The Malta Independent 23 May 2024, Thursday
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TMID Editorial: Speed vs punishment

Monday, 5 June 2023, 14:35 Last update: about 13 months ago

A recent public consultation titled Reform of the compilation of evidence and referral procedures’ included a particular clause which would see an automatic reduction in the degree of punishment if the accused admits guilt.


The proposal 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. 

This newsroom contacted several people in the legal field for their opinions about this measure, some speaking on the record, and other preferring to remain anonymous. 

One of the legal profession sources said 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, the source said, there was always court discretion. 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, adding thatthis would be done without the judiciary being able to take into account the particular circumstances of the case.” 

Another person who spoke to this newsroom, Professor of Law Kevin Aquilina, said that the ideal situation would be to have judicial guidelines, an idea some others also mentioned. “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. 

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,” he said. 

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 said 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”. He went on to pose a number of important 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?” 

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 for instance. 

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

Many points have been raised. It is clear that speed of cases is something which needs to be tackled, but one must ask, is a mandatory reduction in the degree of punishment really the way forward? Should we eliminate the discretion of the courts to decide on a case by case basis? Will victims of crime prefer criminals being given possibly shorter sentences for the case to be closed as quickly as possible? Should this really be a question we should be asking, or should discretion remain and the speed of court cases be improved by other means? What about the idea of guidelines instead of mandatory reductions? 

The government has a lot to think about on this matter, and it is not a proposal to be taken lightly. The public consultation has closed, but such a proposal still requires much debate. The concept of mandatory reduction in the degree of punishment for a guilty plea regardless of the circumstances of the crime is concerning.



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