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General Principles of Criminal Law

Criminal Law
Criminal law should be founded upon principles that are permanent, uniform and universal, and always conformable to the dictates of truth and justice, the feeling of humanity and the indelible rights of mankind Blackstone. The most important function of the state is that which it discharges as the guardian of the order, pre enting and punishing all in!uries to itself and all diso"edience to the rules which it has laid down for the common welfare. Those acts or omissions which the state considers as a threat to the common welfare are thereof punished in the Criminal Code and other laws the penal laws. # er$ penal law consists of two elements, that is to sa$, the precept %preceptum legis& where"$ the state prohi"its or commands the doing of a certain act, and the sanction %sanctio legis& where"$ the punishment is threatened against the transgressor. 'n simple and primiti e communities it is no dou"t possi"le that rulers and magistrates e(ecute !udgements in such a manner as "est commends itself to them. #arl$ law is concei ed as Jus %the principle of !ustice& rather than lex %the will of the state&. The function of the state in its earlier conception is to enforce the law not to make it. The rules to "e enacted are those of right which are found realised in the immemorial customs of the people or which are sanctioned "$ religious faith and practice, or which ha e "een di inel$ re ealed to man. But as the state grew up and the machiner$ of Go ernment "ecame more comple(, things "ecome different) and in almost all modern countries, legislation "$ the state has asserted its e(clusi e claim. The state needs to enact positi e laws where"$ it authoritati el$ declares the rules which it intends to enforce and initiates the penalties which the "reech if those rules will entail. The enactment of such laws is the guarantee of the rights of the indi idual. # er$ mem"er of the communit$ has complete freedom unless he hinders the freedom of others as it is laid down in the law.

1 Relationship between Criminal Law and Morality

*ccording to +enning , L at the time of -enr$ ' it was "elie ed that. In order that an act should be punishable it must be morally blameworthy. It must be a sin/ The fact whether Criminal Law should "e "ased on moralit$ so as to enforce it is a de"ate that is still "eing discussed until toda$. *ccording to -.L.*. -art in his "ook Law, Li"ert$ and 0oralit$, wrote that the main intent of Criminal Law was not to enforce moralit$. 1n the other hand, +a"let argues that the Criminal Law should do so. 'n the past, Criminal Law was "ased on the social alues thus on the morals. Thus for an act or an omission to "e punisha"le it had to "e either an immoral action or a sin. The traditional attitude of the common law, has bee that crimes are essentially immoral acts deserving of punishment. In the early days of law, when the number of crimes was relatively few and only

20'T-, ,.C. 3 -1G*4, B, Criminal aw %London Buttersworths /567& p. 8

General Principles of Criminal Law

the most outrageous acts were prohibited ! murder, robbery, rape etc. ! this was, no doubt, true. "ut now many acts are prohibited on the grounds of social expediency and not because of their immoral nature#. Toda$ the element of moralit$ is not the onl$ element that determines whether an act is to "e as a Criminal offence or not. Toda$, the act must "e directl$ harmful to indi iduals or to the collecti e interests. 2till some immoral actions can "e considered as Criminal acts "ut not all of them and not all criminal acts are immoral. 2o one can notice that there is an o erlapping "etween these two spheres of life. But still the fact that an act is immoral does not entail that it is also a criminal act and the fact an act is a criminal act cannot o" iousl$ "e considered as immoral. *s an e(ample, one can easil$ mention adulator$. *ccording to the Christian 0oralit$ this is an immoral act and until /56/ it was still considered to "e a Criminal offence "$ the 0altese Criminal Code "ut toda$ it is not an$ more. 1n the other hand, in 'slamic law adulator$ is till this er$ da$ punisha"le. There are also Criminal acts that are considered as morall$ praiseworth$ "ut are punished se erall$. 9e"ellion against an$ form of T$rann$ is one. :hen a law punishes an immoral act, it does this "ecause there are other factors that appl$. 0altese law punishes the 2olicitor of prostitution and not the prostitution of oneself. This does not mean that prostitution is not immoral. The same happens with a"ortion and with pornograph$. Both are considered as offences "ecause the$ are a threat to social order and not !ust "ecause the$ are immoral. This happens "ecause law can onl$ regulate that conduct which is e(ternalised. *n$thing that remains in the human mind or hearth cannot "e punished. :anting without doing is not considered as a criminal offence "ut it is still considered to "e immoral. 0an can onl$ take into account what he sees and hears. Thus criminal offence must "e clearl$ defined and possi"le to proof, therefore en $, greed and feelings in general cannot "e considered as punisha"le e en though the$ are considered to "e immoral. # en if in most cases of criminal offences there is an element of immoralit$ is not the rule. 'f law would "e done to enforce moralit$, this would mean that there is onl$ one moral s$stem in a countr$, "ut this is certainl$ not true. :ith the ad ent of ethnic amalgamation morals ha e mi(ed up and changed and will continue to change. 1ne can sa$ that there is a pluralit$ of morals "ut onl$ one Criminal Law alid to a particular countr$. 'f punishment is assessed accordance with the degree of moral "lameworthiness, it seems to follow that it is imposed "ecause of the moral "lameworthiness ; and therefore no further !ustification is needed. *s regards the difference "etween moralit$ and law a further idea de eloped. The same offence might "e lia"le o the ma(imum or minimum of punishment. 0orall$ speaking an attempt to kill and the intent of killing are as "lameworth$ as actual killing. -owe er for reasons of polic$, since harm in the first is less than in the second, a lesser punishment is gi en. This is also done to keep the persons from persisting in the same attempt.

1.1 Actus Reus and Mens Rea4

This close relationship "etween moralit$ and law de eloped two er$ important notions in criminal law which are still used toda$ as to determine whether a person is to "e held criminall$ responsi"le or not.
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20'T-, ,.C. 3 -1G*4, B, Criminal aw %London Buttersworths /567& p. <= 20'T-, ,.C. 3 -1G*4, B, Criminal aw %London Buttersworths /567& p. > 8 ,14#2, T. -. 3 C-9'2T'# 0. G. *. $reens Concise %cots aw C&I'I() )* +*. $reen %weet and 'axwell, Chapter ;


General Principles of Criminal Law

2trict lia"ilit$ is what used to "e the rule "efore and what toda$ is considered to "e as an e(ception to the rule. This lia"ilit$ arises simpl$ from the commission of the material act prohi"ited "$ the law. 4o particular state of mind was re?uired and thus e en an inanimate o"!ect or an animal could "e held criminall$ responsi"le. The fact that the act is prohi"ited was enough for the agent to "e punished. This concept of strict lia"ilit$ was also called a"solute lia"ilit$ since the phrase a"solute used to impl$ that no possi"le defence could "e raised to ac?uit the agent. B$ the accomplishment of the material act the agent would "e e(posed to criminal lia"ilit$. @nder the influence of Canon Law and 9oman Law, a change graduall$ took place and the courts "egan to re?uire proof an element of "lameworthiness Aa guilt$ mindB. Toda$ the act is not sufficient to render the agent punisha"le since it has to "e accompanied "$ a guilt$ state of mind %"oth the *ctus rues and the 0ens rea are needed and one without the other is not useful to condemn a person&. The following dictums e(plain this concept. ACTUS NON FACIT REUM NISI MENS SIT REA That is. The act alone is not sufficient to make a person responsi"le unless accompanied "$ a guilt$ state of mind. :here the *ctus 9eus is the conduct %action or omission& prohi"ited "$ law and the mens rea is the particular state of mind, which must accompan$ the )ctus &eus. The *ctus 9eus is simpl$ the act for e(ample in the case of homicide there are three classifications. The *ctus 9eus is the same for all of them "ecause the final product is that a person is killed. But the mens rea is considered to "e different for the three of them. %see ta"le /&. *s one can easil$ notice from the ta"le "elow, the *ctus 9eus is the same since in all the three cases the person kills another person, "ut the 0ens rea is different. The mental intention "ehind each t$pe of homicide is different. This means that the punishment will "e different and if one is missing the person accused will not "e considered to "e guilt$

Action Coluntar$ 'n oluntar$ *s a result of a grie ous harm

Ta"le /. Classifications of homicide.

Actus Reus The same The same The same

Mens Rea 1ne wilfull$ kills another 4eglect andDor there was no desire andDor was not foreseen 1ne does not intend to kill or put his life in !eopard$ "ut to harm

*ctus 9eus is a notion ?uite simpl$ to understand. 't is an action or an omission done in "reech of the law no matter whether it is oluntar$, in oluntar$ etc E 1n the other hand mens rea %i.e. a guilt$ mind& must not "e understood under the common point of iew. 't does not necessaril$ impl$ malice on the part of the agent. Tied with this notion there is another notion.F Ala capacitaG di intendere e di olereB. 'n the case of #uthanasia the agent "ears no malice. 1n the contrar$, most of the time this is an act of lo e, to relie e the person concerned from the suffering. 2till according to our Criminal code and other codes, #uthanasia is considered to "e a wilful homicide since there is still the element of awareness

General Principles of Criminal Law

and thus of willingness. 1n the other hand, if a person had no choice, that action could not "e attri"uted to his person.

