The Malta Independent 25 August 2019, Sunday

Judge says time-barring law on offences involving children should be changed

Monday, 5 November 2018, 10:37 Last update: about 11 months ago

A judge has called upon the legislator to change the law on time-barring of offences against children in a sentence acquitting a man of one such charge.

Judge Giovanni Grixti decided a case filed against a man accused of defiling a young relative, ruling that the charges were time barred.

The appellant, whose name was withheld by the court, had been found guilty of defiling a minor, aggravated by the fact that the minor was less than 12 years old at the time. The abuse occurred during a family outing on a boat, where the appellant had removed his swimming trunks in the presence of the minor, ostensibly due to some form of irritation. On other occasions, he had touched the young girl inappropriately over her clothing whilst playing a game in which she had to be blindfolded. In 2010, years after the minor’s coming of age, she had filed a report with the police about the incident which had occurred around 1997 when she was around 10 years old.

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The Criminal code lays down that time bars, also known as “prescriptive periods”, for any offence are only calculated on the basis of the punishment for which the crime is ordinarily subject, not including the aggravating factors.

The crime of corruption of minors is liable by up to 3 years imprisonment, but due to the fact that the girl was under the age of 12, the punishment due was in the 3 to 6 year range. The court observed that the offence was a continuous one, over a period of years, which meant the punishment could be increased further to between 5 and 12 years in jail.

The court also noted that the prescriptive period, which determines whether or not a charge is time-barred is regulated by the punishment for which the offence would be ordinarily liable. This meant that the first court was incorrect when it deemed the charges to fall under the 15 year prescriptive period instead of 10 years, as it had also taken into account the punishment for the aggravating factors.

Answering for all crimes as one crime means that the accused is punished for one crime and not all of them separately, but increased by one or two degrees at the discretion of the court. This benefit for the accused comes at a heavy price though, as the accused can be charged for a string of offences in breach of the same provision of law, spanning several years.

Making reference to case law, the court said it was evident that there are two schools of thought on this matter, “which, in turn, demonstrates that such a fundamental issue is not yet settled at law and needs to be put to rest by the legislator as it can not doubt lead to prejudice to any of the parties in such cases.”

The court said the law was clear in that for the purposes of prescription, regard shall only be had for the punishment to which the crime was ordinarily subject. But the second part of the same article of the law “has given rise and will give rise to further uncertainties unless it is clearly amended by the legislator. Clarity of legislation essential for…the right of a child on attainment of majority”

“It is up to the legislator whether to create the so-called historical crime present in foreign legislations or to set up a prescriptive period to run from the attaining of the age of 18.”

Seeing that the last crime was committed between 1996 1997, it was time barred between 2006 and 2007, said the court, and was not prosecutable. The accused was cleared of all charges.

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