify certain persons involved in the commission of an offence against the Ordinance. In the second hypothesis, the police, even in disguise, would be authorised to purchase drugs from a drug dealer allowing them to arrest the offender red-handed. Such devices are considered necessary in the fight against drug trafficking.

On the other hand, a paper-thin dividing line exists between the controlled dealing in or delivery of drugs and the concept of entrapment. Section 30B is aimed at detecting an offence by giving an opportunity to a would-be offender to commit an offence. There is no external force or inducement to commit an offence other than the actual opportunity to voluntarily commit the offence. Where however, the police are the inducement to commit the offence, or otherwise incite or instigate the commission of the offence, i.e. acting as an agent provocateur, then this falls within the realm of entrapment and not section 30B of the Dangerous Drugs Ordinance.

In Malta, there is no general defence of entrapment. One ought to remember that in controlled dealings of drugs, the police must show some esprit de corps to properly carry out such controlled delivery, rendering the distinction between entrapment and controlled dealings even more difficult. In the judgment: Il-Pulizija v. Emmanuel Vella et, delivered on the 29th of January 1987, the Court of Criminal Appeal held as follows:

“Il-liġi tagħna ma tirrikonoxxi ebda ‘substantive defence of entrapment’ u f’każijiet bħal dawn, il- Qrati tagħna dejjem imxew fuq il-ġurisprudenza Ingliża f’materja ta’ proċedura kriminali u ‘Law of Evidence’, ħlief meta ma ġiex provdut xorta oħra.”

Instigation by the agent provocateur and other means used by the Police to have the accused entrapped are taken into consideration to establish the degree of responsibility especially with regards to sentencing. The Court also takes into consideration the way the person who stands accused has acted when confronted with such situation, in the sense of how ready, willing and predisposed he was to commit the offence. The mitigation in punishment varies according to the circumstances of the case.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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This is the first part of a series about the legal powers of the Executive Police. It will be continued in an article that will be published in the next few weeks.

In every democratic state, the Executive Police plays a fundamental role within the criminal justice system and forms a part of the State’s mechanism for preserving order and upholding the rule of law while assuring that human rights are safeguarded. In order to effectuate their obligations and service at law, police officers are given distinguishing powers to support citizens. Notwithstanding, such powers should be strictly regulated, and the State must strike a balance between police powers and individual rights. This necessitates that the police are to be subject to scrupulous controls.

Public confidence in the Executive Police is vital for an efficient judicial system, This all relies on having police officers respecting the highest level of personal and professional standards of behaviour in their course of duty.

The guidelines issued under the European Convention on Human Rights provides that the main functions of the Executive Police in a state governed by the rule of law are to preserve public serenity and law and order in society while providing service to the public, protect and respect individuals’ fundamental rights and freedoms and to prevent, detect and investigate crime.

The Maltese Criminal Code holds that it is the duty of the Police:

1. To preserve public order and peace;
2. To prevent, detect and investigate offences;
3. To collect evidence, both in favour and against the alleged perpetrators; and
4. To bring offenders before judicial authorities.

While the right to liberty is considered to be one of the fundamental human rights, such right is not absolute. Arrest and detention are the exception to this right. Undoubtedly, the power of arrest is one of the indispensable powers entrusted to the police. Arrest marks the moment where the fundamental right of the individual to be free is opposed by the public necessity to be in the custody of a state authority.

While there is no legal definition of ‘arrest’, prominent jurists define arrest as being ‘the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.’ In other words, an arrest is an operation whereby a person is totally deprived of his/her liberty, whether by being constrained, being forced to go to a particular place, being restrained in a particular place, or by being detained in a public place.

The principles of necessity and proportionality in relation to the use of force when making an arrest are of utmost importance. In fact when making an arrest any brutality should not be used until it is essential to secure the person arrested and to bring the situation under control.

As soon as an arrest is made, the police are legally bound to inform the person that he is under arrest, either immediately or as soon as is sensible. It is worth mentioning that such information is transmitted to the arrested person in a language that he comprehends, if needs be, through the use of an interpreter.

The moment of arrest is followed by a period of detention. During this period, persons reasonably suspected of a crime are cautioned, searched and given the right to consult a lawyer of their choice. The arrested person should also be given the right to have his lawyer present during his interrogation.

Said person may be detained for a maximum period of forty-eight (48) hours. Before the lapse of this time period, the police may set the arrested person free, bring him before a court or else grant the arrested person police bail.

The power to detain people is also an essential police power. Like the power to arrest, the power to detain a suspect is a power which is imperative to allow the police to carry out their duties – especially those of crime prevention and discovery, and the maintenance of public order.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Renè Darmanin on rene@azzopardilegal.eu.

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