2 The Distinction between Criminal O ences and Ci!il "ron#s

1ffences or wrongs

Criminal wrongs +iagram /. +i ision of :rongs

0oral wrongs

Ci il wrongs

:hile moral wrongs are wrongs contrar$ to morals, criminal wrongs "elong to a much wider class of legal wrongs i.e. wrongs contrar$ and in iolation of the law. But apart from criminal wrongs there are also, ci il wrongs and constitutional wrongs. 'n this section we will onl$ see through the differences "etween criminal wrongs and ci il wrongs. The thin line that there is "etween what is considered to "e a pu"lic offence or a pri ate offence makes our !o" some what difficult, e en though man$ attempts ha e "een made. * pro"lem that used to arise in primiti e law was wh$ criminal wrongs are punisha"le, and ci il wrongs are onl$ offering pa$ment or remed$ for an$ damages.

2.1 Ci!il "ron#s

Ci il law is what ' call the law of the pri ate, since it regulates the pri ate relations "etween su"!ects without the direct in ol ement if the police and are prosecuted onl$ "$ the complaints of the in!ured parties. This is usuall$ of a pri ate concern where one part accuses the other in front of a !udge wanting remed$, pa$ment of damages or enforcements of rights %e.g. ,ohn *?uilina s. Paul Camilleri&. 'f one does not pa$ the fine for ci il offence this will result in the confiscation of propert$ of the accused. These will "e sold "$ means of an auction ordered "$ the courts and the mone$ earned will "e used for the pa$ment. 't is made up of legal rules that define and enforce right %*rticle ;;6 %;& Criminal Code Chapter />& and duties of the person in relation to other persons. 't also pro ides for a s$stem of remedies and pa$ment of damages when these rules are "reeched "$ one su"!ect at the e(penses of the other. Hor e(ample. person * has "ound itself into a contract where he sells a car to B. * fails to deli er the car to B and therefore "ecause of the written contract B can o"lige * to deli er the car "$ ci il law. These wrongs are su"!ect to the ci il procedure and are dealt with in Ci il Courts. 2till there are some Ci il :rongs that are lia"le to punishment %ci ic penalties&. These penalties were considered to "e as a remed$ if it persuaded the de"tors to pa$ as in the case of the nonFperformance of a contract.

General Principles of Criminal Law

2.2 Criminal O ences $"ron#s%

Criminal law is the law of pu"lic relations since it is concerned with the relations "etween the su"!ect and societ$ at large. * criminal wrong is prosecuted "$ the authorit$, which represents the common good and societ$ as a whole i.e. the state that represents the pu"lic. Criminal wrongs are prosecuted e( ufficio "$ police and do no need an$ complaints. Criminal law is made up of legal rules concerned with acts andDor omissions which are contrar$ to pu"lic order and societ$, and that at the same time distur" the entire communit$. Criminal law is concerned with punishing the offender and not with remedies and pa$ment of damages to an$ part$ %something that happens in Ci il law&. 'n these cases it is not a su"!ect that accuses another su"!ect "ut the police on "ehalf of the 9epu"lic that tr$ him in front of the courts, accused of committing a criminal offence %#.g. Police s. *?uilina Longino&. 'n these cases the competent court is a Criminal Court and "efore and during the trial Criminal procedure is used. 'n the area of criminal law, we also ha e an enforcement of rights where the court ma$ o"lige the offender, "esides punishing him, to remo e an$ nuisance "eing caused. In the case of any contravention, the court, besides awarding punishment, shall order the offender, where the occasion so re-uires, to abate the nuisance arising from the contravention... %*rticle ;</%/& Chapter /= Code of Police law&. 'f one does not pa$ an ammenda he is lia"le to detention while if it is a multa then he is lia"le to imprisonment.

This distinction is ?uite a clear one toda$, "ut in primiti e law what toda$ we descri"e as criminal was dealt in ci il law. Thus in our law there ma$ "e o erlapping due to these changes. *nother approach is the 'ala in %e test. a criminal wrong is something that is intrinsicall$ e il and immoral e.g. rape, homicide, theft etcE -owe er there are criminal offences that neither e il nor immoral as in the case of illegal parking. Therefore one must sa$ that this test does not gi e us the full picture. *part from this, there is the idea that a criminal wrong is of greater harm than a ci il wrong. #(ample can "e gi en that it ma$ "e the complete opposite. #.g. stealing a loaf of "read is a criminal wrong and "ankruptc$ is a ci il wrong. Thus this is not a good definition of a criminal wrong "ecause a definition should onl$ define one thing at a time. 1ther approaches are "ased on whether there is a remed$ or not of harm. 'f harm can "e remedied other than "$ punishment, then the wrong, would "e a ci il wrong, if not then it is a criminal wrong. Pro"lems ma$ arise when the two t$pes are mi(ed. The following are e(ample. 'n oluntar$ -omicide "$ reckless dri ing. F This er$ same action is a criminal action and a ci il action. Thus since it is a criminal wrong, it is lia"le to punishment and since it is a ci il wrong it also gi es the ictim a right to compensation.

General Principles of Criminal Law

Hraud.F 'f a person defrauded another person of his propert$ it is "oth a criminal and a ci il action since Hraud is "oth a criminal and a ci il wrong. *ctuall$ there is no real distinction "etween criminal and ci il wrong, onl$ the state gi es a different and particular treatment to that particular wrong. 9eference. The Criminal Law 9e iew Criminal Code *rticle <</, <<IF<<> Per!ur$ *rticle /=8F/=6 Calumnious *ccusation *rticle /=/

& De inition o criminal o ence $Carrara's De inition%

*ccording to Carrara the nature of a criminal wrong is. LB'4HL*J'14# +#LL* L#GG# +#LL1 2T*T1 P910@LG*T* P#9 P91T#GG#9# L* 2'C@9#JJ* +'# C'TT*+'4' +* @4 *TT1 #2T#941 +#L @101 P12'T'C1 1 4#G*T'C1 019L*0#4T# '0P@T*B'L# T-# C'1L*T'14 1H T-# L*: 1H T-# 2T*T# P910@LG*T#+ H19 T-# P91T#CT'14 1H T-# 2*H#TK 1H T-# 2@B,#CT2 BK *4 *CT 1H 0#4 :-#T-#9 1H C100'2'14 19 10'22'14 H19 :-'C- T-# *G#4T '2 019*LLK 9#2P142'BL# This definition applies to the more grie ous criminal wrong. Thus, a criminal wrong is the purpose for which a criminal law was enacted, for the safet$ and protection of the societ$. Parts of the definition of Carrara are true also of ci il procedure.

&.1 Analysis o Carrara's De inition

&.1.1(iolation o the law o the state
This leads us to e(amine two er$ important ma(ims) (ullum Crimen %ine ege and (ulla .oena %ine ege. These two ma(ims mean that an act cannot "e considered to "e illegal, therefore in Ciolation of the law, unless it results from the law. The second one means that the nature of the punishment and its ?ualit$, must also result from the law and that it must remain within the margins laid down "$ the law. To ha e a "etter perspecti e of this one must also tackle this with the help of the concepts of Limitation of Time. * iolation of the cannon law is also a iolation of the law "ut it is not a iolation of the law of the state. 2imilarl$ if a person does not honour a contract, he is not committing a criminal offence since he is not in "reech of an$ law of the state, "ut the law of the parties concerned.

't is the enactment and the pu"lication of the law which gi es rise to another important principle em"odied in the ma(im. 'G419*4J'* ,@9'2 4#0#4 #2C@2'* %'gnorance of law is no e(cuse&. 2ince this principle is rather one of good polic$ than of !ustice, it is er$ de"ata"le whether this ma$ appl$ e er$ time especiall$ when a countr$ has er$ strange laws that Tourists donBt know etcE

General Principles of Criminal Law

&.1.&*or the protection o the sa ety o the sub+ects by an act o men whether o commission or omission
The act is er$ important to proof. This "ecause it is impossi"le to percei e a law made "$ human "eings that can !udge inside feelings or thoughts. Hirst of all these are not seen "$ the human e$e or heard "$ the human ear, unless these materialiLe into acts, secondl$ if the$ remain in the human mind the$ are of no harm to the communit$. Therefore for an act to "e punisha"le, it must "e also an act of men.

&.1.4*or which the a#ent is morally responsible

:hat makes the guilt$ mind %mens rea&, is the knowledge of iolation. The agent must ha e a choice. The criteria which are essential for Criminal offence. The gra it$ of a conduct) The particular conduct must "e capa"le of definition) The conduct must "e capa"le of proof) Conduct must "e capa"le of punishment without undue interference) Pu"lic opinion. @seful to set whether an offence is criminal or not, since crimes distur" the pu"lic opinion) The conduct must "e as such as not to "e repressed without the use of punishment.

