It’s the week where the United Nations commemorated the World Day of Social Justice and spoke of the frayed social contract unleashed by increased prices of commodities, world conflict, weak institutions and post-Covid ever-widening economic, work and gender gaps.  

I’m writing this piece thanks to an invitation to speak about social justice in Parliament that Mosta MP Ivan Bartolo took up himself to organise on Thursday morning. I’m indebted to the opportunity.

The UN’s focus on what it called challenges and bottlenecks to overcome the increasing rise in inequality, and in particular the erosion of social protection, needs further highlighting.

I spoke about the point where social justice coincides with criminal justice, where instances of persons brought before the court for stealing a can of tuna seem to be on the increase This issue needs addressing. It’s a reality that a carefully manicured picture of a reduction in crime statistics conveniently overlooks. The crime of a simple act of theft and one where millions are siphoned through money laundering show up equally on the table but it is prosecuting the shoplifter that is easier to prove and shows up as a successful outcome, distorting the picture. This does not address the situation correctly, and hence my point.

The UN’s first two sustainable development goals concern the reduction in poverty and hunger. So let’s start with this premise for background. Shoplifting has been on the increase lately and the active presence of security officers is noticeable, at least for the discerning. There are two types of cases of pilfering of food and basic everyday items: the genuine social cases and the habitual ones. Both are reported to the police and prosecuted, and this is where the system can be revised.

Purely social cases can be discerned through an impact report. It’s not a matter of excusing the offence but of addressing the social reality and handling the case differently. Our criminal laws provide for a suspended sentence but how about diverting the cases away from the system and dealing with them socially first? And amending the law accordingly to grant discretion to the agencies involved, whether it’s the police or social workers.

The Social Welfare Development Programme, or Aġenzija Appoġġ’s predecessor, had come up with a system of handling juvenile delinquents through an inter-agency procedure where the police would not prosecute minors but refer them to the SWDP. I remember the police circular detailing the procedure and referring more than a handful of cases when I was stationed in the district. How about applying the same system and concept to the genuine social cases and have such offenders dealt with through the social system first?

At present, the Criminal Code establishes in article 285 a six month imprisonment term for simple theft and a further cut-off point of €23.29 in value of the thing stolen, where the maximum imprisonment term is that of three months. How about introducing the concept of police discretion in averting prosecution of such cases and dealing with them at the social level first? The chance of returning the item if still intact or the equivalent in value would be the focus of this exercise and a social contract drawn up involving community work, to be supervised by the respective agencies. The number of hours of such service could be established by the professionals depending on the contextual assessment. So there would still be a form of social pay-back, and it would involve paying it to the community as a whole.

Consider the alternative of a successful prosecution of simple theft: it would be inputted in the person’s police records and the conduct certificate would reflect that, hence the chances of retaining one’s employment or finding one would be seriously impacted. That’s the equivalent of a downward spiral and opening the door to an escalating poverty and more chances of pilfering.

The cut-off line of article 285 could be increased to €50 to reflect the current rise in prices rather than the equivalent of the old ten liri or €23.29. Even these numbers need revising.

The key is the robust social handling of the case. If there is enough will on the offender’s part to follow the exercise and referrals that help the person divert his or her course of action, it could result in a one-off. If the person defaults after such a chance, then the prosecution route gets triggered, with the police recommending the higher punishment to the court.

It's interesting how article 285 was first amended in 1971, according to the marginal note in the law. It means that it was in place upon enactment in 1854. Perhaps it’s time to revise this approach and let social justice and criminal justice converge into a practical reflection of our current poverty situation.