The Malta Independent 5 March 2024, Tuesday
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Should Malta have ‘road homicide’ legislation?

Sabrina Zammit Sunday, 3 December 2023, 09:00 Last update: about 4 months ago

Each time a court of law rules about a traffic accident which left someone either dead or with life-changing injuries, the question that arises is whether judges and magistrates are being too lenient with the perpetrator.

The subject was also tackled by Prime Minister Robert Abela last year, with the head of government questioning whether the judiciary is applying the right penalties that reflect the gravity of the situation.

Malta, unlike countries such as Italy, does not have a law that speaks of “road homicide”, with some lawyers arguing that there are enough provisions in the Maltese legislation to cover all aspects of such accidents, while others believe that it is high time to enact such a law, if anything to serve as a deterrent.

Just like we did in cases of femicide.

When a Polish student was killed in January 2022, the government took less than six months – which included an election – to introduce, with the support of the Opposition, the concept of femicide as an aggravated offence. The argument is made that the same should apply for traffic accidents which lead to death in cases where there is gross negligence.

Should we, therefore, have “road homicide” specifically indicated in our law?

We do not have this offence as the Italians do, one lawyer who preferred not to be named, said.

Nor do we have a specific offence of hit and run, irrespective of whether the hit leads to death or to grievous and slight bodily harm.

When these cases happen, they are treated under the general offence of homicide, where death occurs, or grievous or slight bodily harm, depending on the injuries caused.

The advantage of having specific offences would be to attract more attention to these crimes, to impose more severe punishments and also to serve as a deterrent.

It would be good to amend the Maltese Criminal Code on the lines of the Italian penal code, the lawyer said.

What the Italians did, in 2016, was to enact a law which includes the concept of omicidio stradale (road murder) which establishes the imprisonment of the driver of a vehicle who, through imprudent driving, leads to the death of a person/s.

The law then lays down that drivers can be sentenced between two to seven years in prison; five to 10 years if the accident happened when the driver was under the influence of alcohol, which goes up to between eight to 12 years if the alcohol level is considered grievous (above 1.5 grammes per litre). The sentence is cut by half if the responsibility for the accident is shared with others but is increased if the driver is not licensed or covered by insurance.

Last year, when confronted by journalists on the application of Malta’s laws by the judiciary following serious traffic accidents, Prime Minister Abela had said that the government has no intention of increasing the penalties for drivers who are found to be responsible.

He had suggested that the courts of law should give harsher penalties, saying that the law as it stands, provides for effective jail terms which have scarcely been applied.

In Malta, the law already provides for a maximum of four years of effective imprisonment, Abela had said, but this has almost never been applied. Offenders are instead given suspended sentences or conditionally discharged.

Before talking about expanding the parameters of existing laws, he had said, one has to see whether the existing ones are being applied. Are we going to escalate the sentences given or are we to remain with conditional discharges and suspended sentences, he had said, adding that it is crucial for judges and magistrates to give punishments that reflect the need for maintaining more security on our roads.

Contacted by The Malta Independent on Sunday, the head of Department of Criminal Law within the Faculty of Laws at the University of Malta, Stefano Filletti said in Italy, while a death by a car accident remains considered as an involuntary homicide “as you did not wish the death or want the death”, it recognises separately that “when you consume drugs or alcohol, and you choose (notwithstanding the fact that you’ve taken alcohol or drugs) to take the wheel and drive (thereby consciously), and to a certain degree putting yourself and others in danger and you do cause an accident or a death, then that becomes a separate (set) of facts”.

As the law currently stands in Malta, Filletti explained that involuntary homicide is “a general offence which caters for an involuntary homicide, be it a road traffic accident, a construction accident or even a domestic accident, for example where there is an installation of a faulty appliance”.

He also said that despite the current Maltese set of laws not carrying the Italian mentioned offence, it still recognises the separate offences of dangerous negligent driving and driving under the influence “which can also lead to the suspension of your licence”.

Apart from the legislator needing to assess whether introducing such an offence (road murder) would be beneficial for the country, Filletti also recognised that there needs to be the political will to do so because “it’s a matter of policy”.

For his part, lawyer Steve Tonna Lowell said that “from a cursory look at the (Italian) legislation, it does seem that the various hypotheses mentioned are catered for in our law, albeit in a different manner and with different formulae”.

“The notion of culpa (negligence) in Italian doctrine and jurisprudence is safer than ours since it adds the theory of an act being preventable (prevenibile) to our limited theory of foreseeability (prevedibile). These two theories read in conjunction circumvent the fallacious conclusion that once an act has actually taken place, then it was foreseeable. Our more recent jurisprudence leaves a lot to be desired,” he said.

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