&.2 Criminal Char#es as understood by the ,uropean Con!ention on -uman Ri#hts

2ee chapter ;/5 of the laws of 0alta

4 Classi ication o Criminal O ences

The classification of offences can onl$ fall under one or the other of each of the following categories. /. <. ;. 8. I. >. 1mission and Commission Hormal or 0aterial 2imple or Comple( 'nstantaneous or Continuing Crime or Contra ention 41T#. C-#CM H19 '4+'T*BL# *4+ 2@00#9K 1HH#4C#2 *4+ T9'*+ #T-#9 :*K % L#22 T-#4 /= K#*92 '0P9'2140#4T #TC. &

4either of the classes is selfFcontained and therefore an offence can fall under arious classifications. *n e.g. is the following. :ilful homicide %*rticle <// %<&& is. 0aterial, instantaneous and a crime) Calumnious accusation is. formal, can "e also instantaneous and is a crime.

General Principles of Criminal Law

4.1 Omission and Commission

1ffence of Omission is when someone does not do what he was o"liged to do "$ law, while an offence of Commission is when the wrongFdoes does something which is prohi"ited "$ law.

4.2 *ormal and Material $Reati *ormali u Reati Mater+ali%

Formal offences %conduct crimes& cannot "e an attempt and it is an offence, which is completed "$ the mere act or omission constituting the iolation of the law, independentl$ of fact whether the result sought "$ the offender is achie ed or not. 2uch act or omission is sufficient in itself to complete the offence %0anLini, ATrattatoB p.I>;&. Thus, for e(ample calumnious accusation %*rticle /=/& is a formal offence "ecause the crime is complete as soon as the offender maliciousl$ la$s infamation against another person whom he knows to "e innocent, per!ur$ %*rticle /=8& and defamation %*rticle <I<& %in all three e(amples the mere act completes the offence&. Hor a Material offence %result crime& the result of the act or omission is essential. The offence cannot happen without the actual happening of the in!urious e ent which alone constitutes the material iolation of the law. Completion re?uires the accident of the e ent, which, though the offender ma$ ha e done all that he could to "ring it a"out, ma$ not materialise in conse?uence of circumstances independent of his will. Thus homicide is a material offence since a person must "e killed so that an offence is perpetrated. 1ther e(amples of material offences are "odil$ harm %*rticle </8&, rape and wilful damage to propert$. This distinction has particular importance in connection with the doctrine of Criminal attempt. %9efer to Criminal appeal AThe Police s. 2aidB, <; rd ,anuar$ /5;5, Col. NNC', P*9T i , p. 6>7&

4.& .imple and Comple/ $.emplici u 0omplessi%

*n offence is simple when it iolates one single right %e.g. theft. the right of propert$ is iolated& and Complex when it iolates more than one. Hor instance when an act or omission constitutes an offence under two of more laws of pro isions of the law e.g. e(portation of foreign currenc$ without permit. offence against Customs ordinance %Chapter ;6& and offence against #(change Control *ct) carnal offence against a minor. an offence of rape and the offence of defilement of a minor. :hen this occurs one has to determine whether a ma!or offence a"sor"s the minor offence. %Carrara& *ccording to 0anLini a simple offence is one completed "$ a simple act e.g. oral defamation %calling someone a thief&. * complex offence re?uires a series of acts in order to "e completed e.g. wilful homicide %o"tain a weapon, o"ser ing the ictim, shooting etcE& CarraraBs distinction is of practical importance in connection with the theor$ of concurrent offences. *s defined "$ other writers it has a practical importance in relation to the doctrine of criminal attempts. 9egardless of this 0anLini sa$s that, the notion of an attempt is inconcei a"le in respect of a simple offence %as defined "$ him.&

General Principles of Criminal Law

4.4 1nstantaneous )ermanenti%



o ences


These two t$pes of offences ha e a considera"le practical importance "oth in relation to su"stanti e law as well as in relation to ad!ecti e law %Law of procedure&, and especiall$ in connection with the application of transitor$ pro isions, with the age of the offender and with prescriptionI. To start with one must make a slight distinction "etween the continuance of the effect and the continuance of the offence. *lthough there ma$ "e the former like in the cases of homicide, "odil$ harm, theft, rape, defamation wilful damage etc. one still considers the offences as an instantaneous one, e en though the effects produced are permanent. 'nstantaneous offence is an offence that is completed as soon as the act or omission in iolation of the law is perpetrated. The effects ma$ or ma$ not continue after the perpetration of the act or omission constituting the offence. "ut if the$ continue, it is not "ecause of an$ further act or omission, "ut merel$ as a result of such original act or omission. in other words, the continuance of the effect is not occasioned "$ the repetition or the continuance of the wrongful act or omission "$ the iolation of the right or interest protected "$ law. :e must also sort out the confusion that there ma$ arise "etween Continuous and Continuing offences. The distinction "etween the two is er$ important when it comes to time prescription as it is laid down in *rticle >5/ %/& of the Criminal Code that states. /*ith regard to a completed offence, the period of prescription shall run from the day on which the offence was completed0 with regard to an attempted offence, from the day on which the last act of execution was committed0 with regard to a continuous offence, from the day on which the last violation took place0 and with regard to a continuing offence from the day on which the continuance ceased. 0oreo er in *rticle /7 of the Criminal Code we ha e a definition of what is Continuous that states. *here the several acts committed by the offender, even if at different times, constitute violations of the same provision of the law, and are committed in pursuance of the same design, such acts shall be deemed to be a single offence, called a continuous offence, but the punishment may be increased by one or two degrees. 1n the other hand continuing offence is one which consists in a state of things su"!ecti el$ and o"!ecti el$ and uniforml$ contrar$ to law in e er$ moment of its duration. -ere the in!ur$ or the iolation continues and is repeated uninterruptedl$ e en after the completion of the act or omission gi ing rise to the offence so long as the said state of things continues. Thus the continuing offences are constituted of these two er$ important elements. /& a wrongful conduct protracted uninterruptedl$ and without an$ change in its constituent elements for a length of time) <& a state of things contrar$ to the law of the iolation of a right or dut$ likewise continuing without interruption and uniforml$, coFe(tensi el$ with the continuance of such wrongful conduct. Hor e(ample "uilding without permit is a continuing offence. 1n the / st 4o em"er a illa is completed without permit. The "uilding is demolished on the / st ,anuar$. The offence is

The law laid arious time limits applied to awarding punishments, ar$ing from three %;& months to twent$ %<=& $ears. The trial cannot start outside the time "racket constituted "$ law.

General Principles of Criminal Law

continued for < months. Thus it is a continuing offence. The infringement is continuing, "ut it is still the same offence. This act must "e uninterrupted. *n act which is in iolation of the law, which is protracted uninterruptedl$ and without change %uniforml$&. * state of affairs or things in iolation of the right or dut$ which is also protracted o er a period of time uninterruptedl$ and uniforml$ conFcomitantl$ %parallel& with the continuance of the wrongful conduct e.g. possessing an illegal thing together with time $ou possess the thing. 'n a few words Continuous offence is the repetition of the same offence e.g. stealing a large sum of mone$ "ut taking few at a time, while continuing offence is one which is completed when the act of omission ceases e.g. illegal detention. 1n the other hand 'nstantaneous offences are those that are completed as soon as the act or omission is perpetuated e.g. homicide, theft, rape, "odil$ harm etc. :hen the fact in iolation is continuing fact, the iolation is "eing continuousl$ renewed until the iolation is remo ed. The period of prescription starts to run when the iolation is remo ed and not when the conduct has taken place. 'n the case of 'nstantaneous offence when for e(ample there is the taking off of life, the period of prescription starts when the life is e(tinguished. The ceasing of life is the continuing effect of this offence. Police vs. George Zammit (2 !"!#$% Jammit was accused of "uilding without a permit. The fact constituted in constructing a roof o er a $ard which had to ha e access to air. 2ince this was the right the law wanted to protect, the roofing o er was a iolation of the law. The iolation could onl$ "e remo ed when the roof was remo ed and then prescription runs after the remo al of the iolation, the criminal act as not time "arred and the court could decide on the merits of guilt or otherwise. Police vs. Al&ert 'artoli ((ol. ))) part *( page. " 2 + Court of Criminal appeal% Bartoli was accused of ha ing commenced the construction of a "uilding a"utting on a street, "efore such street was le elled to the satisfaction of the +irector of works. The fact as descri"ed in the summons was not a continuing one and the criminal action had "een time "arred. 2ince he committed something at a particular moment in time, the fact was not of a permanent nature and thus it was an instantaneous offence and the criminal charge was time "arred. %This occurred since the law prohi"its the starting of the "uilding "efore the street is le elled and therefore since Bartoli started "uilding the offence was completed. Police vs. ,mmanuel -piteri (2.t/ Marc/ 0$12 Mr 3ustice 3. Flores + Court of Criminal Appeal% The Court made an important annunciation of principle where the offence is one of omission. :here the iolation of law consists of an omission, a time limit is laid down within which to conform with the law in order to determine whether the offence is instantaneous or continuing. 1ne must first e(amine whether the time limit is an essential one. 1ne will ha e to determine whether the lapse of the time limit would result in the definiti e pre!udice of the right protected "$ law or whether the lapse of time would simpl$ "e the commencement of the omission. The offence is instantaneous in the first case and a continuing offence in the second. *nother important criteria to determine whether the offence is continuing of not could "e checked "$ seeing whether there it is within the power of the offender to oluntaril$ "ring at an end the state of affairs contrar$ to the law. 'n the case of wilful homicide, the agent can do

