There will be an automatic reduction in the degree of punishment if the accused admits guilt during Compilation of Evidence procedures, a consultation document proposed recently.

Legal sources informed The Malta Independent on Sunday that although this incentive would help speed up the judicial system and create uniformity in punishments, it could also be problematic by being unfair to the victim as it removes the judge’s discretion to make a decision based on the case.

The document titled Reform of the compilation of evidence and referral procedures seeks to accelerate the Compilation of Evidence procedures, with a maximum limit of a one-year timeframe. The government launched this document on 18 April and public consultation for this document closed on Wednesday.

The period known as the compilation of evidence (criminal inquiry), refers to the early stages of a criminal case, where prosecutors must bring enough evidence forward to convince the court to charge the person with a crime.

The 10th proposal in the document mentions a “mandatory reduction in punishment in case of an admission”. The description reads that this “measure gives an incentive for an accused, who is guilty, to face the reality of the situation and admit guilt and does not waste the Court’s time”.

“If they do this they will be given a reduced punishment which occurs automatically by law and without depending on the discretion of the prosecution or the Court.”

It further explains how if the accused admits guilt immediately during the arraignment, then they will be given a mandatory two-degree reduction of punishment. Then if they admit guilt at any other stage during the process, the punishment will be reduced by one degree. In cases where the crime carries a life sentence, an early plea will only reduce the degree of punishment by one degree.

A source within the legal profession explained that the proposed changes would tie the hands of the judiciary and it would result in mandatory reductions in the scale of punishment for a crime upon admission.

“To date this reduction has always been at the discretion of the court. If a person pleads guilty to a very serious offence and admits on arraignment, the court takes that early plea of guilty into consideration, but it also looks at other particular circumstances such as the gravity of the case.”

The new proposal, however, removes that discretion and just pays attention to whether and at what stage someone pleads guilty, the source said, with the applicable minimum and maximum punishment depending solely on the choice made by the accused.

So if a crime is punishable by a maximum of 40 years and that person pleads guilty upon arraignment, the maximum that could be given would automatically drop two degrees to 20 years, the source continued. “This would be done without the judiciary being able to take into account the particular circumstances of the case.”

Such an automatic reduction is not fair for the victims, and indeed for society at large, the source said. “The courts should be allowed to keep their discretion.”

Mandatory reductions simply sacrifice justice on the altar of expediency and harkened for speed, the source added.

Other legal sources noted how the proposal “makes criminal justice appear like some cold contract whereby early admission of guilt is compensated with a lower punishment”.

 

One must ‘make sure that the price for speed is not too high’

After reviewing the proposals Professor of Law Kevin Aquilina said that the ideal situation would be to have judicial guidelines.

“The ideal situation is to have a sentencing policy that would provide concrete guidance to the judiciary on what punishment to impose in which circumstances. So the discretion would be exercised within pre-established parameters, thereby ensuring that justice is meted out equally to everybody.”

Aquilina said that “a reduction for a crime is unfair for the victim but it can ensure speedier justice for the victim in so far as justice is meted out faster than having to go through the whole court procedure with the possibility also that the accused might not be convicted but acquitted”.

Asked whether the courts should have discretion depending on the case, he said: “Removing the court’s discretion will ensure more consistency in the punishments to be awarded. It also brings about legal certainty, for one would know what the punishment will be for the crime of which s/he is accused. But sometimes it can be counterproductive as not all cases are the same and thus it might also make sense to allow an element of discretion. The best thing to have is discretion within pre-established guidelines for sentencing.”

 

Former Judge for the European Court of Human Rights Giovanni Bonello told this newsroom that he was “all for improving the structures underpinning the administration of justice. We must however make sure that the price for speed is not too high”.

Judge Bonello said that it was “undoubtedly well-meaning and may go some way to lighten the caseload of the criminal courts. That is laudable and to be encouraged”.

However, he had a number of questions: “Are victims of crimes comforted if the state rewards the criminal with partial impunity simply because it is in a hurry to reduce the backlog? Are the fundamental rights of accused persons to a full and unfettered defence safeguarded, when the state faces them with a choice between risking a higher penalty if they exercise their rights to defend themselves or forgo the right to defend themselves, to get off lightly? Wouldn’t that resemble moral coercion to renounce a fundamental right?”

 

Criminal lawyers in favour of speeding up the judicial process

This newsroom also got in contact with criminal lawyers as legal sources who were more inclined to agree with the proposed amendment.

One source pointed out the benefit of creating an enticement to admit early, which would speed up the process and cut a lot of expenses that the courts have to endure when dealing with these cases, especially if a jury is involved.

“This is a system already applied in many jurisdictions,” sources added

The courts have already consolidated something similar in judicial practice in the form of judgements, where the judge or magistrate offers the accused a benefit whenever there is an early plea, sources continued.

“If all things were equal, then there would be absolutely no benefit to admitting early.”

Sources added that this proposal will create uniformity in the punishments given, as currently, they said that there is an inconsistent “haphazard approach” where not everybody gets the same benefit for the same offence whenever there is an early plea.

They noted that although this removes the discretion of the judge, it puts everything on a more transparent basis.

“Given the current backlog of cases, which are now turning into constitutional cases for lack of a fair trial in a reasonable time, might be a way to assess this from a practical point of view.”

Sources did note that at times a reduction of one or two degrees may be problematic in certain circumstances, but considering the large backlog “something has got to give”.

 

An early plea would mean that victims do not have to ‘re-traumatise’ themselves

Sources said that this amendment would also benefit the victim as they would be able to get closure straight away and not need to experience cross-examining and testifying in court.

In cases where the accused is caught red-handed, they questioned whether it was fair that the accused may still benefit from this reduction, however, this would still mean that the victim would be spared immediately.

“Ask any rape victim if they enjoy testifying. They breathe a sigh of relief when someone admits.”

Similarly, NGO Victim Support Malta told this newsroom that pleading early will be beneficial to the “victims in the reduction of re-traumatisation and the possibility of closure and moving on”.

“While this may be of benefit in order to reduce the length of court cases, one would expect the court's decision to rely on tangible and clear parameters listed in this amendment, if for nothing else, but to have more objective and standardised criteria in line with the amended law.”

“Also, the proposed opportunity to change the plea, further along, will inadvertently support the stretched duration of court cases and ultimately result in a continued waste of the court's time.”