Both processes have long been ongoing in Malta, and they will certainly in their own respective way contribute to free up time for our Judges and Magistrates in order to concentrate on the more pressing cases, thus reducing the ever-growing delay in meting out justice, as had been done with the setting up of the Small Claims Tribunals to deal with minor civil matters.
A few persons with no basic legal knowledge have been asking me what, in substance, is the difference between depenalisation and decriminalisation. Depenalised offences are offences that do not reach the punishable unlawful content of a criminal offence but nevertheless appear to be worthy of punishment. They are not imposed with a criminal sanction, but as a legal consequence result in a fine, whereas decriminalisation is the reclassification in the law relating to certain acts or aspects of such to the effect that they are no longer considered a crime, including the removal of criminal penalties in relation to them. Decriminalisation is more concerned with the status of the individual, for example, simple drug possession, abortion, prostitution or assisted suicide, while depenalisation usually refers to a range of offences where there is no victim involved and affect mainly public order issues.
Depenalised offences will now be deemed as administrative offences and be assigned to the Commissioners for Justice. The legal consequences and the actors involved are different. The fine of the administrative offence law as an administrative sanction does not represent a real criminal penalty, since this is reserved to the judiciary. In contrast to criminal law, in which the prosecution of crimes on the basis of the mandatory prosecution system is one of the duties of the public prosecutor’s office, the discretionary prosecution system applies to administrative offences. As a result, the prosecution is at the discretion of the administrative authority such as a local council.
The ongoing depenalisation process should identify innumerable instances of offences scattered in our various Codes, Ordinances, Acts and Regulations that, in their inherent nature, call for their depenalisation and transfer to the jurisdiction of the Commissioners for Justice to be treated as administrative offences. Determining and establishing a capping across the board of the maximum amount of penalty or fine that may be inflicted by a Commissioner for Justice might further help in this process. Charging with an administrative offence, is charging with a violation of the law, but the offence is not serious enough to be considered criminal. Speeding charges, shouting and swearing in public or litter offences are good examples.
Could this depenalisation process somehow negatively impact the constitutional guarantee of the basic principles ensuring the fundamental right to a fair trial and due process? Not really.
Administrative offences proceedings in front of a Commissioner for Justice are subject to appeal. If you disagree with the imposition on you by the Commissioner, you may lodge an appeal to the Magistrates’ Court based on the facts and points of law. The fundamental rights and guarantees you have in administrative offences proceedings are akin to the right to a fair trial.
There are a number of essential fair trial guarantees that apply to administrative offences proceedings in the same way as they do to a criminal trial. Equality of arms, the right to a defence, the right to submit evidence, and the imposition of any penalty being dependent on a finding of guilt are all there. However, some guarantees may be applied less strictly than in a criminal case. The standard applicable to each case will depend on the gravity of the offence and the penalty or fine that can be imposed.
A little bit of fine-tuning to the Commissioners for Justice Act might not go amiss in the above context. The role of our Commissioner for Justice seems to have been heavily inspired by the Justice of the Peace concept found in a number of foreign legal systems wherein the person is not usually required to have any formal legal education or experience in order to qualify for the office, although some jurisdictions have varying forms of training catered for. Our law empowers the Prime Minister to appoint any person as Commissioner for Justice for a renewable period of two years, though in practice those appointed have been mostly, if not all, practising lawyers. Perhaps legislating for having a legal requirement that Commissioners be warranted lawyers (as is the case with adjudicators of Small Claims Tribunals) or possibly even retired Magistrates, and serving for a period longer than two years (as do adjudicators), might provide additional guarantees and safeguards, not to mention peace of mind, to the ordinary citizen.
One should never make short shrift of judicial competence and the accompanying guarantees.
Dr Mark Said is an advocate