General Principles of Criminal Law

nothing to "ring the iolation of law to an end. 'n a case of a continuing offence, it must "e possi"le that this occurs. 'n the case of an offence of omission, as an e(ample, the law gi es $ou a period of ;= da$s within which to file the income ta( return and $ou fail %omit& to do so. +oes prescription commence at the end of the period of timeO 't can "e argued that law wants to make sure that $ou file it. The lapse of time limit would "e indicati e of the commencement of the commencement of the omission and thus this is a continuing offence. :hen $ou do file the income ta( return, $ou remo e the omission. Police vs. 3osep/ Mugliette sive Mugliett (0# t/ 3anuar45 0$ Appeal% + Court of Criminal

The offence consisted in erecting a "uilding a"utting on a go ernment street "efore pa$ing to the director of works the share due "$ wa$ of road contri"ution. 'n this case we would still ha e to e(amine the right protected "$ law. That is if all construction are co ered "$ "uilding permit then this would "e a continuing offence. -owe er if the court decides that the law wanted to prohi"it the commencement of the "uilding, this would "e an instantaneous offence %an offence of omission the law re?uires $ou to pa$ "efore starting something&. 'n the case "efore it, the o"ligation consisted in making pa$ment "efore erecting the "uilding. 1nce the offender failed to pa$, the right protected "$ law was definitel$ pre!udiced. There was nothing the offender could after ha ing commenced the "uilding, thus it was an instantaneous offence. Police vs. Francis Mallia (06t/ Marc/ 0$$0 Mr 3ustice God7in Muscat A88opardi% 'n order to assess whether the offence is of a continuing nature the court, looked at the nature of the anti !uridical fact %the right which the la waned to protect& and the ph$sical conduct. 'n the case of a permanent disfigurement, there would "e an instantaneous offence with permanent effect. Thus in a case of a "uilding without permit, it would "e a continuing offence "ecause the t of the agent had produced an anti !uridical state of affairs contrar$ to the law which continues to su"sist until such time as the anti !uridical effect has "een remo ed %"$ demolition D alid "uilding permit&. The criteria "$ which to esta"lish whether an offence is instantaneous or continuing. F The elements of the offence F The purpose of the legislation F The !uridical effect caused to "e achie ed "$ parliament %to seek that all "uildings are in conformit$ with the legal re?uirement&.

4.2 Crimes and Contra!entions $Delitt u 0ontra!en3+oni%

1ther Codes for e(ample the Hrench and the #nglish di ide offences into three %;& classifications. 1n the other hand our Criminal Code di ides offences into crimes and contra ention. the more heinous offences are crimes and the less heinous are contra entions. This di ision is stated in *rticle < of the same code that sa$s. 1ffences are divided into crimes and contraventions.


General Principles of Criminal Law

4.2.1-ow to distin#uish between the two

The code does not gi e us a definition of crimes and contra ention and nether does it distinguish "etween them.

6.".0.0 9/e :ltimate test; <ature of Punis/ment test

-owe er in *rticle 6 of the Code we ha e the punishments due to crimes and contra entions. This helps us to identif$ the nature of the offence and although this test pro es er$ useful there are e(ceptions to the rule. +23 %aving the exceptions laid down in the law, the punishments that may be awarded for crimes are +a3 imprisonment0 +b3 solitary confinement0 +c3 interdiction0 +d3 fine +multa3. +#3 %ubject to the provisions of article 45 or of any other special law. The punishments that may be awarded for contraventions are , +a3 detention0 +b3 fine +ammenda30 +c3 reprimand or admonition. +53 The expression 6punishments restrictive of personal liberty6 includes the punishments of imprisonment and detention. Case la7 Police vs. Cataldo (ella 2 !00!6# 'n those da$s disposing of *gricultural products without authorit$ of director of agriculture or one of his representati es was an offence. 's it a crime or a contra entionO The court referred to the punishments and the punishments laid down "$ the statue were fine %multa& or imprisonment and therefore it was considered to "e a crime, *ccording to *rticle 6.

6.".0.2 Ot/er =istinctions

Hurther more one can distinguish "etween the two "$ looking in which part the$ are listed. 1ur code e(pressl$ distinguishes "etween crimes and contra entions since the first are found in Part '' of Book Hirst of the Code %of crimes and punishments& whilst contra entions are found in Part ''' of the same "ook %of contra entions and punishments&. 2till one cannot simpl$ identif$ all offences "$ gi ing a look solel$ at the punishments, since we find minor cases where the offences are considered to "e crimes "ut the punishments are those of contra entions. *n e(ample is *rticle />, The +amaging of 0onuments. .rovided that the court may, in minor cases, apply any of the punishments established for contraventions. *lthough this *rticle is found it Part '' of Book first of the Code and therefore it is considered to "e a crime, in minor cases the punishment is that for contra entions. The same happens with 2light "odil$ harm *rticle <</%;&%"&. 1ther e(amples are. *rticle <<>%/& %c& 'n oluntar$ "odil$ harm <;/ %/& %d& %ii& #(cusa"le "odil$ harm <;< %c& :ilful "odil$ harm

General Principles of Criminal Law

<;6 %d& -omicide or "odil$ harm in accidental affair <I< %<& +efamation <I5 ;<I %d& 2poil, damage or in!ur$ in general *rticle ;<> %<& +amage to water pipes Besides, there are also criminal offences that are listed in other statues. 'n most of the cases these are identified either as one or the other. Cer$ often the law does not tell us specificall$. it simpl$ la$s down the punishments without specif$ing the nature of the offence. #(amples of these are the following. Chapter /= F Code of Police law in *rticle ;/7 states that. /)ny person who commits any breach of the provisions 7 shall be guilty of a contravention8 Chapter 8/ 2pirits 1rdinance clearl$ la$s down that all criminal offences are crimes in *rticle 77 %/& Chapter 6< Beer #(cise +ut$ *ct in *rticle <8 %;& does the same as in the pre ious case *nother distinction is "ased on the relati e seriousness of the act. 'f the act is of a serious nature, then it is a crime. 'f on the other hand the act is not then it is a contra ention. -owe er the same act ma$ change its AstateB like in the ne(t case. +oes this mean that it "ecame more seriousO 'n m$ opinion for the legislator this ma$ "ecome a more serious offence and therefore from this, one can conclude that it is up to the legislator of the time, according to circumstances, to decide how to classif$ offences. The same act can "e considered to "e "oth a crime and a contra ention depending on the degree of harm caused. 'n these cases these tests would not appl$. There ha e "een cases where the same act, at one moment in time was considered to "e a contra ention and at a su"se?uent moment in time, the same act was considered to "e a crime e.g. failure to pa$ 4' contri"utions. This was considered to "e a contra ention until /565. This can "e seen in the case of The police s. ,. 2ali"a %/57I&

6.".0.# Mala in se and mala prohibita

The pro"lem is when the offences arise from other statutes than the criminal code and that same statue does not specif$ whether the offence is a crime or a contra ention. There are man$ soFcalled AtestsB that help us to identif$ and classif$ these into their appropriate classification or else one tries to do so. 1ne of them can "e called the mala in se test *ccording the this test crimes are acts which are mala in se, that is inherentl$ wrong and cause actual harm. Contra entions on the other hand do not cause actual harm. The$ are committed without wrongful intent "ut still ha e a harmful tendenc$. These are most of the times mala prohi"ita>. -owe er this would still not answer certain ?uestions as for e(ample that there are certain crimes which do not cause actual harm e.g. conspirac$. 't was argued that in the case of an attempted crime when a harm is not caused, societ$ is still e(posed o certain dangers and harm and since crimes and contra entions are punished so to pre ent a potential threat to pu"lic order, e en attempts ma$ "e considered as crimes.


0ala prohi"ita when an offence is so, simpl$ "ecause it is laid down "$ law, most of the times these are contra entions.


General Principles of Criminal Law

0oreo er some contra entions are still considered to "e intrinsicall$ wrong F mala in se. *rticle ;;7 %$&, %aa&, %""&, *rticle ;;5 %d&, %g&, %!& and %l& are all contra entions 6 "ut are still an intrinsicall$ wrong act.

4.2.24ut why is it important to distin#uish between the two5

Mnowing to which categor$ the offence "elongs is er$ important for se eral reasons of which the most important are the listed "elow.

