An amendment bill to a 150-year-old Criminal Law act was discussed in Parliament on Tuesday night. The amendment was brought about by a Constitutional Court decision on 9 February this year regarding the unconstitutionality of the procedure which ensues when a defendant is discharged from detention during the compilation of evidence stage, because it is deemed that there is not enough evidence to try him or her.
What currently happens in such situations, Justice and Home Affairs Minister Tonio Borg explained, is that the AG seeks recourse, behind closed doors, with an independent magistrate, “almost as though it were a consultation”, so as to obtain a re-arrest warrant. The defendant is left in the dark, and his/her side is not given a voice. The Constitutional Court found this to be against the right to fair trial, entrenched in the Constitution, as well as the European Convention for Human Rights, even though there were 150 years of cases to say the contrary.
The amendment, Dr Borg went on, rectifies this by making the AG seek recourse with the Criminal Court, in “open court” – this meaning that the defendant is summoned and informed, within one month of the release. The Criminal Court will then hear both the AG as well as the accused, to decide as to whether to effect a re-arrest. The minister stressed that this would not decide the guilt or innocence of the accused, but was simply a matter of transparency in procedure.
As for pending cases where the re-arrest has already been effected, a similar procedure will occur. If the court is of the opinion that at the time of release, the defendant should have been kept in detention, “business will proceed as usual”. On the other hand, if the court thinks otherwise, it is obliged to liberate the person and stop the whole process.
The opposition was in full agreement with this bill, yet they had some reservations. MLP’s main spokesperson for Justice, Anglu Farrugia, voiced his and Labour MP Gavin Gulia’s fears, as to whether a fair hearing would be compromised if the Criminal Trial Magistrate were the same as in the case for “re-arrest”. He was also wary about new evidence being presented in the said case, and a discharge being affected in view of a primary accusation, with a re-arrest upon a secondary accusation. His main concern however was directed towards the case for re-arrest, in that the defendant did not necessarily have to be present, which the Labour Party disagreed with – “it must be clearly evidenced within the bill”.
After trying to dispel these fears, assuring that all would function as is, save for the openness of the recourse, the minister motioned the House into the Committee Stage of the Amendment. Only article 4 was amended, wherein the accused would have to be present at the case for re-arrest, unless with due cause, and if not, will be arrested in order to appear at the hearing for the application. Dr Borg stressed that this was not constitutionally needed, nor should it cause a precedent, but due to the rarity of like cases and at the opposition’s request, he was ready to consent to it.
The bill as amended passed unanimously. It shall now move on to its third reading.