6.".2.0 9/e Corpus =elicti

The Corpus 9elicti is the o"!ect or o"!ects which help in the commission or the omission of the offence e.g. a knife to kill, a car to escape etc. 'n case of an$ crime there is the automatic forfeiture of the Corpus 9elicti while for contra entions it has to "e e(pressl$ stated in the law. This is the case in the #(plosi es 1rdinance %Chapter ;;& *rticle 8=, which specifies that although some of the offences are to "e considered as contra entions the Corpus 9elicti is forfeited as well. The conse?uences are laid down in *rticle <;. +23 The forfeiture of the corpus delicti, of the instruments used or intended to be used in the commission of any crime, and of anything obtained by such crime, is a conse-uence of the punishment for the crime as established by law, even though such forfeiture be not expressly stated in the law, unless some person who has not participated in the crime, has a claim to such property. +#3 In case of contraventions, such forfeiture shall only take place in cases in which it is expressly stated in the law. +53 In the case of things the manufacture, use, carrying, keeping or sale whereof constitutes an offence, the forfeiture thereof may be ordered by the court even though there has not been a conviction and although such things do not belong to the accused.

6.".2.2 Attempts
+23 *hosoever with intent to commit a crime shall have manifested such intent by overt: acts which are followed by a commencement of the execution of the crime, shall, save as otherwise expressly provided, be liable on conviction; +a3 if the crime was not completed in conse-uence of some accidental cause independent of the will of the offender, to the punishment established for the completed crime with a decrease of one or two degrees0 +b3 if the crime was not completed in conse-uence of the voluntary determination of the offender not to complete the crime, to the punishment established for the acts committed, if such acts constitute a crime according to law. +#3 )n attempt to commit a contravention is not liable to punishment, except in the cases expressly provided for by law. <

6.".2.# (icarious lia&ilit4

In the case of any contravention committed by a person who is under the authority, control or charge of another person, not only the person committing the contravention but also such other person shall be liable to punishment, if the contravention is against some provision the observance of which such other person

6 7

2ince the$ are found in Part ''', Book Hirst of Contra entions and Punishments 4ot hidden 5 *rticle 8/


General Principles of Criminal Law

was bound to enforce, and if the contravention could have been prevented by the exercise of diligence on the part of such other person./= This section of the law applies onl$ to contra entions e.g. where owners lease out cars

6.".2.6 Recidivism
* person is not a recidi ist if a crime is followed a contra ention and ice ersa. :hen an other offence is committed within the /= $ear period after con iction the person will "e punished for a punishment one degree higher than the punishment prescri"ed "$ law for that offence. :hen he relapses %within ; months& after he is con icted for a contra ention he may be sentenced to detention for a term not exceeding two months, or to a fine +multa3, or to imprisonment for a term not exceeding one month.22

6.".2." Prescription
The ma(imum prescription for a contra ention is three %;& months "ut for a crime it can go up to twent$ %<=& $ears. The minimum limit is three %;& $ears. %2ee *rticle >77&. 't is also important to consider the rule laid down in *rticle >5< this rule applies onl$ to crimes where the criminal action is not time "arred. 'nfringement F the commissioner can onl$ penalise the offender in financial wa$s not imprisonment and such. These ere introduced so as to relie e the courts of pett$ offences which are penalised "u$ commissioners of !ustice instead of magistrates %/577 chapter <5/ of the laws of 0alta& 41T#) these are not formall$ a classification of criminal offence. The$ wanted to deFpenalise these pett$ %not so much of a gra e situations&.

2 1nterpretation
2.1 The ma6in# o a new law
1ne must understand how a law is drafted, discussed and enacted. The following steps of procedure are followed. The legal office of the 9epu"lic recei es instructions on the kind of legislature wanted The *ttorne$ General office %*G1& is gi en the polic$ and the o"!ecti es which the minister intends to reach The *G1 makes research and drafts the "ill This draft is appro ed "$ the ca"inet and then pu"lished on the Go ernment GaLette %GG& for pu"lic scrutin$. Hirst reading in parliament reading of the title 2econd reading limited to principles and the polic$ "ehind the "ill Committee stage parliament proceeds to e(amine in detail arious pro isions of the "ill and makes amendments/<. 9eport stage committee prepares a report to the whole house to "e presented to the speaker Third reading *ppro al of the "ill *ssent "$ the president and "ill "ecomes a law

/= //

*rticle <8 *rticle I; /< This Committee consists of certain mem"ers of Parliament /I

General Principles of Criminal Law

The law is now pu"lished on the GG for it to "ecome effecti e since unpu"lished law donBt ha e an$ force as a law. 'n some cases law will not come into operation until special reser ations are made for the law to come into force on a particular date. There could "e also pro isions for the law to ha e a retrospecti e effect. The date on which the new law comes into effect is not on pu"lication, not in the future "ut in the past %4ot in the case of Criminal Law&. 4ote see *rticle 6< su"section 8.

2.2 Dele#ated le#islation or subsidiary or secondary legislation

The +e olution of powers "$ go ernments is e ermore increasing in time) it is a process that leads to a decentralisation of power. But for this s$stem to work properl$ one must pro ide these "odies with certain powers gi en to them "$ parliament so to decide and work almost totall$ on their own delegated legislation. This has force of law under authorit$ of a parent legislation %*n act of parliament& that created the same "od$. Hor these to take decisions there isnBt the need of parliamentar$ de"ates. These su"sidiar$ organs donBt ha e full legislati e powers and therefore acts within the parameters specified "$ parliament. The delegated legislations are made up of orders, regulations, "$elaws made "$ the minister responsi"le and e en the corporation. Criminal offences are also su"!ect to this kind of legislation. #(amples of these "odies are. @ni ersit$, 0alta Tourism *uthorit$, 0#P* etc.

2.& The .tructure o a 4ill $Abbo33 ta' li7i% or as he said it an act o or in

Long title %not commonl$ used in 0alta& #nacting Hormula 2hort title #nactment date %when not present there is an automatic enactment with pu"lication& +efinitions %'mportant for interpretation of law& Principle pro ision *dministrati e pro ision Transitor$ pro ision %situations which had arisen under the old law and which continue to persist in the new one& er$ important look them up if the$ e(ist 9epealing pro ision %pro ision repealing old legislation& 2chedules %anne( to main legislation&

2.4 The need or interpretation

The application of law is not automatic) it is first interpreted. The scope "ehind interpretation is to determine the e(act meaning of the legal rule and to ascertain the real intention and will of the law in relation to a determinate case. This takes place "$ an anal$sis of words emplo$ed "$ the legislator. The need for interpretation ma$ arise when there is lack of clarit$ and uncertaint$ in laws. This could "e a oided if laws %i& were written in general terms to include all foreseea"le instances, "ut %ii& with the necessar$ detail to maintain clarit$ and a oid agueness. 0ost of the time one would find that countries either adopt the former or else the latter. Hor instance in ci il law countries like 'tal$, 2pain and Hrance much discretion is gi en to courts in interpreting laws which are concise and contain general terms. 1n the other hand in Common law s$stems acts of parliament are er$ detailed and also er$ precise. # en though it is the dut$ of the indi idual to know the law, it is also a dut$ of the legislator to make law as clear as possi"le "ut although there are man$ efforts to achie e clarit$ there are certain limitations. @ncertaint$ could arise from an$ unforeseen social

General Principles of Criminal Law

conditions which might ha e arisen, e.g. AcarB was included under definition of A ehiclesB when the onl$ dri en carts e(isted.

2.4.1(arious types o uncertainty

".6.0.0 >exical
:hen the words emplo$ed ha e more than one meaning. The true meaning is to "e found "$ associating the word to the relati e conte(t within which it is to "e found. #.g. does the word ehicle include also aeroplane

".6.0.2 -4ntactic
:hen am"iguit$ arises from the structure of the sentence construction and punctuation mark.

".6.0.# Contextual
The relationship "etween words phrases and sentences using the same words for different meanings. This is resol ed "$ looking at the purpose of the law.

".6.0.6 >inguistic uncertaint4

This ma$ arise as a result of agueness.

2.4.2(arious types o 1nterpretation

".6.2.0 =octrinal *nterpretation
+octrinal interpretation is "ased on the opinions of writers and !urist and has nowada$s an indirect influence on the application of the law. 'n 9oman da$s, on the contrar$, the theoretical opinions of !urists were a direct and o"!ecti e source of law. 1ne must not confuse those writings and opinions of writers and !urists with legal norm which are still found in te(t "ooks "ut were and still are recognised and applied "$ the courts and now constitute a jus acceptum F legal norms of "inding effect.

".6.2.2 Aut/entic *nterpretation 0#

*uthentic interpretation is that, which is pro ided "$ the legislature itself in "$ means of Ainterpretation clauses of an$ law, or "$ a comprehensi e interpretation law as for e(ample the 'nterpretation act of /56I Chap. <85 of the laws of 0alta. This kind of 'nterpretation is "inding on all. in fact it is hardl$ strictl$ speaking a form of interpretation it is more of a definition where there the legislature writes what is the definition of a certain word or e(pression. The meaning gi en to the particular word in the statue almost complete ma$ e(clude e en the o" ious and logical meaning of the word or e(pression. Thus according to 0anLini one cannot e en attempt to fi( a priori an$ rules for this t$pe of interpretation. This interpretation has a retrospecti e effect e en without an$ e(press declaration for the purpose "$ the legislature. *ccording to Tolomei. (ella interpretata e= gia compresa la interpretattiva. 'f on the other hand interpretation law does suppl$ for lacunae in the law then it can "e applied retrospecti el$. This also applies to all facts and transactions where there hasnBt "een a Ares !udicataB unless interpretation law so pro ides. This helps to show the meaning of the law as it alwa$s has "een looked at . the res !udicata is the final sa$ing or !udgement on the particular law.


2ee *ct NN of /55/


General Principles of Criminal Law

".6.2.# 3uridical *nterpretation (*nterpretatio 3udicalis%

This is the interpretation of the law "$ the Courts in their !udgements. The words %litera legis& are interpreted so as to ac?uire the meaning of the laws and understand their rele ance for the particular cases that come "efore them. *lthough some times laws are ?uite eas$ to understand an interpretation is also re?uired since the will of the legislature is most of the time a"stract and the law must "e adapted to concrete cases, thus it is in the first place, necessar$ to determine its precise meaning and import.

".6.2.6 =eclarator4 *nterpretation

*lthough some of the words used "$ the legislator mean two of more things at the same time, the cannons of interpretation ma$ esta"lish that one of such meanings, answers the intention of the legislator. 2uch interpretation ma$ "e narrow %stretta& or wide %lata&. 1n must "e make attention not to mi( these with restricti e or e(tensi e. *lthough these seem to "e the same and one thing% in the e(tensi e and restricti e there is onl$ one legitimate meaning "ut then this meaning can "e wide or narrow&, the$ are er$ different and for this reason man$ tend to mi( them up. :hile the latter couple is changed either one wa$ or the other so as to meet the intentions of the legislator, declarator$ interpretation is a wa$ of choosing "etween two %narrow and wide&. 'n fact 0anLini sa$s. The proposition that penal laws must be construed narrowly is wholly mistaken, because it confuses the declaratory interpretation with the -uestion of the extensive and restrictive interpretation. Choosing "etween the wide and the narrow meaning is not simpl$ a ?uestion of tastes or liking. Certain factors ha e to weighed and anal$sed "efore choosing which of the two fit the intention of the legislator.. 1f course the choice as "etween the wide and narrow meaning is possi"le onl$ were "oth fairl$ fit the e(pression. 0oreo er the e(pressions of a gi en pro ision are to "e interpreted in either wa$ according as to whether the law intended to use the in the one or the other, independentl$ of the nature of the pro ision. :hen there is an uncertaint$ whether to use one or the other the 'n du"io pro reo rule is adopted. 't is e(plained further down in the notes.

".6.2." ,xtensive and Restrictive *nterpretation (estensiva a restrittiva%

*n extensive interpretation is one which is widened to make it meet the intentions of parliament, while a restrictive interpretation is one which is narrowed to make it correspond with the intentions of parliament. :hen it comes to penal law, e(tensi e interpretation is not allowed as it is descri"ed a"o e. 'n other words, if the legislature, though intending to co er the case in ?uestion, uses language which, in fact lea es the case unco ered, the Courts should refuse to correct the language or suppl$ the defect (ullum crimen sine lege and nulla .oena sine lege. * pro ision of law which imposes an$ such restrictions must not "e e(tended "e$ond the case which it contemplates. 4one what so e er penal laws should not "e interpreted e(clusi el$ in a restricti e manner, since as 0anLini declares. >allace e= la regola, tanto diffusa nella prattica, per cui le leggi penali 7 dovrebbero sempre essere interpretate restrittivamente . The court must interpret the wording of the law "$ using the criteria of ordinar$ use of language, keeping in mind the intention of the legislature. 'f then there are sufficient indications that words in their natural meaning are wider than the legislator intended then these should "e restricted.


General Principles of Criminal Law

1n the other hand an act which the legislator did not want to punish musnBt "e punished e en if it falls under the parameter of law, "ecause the will of the legislator to punish is lacking. This does not mean that one cannot e(tend the law in cases where the result is almost ' would sa$ a"surd. Hor e.g. in the case of Bigam$ the law sa$s. /) husband or wife who, during the subsistence of a lawful marriage, contracts a second marriage, shall, on conviction, be liable to imprisonment for a term from thirteen months to four years.82? This howe er does not mean that during the first wedding one cannot "e found guilt$ if he D she contracts a third and a fourth marriage in the same circumstances. :e know that this is not the case since parliament wanted to emend this AmistakeB.

".6.2.1 >iteral and >ogical *nterpretation

>iteral interpretation, also know as grammatical interpretation, regards e(clusi el$ the er"al e(pression of the law and it does not go "e$ond the litera legis. 2ince it is presumed that the legislature meant what it said and said what it meant, nam -uorum nomina, nisi ut demonstrarent voluntatem decentis, ita scriptum est, this interpretation must precede others. 'n the process of grammatical interpretation words are primaril$ to "e understood in their ordinar$ and popular sense unless there should "e strong indication that some other meaning was intended "$ the legislature. Thus nec aliter a propia verborum significatione recedendum, -uam cum manifestum est id senisse legislatorem meaning that if there is nothing to modif$, nothing to alter, nothing to ?ualif$ the language which the law contains, the words and sentences must "e construed in he ordinar$ and natural meaning, gi en to them "$ usage, regard "eing had to the time of the enactment of the law. *s was said "$ an #nglish ,udge. In dealing with matters relating to the general public, laws are presumed to use words in their popular sense0 Auti lo-uitur vulgusB. 4one what so e er when a law deals with a particular trade, ha ing particular meanings of certain words, then the law must " construed as ha ing that same particular meaning, though it ma$ differ from the ordinar$ meaning of the words. 'n general it is assumed that no word is meaningless or superfluous unless there should appear a"solutel$ e ident. *lso. +b3 words importing the masculine gender shall include females0 +c3 words in the singular shall include the plural, and words in the plural shall include the singular024 :hen construing words one cannot do so "$ anal$sing single words on their own. 1ne must anal$se. the whole conte(t in which these are used, and also the scope and the ideal which that particular law or section is stri ing for. *ccording to +u Pare? L.,. in Bucher s. Poole Corporation %/58<& %< *ll #.9. I6<&. It is, of course, impossible to construe particular words in a statute without reference to their context and to the whole tenor of the )ct . ' sa$ that law should "e understood through interpretation as a whole and not fragmentaril$. :hen the language is not onl$ plain "ut admits of "ut one meaning one must not "eat around the "ush tr$ing to find other meanings, since it generall$ accepted that the specified meaning is the one which must "e followed. 'n re, The Police s. Cella %Cr. *pp. <6 (i /58;& the court said. *here the language of the enactment is clear, no interpretation is permissible which is inconsistent with the clear meaning of the expression; for the court cannot substitute its own judgement for the will of the legislature.
/8 /I

*rticle /5> of the Criminal Code 'nterpretation *ct /56I *rticle 8 %"&, %c&


General Principles of Criminal Law

>ogical or purposive interpretation is that which almost tends to disregard the meanings of the single words, to seek the true intention of the legislature. 'n other words it seeks to determine the actual intention enshrined in the law in relation to the apparent intention resulting from the words. * principal idea of logical interpretation is that language is rarel$ perfect as to "e a"solutel$ plain and unam"iguous. Thus it is difficult for the legislature to sa$ what the$ mean and donBt mean what the$ sa$. *ccording to 0a(well. If a literal meaning has been given to the laws which forbade a layman to @lay handsA on a pries, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who bled a person in the street to save his life would have been liable to punishment. There are times when the litera legis is not conclusi e. This occurs when the letter of law is logicall$ defecti e on account. This results when the law. 's am"iguous F words meaning more than one thing) 0a$ "e inconsistent F when the law has no meaning and certain parts contradict others) 1r e en more it ma$ "e incomplete it ma$ "e neither of the two mentioned a"o e "ut has lacunae which pre ent it from e(pressing an$ logical idea. 0a$ lead to a result so unreasona"le that it is selfFe ident that the legislature could not ha e meant what it has said. 'n all such cases it is o" iousl$ necessar$ to determine the true intention of the legislature. B$ using certain e(ternal and internal aids as discussed later on in 2ection >.8.; one can sol e these defects. :hen the true intention of the law has "een dul$ ascertained, such intentions ought to pre ail o er an$ inade?uate or imperfection of the letter of the law. scire leges non est verba earum tenere, sed vin ac potestatem. 'n ci il law, the courts will re!ect a strict literal ad grammatical construction which leads to manifest contradiction of the purpose of the enactment, or to some incon eniences or a"surdit$, hardship or in!ustice. But in Criminal law the position is somewhat different in certain important respects. * principle which ma$ "e applied in "oth interpretations is #usdem Generis. Hind e(planation of the term.

2.4.&,/ternal and 1nternal Aids to interpretation

:hen the law is not conclusi e for the reasons mentioned in section >.8.<.8.< the following external aids should "e used. a& The aim and o"!ect of the law %ratio legis& the principles inspiring it and the mischief it is punishing) "& The historical legal "ackground the state of law "efore the enactment to "e interpreted was passed) c& The parliamentar$ histor$ of the law the "ills %abboBBi tal,liCi&, discussions and the reasons for which it was enacted) d& Comparati e law comparing and contrasting the laws that ma$ ha e influenced the making of this particular enactment) e& Horeign Commentators and case law Meeping in mind difference "etween domestic and foreign legislations.

General Principles of Criminal Law

*ccording to the #nglish Law, parliamentar$ de"ates are not accepted in making out interpretation of the law so as to a oid e(am of unnecessar$ material. 'n actual effect !udges refer to the de"ates without stating so, in order to "ack !udgements and determine the mischief parliament wanted to punish. Contrar$ to this in the 0altese s$stem, there are no restrictions. ,udges refer to the "ill and to the enacted law to find the e(act will of the legislature. 1ne must also note that there is no %tare 9ecisis2D in 0alta. *nternal Aids are those that ma$ "e found in the act itself. The following are all internal aids that ma$ help in the interpretation. a. The statue itself one must read the statue as a whole %more than an$thing this is a principle& "& Long title the principle "ehind the law c& 2hort title d& 0arginal notes these do not form part of the law itself. Great care must "e taken when referring to them as parliament might ha e made some rele ant changes to the law without altering these marginal notes. e& -eadings neither part of the law not an internal aid. The$ assign titles to arious sections of the law which "ecome easier to interpret when keeping in mind these headings. Hor eg in the criminal code there is a heading that sa$s Crimes against pu"lic trust &. f& Punctuation # en though this is important, one must not make the mistake of not gi ing the necessar$ weight to su"stanti e law and gi e it instead to the punctuation. g& 'nterpretation Clauses These are important in *uthentic interpretation and almost decisi e to the issue. These often start with unless the conte(t otherwise re?uires. h& 2chedules anne(ed to the act These do not alter or enlarge the ordinar$ meaning of the words "ut are used when logical interpretation is approached

2.4.41n dubio pro reo $1nterpretation in case o doubt%

In dubio pro reo and (ullum crimen sine lege are er$ much related. This means that when the court a ha e a dou"t regarding whether the accused is guilt$ or not, the$ decide in fa our of the tried person. This arises since one cannot "e found guilt$ of a crime that is not clearl$ specified in the law, and therefore when the court fails to point out clearl$ a mischief that the legislature wanted to prohi"it, it decides in fa our of the accused. +eclarator$ interpretation.

*nalog$ is not strictl$ a form of interpretation) in fact it presumes that the case in ?uestion is not e en co er "$ a legal pro ision. Law is the regulation of human relationship and "eha iour. 2ince the "eginning of last centur$ these aspects are continuousl$ changing and thus law has to "e updated pro ided for e er$ change so that it co ers all human "eha iour. # en though law tends to completeness pro"lems ma$ arise e er since human relationships change, laws donBt. The scope of *nalog$ is to suppl$ these omissions /6 that there ma$ arise from Athe lack of swiftnessB so to sa$ of the legislature. 't a dispute cannot "e decided with reference to a precise pro ision of law go erning the case, regard is had to pro isions which regulate
/> /6

%tare 9ecisis is when a ,udge is "ound "$ decisions taken in superior Courts or in Courts of the same le el *lso known as lacunae or casus amissi


General Principles of Criminal Law

analogous/7 cases. 'f there isnBt an$ pro ision which ma$ regulate this then regard is gi en to the general principles of law. The !udge in the ci il court is o"liged to decide either wa$ and therefore he cannot a"stain simpl$ "ecause the law is silent. 'n these cases one can also decide on other countries decisions and laws. <e? potranno (i giudici% servirsi di veruna ar&itraria @uante volte non sara? regolata da @uello c/e s dipone dale leggi municipali5 ed in loro difetto dale eggi comuni5 e ne casi controvers4 e neiA du&&i dale opinioni a&&racciate nei supreme e piu? accreditati 9ri&unali. 'n all ci ilised s$stems of positi e law analog$ is prohi"ited in regards to penal law. The ma!or reason for this is that penal law cannot "e e(tended "e$ond the cases e(pressed therein, in conse?uence of the following principles. nullum crimen sin lege and nulla poena sine lege upheld "$ *rticle 6%/& of the Con ention of Hundamental -uman 9ights. *ct N'C of /576 reproduces this article as a schedule "$ 0altese Legislation will ha e to a"ide. *ccording to 0anLini the onl$ wa$ penal laws ma$ ,"e altered "$ a process of analog$ is a process where"$ new social conditions of specific discoveries may create new juridical re-uirements for which it is certainly permissible to provide by adopting the existing law, but not beyond the limits permitted by the text of the laws themselves. This doesnBt appl$ to the whole Criminal Code, "ut onl$ in respect of those pro isions of the criminal law that create offences or prescri"e restrictions and punishments. *n e(ample is *rticle ;55%/&. This *rticle refers to letters of e idence "eing sent specificall$ to 0agistrates. 4onetheless the courts of 0alta through a process of *nalog$ ha e included !udges as well.

2.4.81nterpretation Cases
Police vs. 3osep/ <audi 'n this case a Literal method was used "$ the Courts of 0agistrates and a Logical method was used "$ the Court of *ppeal. Hirst court did not find ticket inspectors as "eing AauthoriLed personsB to check "us tickets, the$ had no right to demand tickets at law A nullum crimen sine legeB. 1n the other hand the Court of *ppeal considered the literal approach as restricti e. 't came a"out that Aticket inspectorsB meant di per se inspecting tickets. 0oreo er the dut$ of passengers to produce tickets immediatel$ arose. Ticket inspectors fell under the AauthoriLed personsB definition as the$ were to wear a uniform when on dut$.

8 Limitations by Time and Territory

Positi e law, unlike the principles of 4atural law on which it is largel$ founded, is not 'mmuta"le, @ni ersal and *"solute. 't is su"!ect to limitations "$ time and "$ territor$. This is "ecause human laws are altered from time to time and "ecause, as a general rule, the$ appl$ onl$ to countries in and for which the$ are enacted. *lso certain e(ceptions are made to the principle of the e?ualit$ of all men in the e$es of the law.

8.1 Limitations by Time

The life of e er$ law, runs from the date of its commencement to the date of its e(piration or repeal. 'ts "inding force is limited within the span of it period of alidit$. * law comes into "eing as soon as it is enacted in due form "$ the competent legislati e authorit$. @nless, a future date is fi(ed for the commencement of its operation %as it is fre?uentl$ done&, it is at once applied "$ he Courts and is "inding on all the citiLens.

The Aword analog$B itself denoted comparison and not an interpretation


General Principles of Criminal Law

But natural law re?uires that the law should not "e enforced "efore it has "een made know. This is wh$ continental theor$ re?uires that e er$ law passed "$ the legislature and declared a law in due form, is pu"lished in the Go ernment GaLette "efore 't comes into operation. This is protected "$ the Constitution in *rticle 6<%8& that states. /*hen a law has been assented to by the .resident it shall without delay be published in the $aBette and shall not come into operation until it has been so published, but .arliament may postpone the coming into operation of any such law and may make laws with retrospective effect.8 1nce ha ing "ecome into operation, the law is presumed to "e known "$ e er$one who owes o"edience to it until the date its repeal. 't must "e noted that modern doctrine does not recognise that a custom contrar$ to law ma$ "e enough to repeal or reduce the power of a law. This can "e done onl$ "$ means of another new law ex posteriori derogat priori. The new law which is inconsistent with the e(isting law takes its place. -ence there follow two important rules.

8.1.1 9Ignorantia juris neminem excusat:

-owe er if one is ignorant of a law which has not as $et "een pu"lished in the Go ernment GaLette, and commits or omits an act which later on "ecomes lia"le to punishment "$ the Criminal Court, the person is not guilt$ of the offence. This principle is protected "$ *rticle ;5%7& of the Constitution of 0alta which states that. /(o person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed.8 9oman writers esta"lished an e(ception to this principle. The$ thought that the crimes which, are merel$ an infringement of the positi e law of the state should "e e(empted from this principle, contrar$ to those that naturall$ according to the dictates of reason, are considered e er$where and at all times inherentl$ wrongful. 1n the other hand, modern legislators "elie e that the old law should appl$ ultraFacti el$ in order to a oid in!ustice.

8.1.29Lex non habet oculos retro:

*ccording the a"o e statement law operates for the future and not for the past. That is, one acted "efore the was enacted one cannot "e con icted or tried. *lread$ in 9oman da$s, it was laid down that the laws pro ide for the future and not for the past. :ith particular reference to Criminal Lia"ilit$, @lpian wrote that wrongs should not "e su"!ected to the punishment imposed "$ the law in force at the time of the trial "ut to the punishment prescri"ed "$ the law in force at the time of the commission of the wrong. * pro"lem ma$ arise when a law is repealed or changes. %a& :hat happensO %"& *nd which punishment is appliedO %a& *n apparent e(ception to the rule that a penal law cannot ha e retrospecti e effect occurs where a new law enacted after the commission of the offence is less se ere or more ad antageous to the offender, than the law in force at the time of the offence was committed. 0odern writers donBt accept an$ more the idea that penal laws are not to ha e a retrospecti e application. B/en t/e la7 against 7/ic/ t/e offence 7as committed is su&se@uentl4

General Principles of Criminal Law

repealed5 so t/at t/e act is no longer criminal . The principle accepted in continental doctrine and practice, which we follow in this matter, is that, if the law on which the charge is framed is repealed without an$ ?ualifications while the proceeding are still pending, such proceedings fall through and no sentence against the accused can "e pronounced. 'f "efore the man is tried, the legislature cancels the criminal character of the act with which he stands charged, there is no longer an$ !ustification for inflicting punishment upon him. The action of the state, in repealing the former law which prohi"ited the act, clearl$ shows that the pu"lic peace and order together with the pu"lic welfare are no longer endangered or harmed "$ such t$pe of act and that, therefore, the state has no longer an$ interest in repressing it, and conse?uentl$, no right to punish it. There are contrasting iew as regards cases of &es Judicata. There are those that sa$ that if the law is repealed after the offender has alread$ "een sentenced, there would "e the automatic remitting of an$ outstanding portion of the sentence or penalt$. 'f a new law cancels from the class of criminal offences an act which was considered as an offence "$ the pre ious law, all the effect of the trial and of the sentence should cease ipso jure. This iew is applied in 'tal$. The opposite iew is hat the repeal should ha e no effect on the result of a final and a"solute !udgement. This solution appears to "e more accepta"le and is more commonl$ adopted in modern s$stems of law. 'n 0alta the repeal of a law does not in an$ wa$ affect, as a right, an$ !udgement which has "ecome a res Judicata. The onl$ remed$ the prisoner can ha e in such a circumstance is the e(ercise in his fa our of the Prerogati e of 0erc$. This is conferred on the President of the 9epu"lic of 0alta. 1ld writers thought that the repealing law is gi en retrospecti e application "$ wa$ of an indulgence to the accused. But, modern writers do not accept this e(planation, and contend that the principle in ?uestion has a true !uridical foundation. Their argument is that, rather than an e(ception to the rule of nonFretrospecti el$ with regard to the new law, the said principle is an affirmation with regard to the former law, of the other rule that a law cannot operate after its repeal. %"& *s regards punishment *rticle <6 of the Criminal Code sa$s. /If the punishment provided by the law in force at the time of the trial is different from that provided by the law in force at the time when the offence was committed, the less severe kind of punishment shall be awarded.8 -owe er when one is to decide which is the less se ere punishment, one must consider "oth ?uantit$ and ?ualit$. :hen the ?ualit$ remains untouched, ?uantit$ is taken in consideration. This means that if the punishment remains the same, letBs sa$ imprisonment, "ut the term is increased or decreased then the least se ere punishment is applied. :hereas if the punishment changes in ?ualit$ "ut not in ?uantit$, a pro"lem arises. :hich is the least se ere punishmentO 'n choosing the punishment which causes less suffering %i.e. depri es $ou of the less important right&, a !udge does not ask the accused which punishment he prefers and usuall$ the more important right of which the offender is depri ed is considered the more se ere punishment. Hor e(ample imprisonment for a couple of da$s is more se ere than a multa of Lm/===, e en though most "e happ$ to spend a couple of da$s doing nothing than "eing fined Lm/===.


General Principles of Criminal Law

*nother situation arises when the ma(imum punishment is lowered. 'f the penalt$ incurred for a particular offence is lowered from /= to I $ears, if the punishment of 7 $ear had "een assigned to the offender and as a result he is now con icted to I $ears. # en though the I $ears would "e ad antageous to him than the 7 $ears it could "e considered unfair treatment. This is due to the fact that the punishment awarded is not proportional and hence 8 $ears should "e awarded to him. 'n the case of a res !udicata, the !udgment is final and nothing can "e done e(cept for the presidential prerogati e. -owe er, if appeal from the sentence is pending, the accused is entitled to "enefit from the less se ere punishment. 'n the case, Police s. *gostino Buge!a %/58/& there is an illustration of the application of the former *rticle <7 of the Criminal Code %toda$Bs *rticle <6&, where the agent of the crime will "enefit from an$ law which ma$ ha e "een in force "etween the commission of the offence and its trial. The latter principle was e(tended to the situation where an act was no longer considered a crime. 'n such a situation, proceeding should fall through.

8.1.&)rinciples o 4ene it or the O ender

This holds e en in situations where there are more than two laws altering the nature of a particular offence. The offender "enefits from the law pro iding the least punishment. Pessina held that in his case, if the authorities were ?uick enough in tr$ing him, he would ha e "enefited from law an$wa$. The concession was granted to him humanitatis causa. These principles of the application of more fa oura"le law ma$ "e set aside "$ the repealing or amending law. 'n 0alta, these principles are a"ided due to enactments operating for a short period of time and the amended, repealed or reFenacted.

8.1.4.ituation a ter the 1nterpretation Act o 1;<2 Chapter 24;

*rticle /<%/& states that. /*here any )ct passed after the commencement of this )ct repeals any other law, then, unless the contrary intention appears, the repeal shall not ! +a3 revive anything not in force or existing at the time at which the repeal takes effect0 %b3 affect the previous operation of any enactment so repealed or anything duly done or suffered under any law so repealed0 %c3 affect any right, privilege or liability ac-uired or accrued or incurred under any law so repealed0 %d3 affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or any liability thereto0 +e3 affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid08 and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing )ct had not been passed.

8.1.2Chan#es in the law o )rocedure

*mended laws of procedure are of immediate application and it is the law of procedure which stands at the time of the trial which applies e en if the procedure is different at the time of the fact or the procedure at the time of the trial is less or more fa oura"le to the accused, it is this

General Principles of Criminal Law

which is applied. #.g. Bill of indictment. The accused pre iousl$ had to present a not or please "$ one month "ut now this has gone down to /I da$s. :hen the form change, it resol es to "e no pro"lem. #.g. * please not should "e presented "$ not and not "$ recourse. :here the form changes, it is the law in application at the time of the filling that is applied. Therefore, the law at the time of the su"mission is applied "ecause procedural aspects do not impinge upon the position of the accused. 'n the case Police s. ,oseph #llul 2ulli an %<5.//.7<& presided "$ 0r. ,ustice Carmel *guis, the *.G. was not gi en the right to appeal t the "eginning of the procedure. The Court ruled not to allow the appeal on the ground. *pparti millFprinPip!u tanFnon retrospetti itaG talFliQi!iet tanFnatura penali, fB dan ilFkaR !idher Par li dFdritt taB lFappell !ekk !iQi akkordat lillF* ukat Senerali, dan !oTlo? sitwaLL!oni taB preQudiLL!u lillFimputati li Qew li"erati EE 2ince the legislator did not e(pressl$ pro ide that the law allowing the *.G. was gi en the right to appeal in case of pending proceedings, the situation was that when criminal proceedings were instituted, the *.G. did not ha e a right of appeal in all cases. The defendant o !ament pleaded that the *G did not ha e the right of appeal and the court accepted it "ecause it said that it would pre!udice the accused. 'n another case police s George Ha!!enLa et <==I. in this case the accused were charged with a num"er of offences that were committed in /557 were at the time the rights of the *T were "iss to points of law and the !udgment was in <==; and the *G using his newl$ ac?uired right of appeal . appealed to this !udgment . again the defence pleaded that the *G could not in oke this right of appeal "ut this time the court of criminal appeal re!ected this argument and said that the general rule in matters of procedure the law to "e applied is the law at the time of the trial

8.1.8Chan#e in the Rules o ,!idence $Article 8&;%

Corro"oration. # idence confirming the accurac$ of other e idence. Before, the corro"oration of e idence of an accomplice as needed, while now, certain criminal infringements no longer re?uire them. Hundamental was the fact that if an accomplice is "elie ed, it cannot con ict the accused unless e idence is corro"orated. *fter /577 in the certain cases mentioned in *rticle >;5, the law no longer needed corro"oration of e idence. 'n the case, 9epu"lic of 0alta s. 9a i 9amani, in <8 th ,an /575 the Courts did not consider these amendments "ut those according to the +rugs 1rdinance. Thus corro"oration of e idence was not re?uired. The Courts of criminal appeal seems to ha e held that this amendment to the law, was of immediate application.. 'n Police s. LorenLo Cuschieri 7 th ,an /55<, a constitutional case was raised upon this ?uestion. The constitutional court re!ected the arguments of Cuschieri. 'n ,oseph Picco s. *.G. %/=./<.5/&, the court following *rticle ;5%7& of the Constitution and *rticle 6 of the #uropean Con ention and e(pressl$ stated that these two sections onl$ appl$ to what the$ refer to when the fact is not criminal "ut later "ecomes criminaliLed and were the issue of the se erit$ of punishment appl$,

8.1.<Chan#e in )rescription
Police s Hrancis 2piteri <=th 0arch /56I this is the first of three mentioned cases. *t the time the time for proceedings was that of three months and pending proceedings the time or period of prescription was e(tended to one $ear. The other !udgment was police s 2tephen Bondin <Ith 1cto"er /578.the period of prescription was that of ; $ears and pending !udgments this period was e(tended to I $ears due to the amendment during the trial. The court of appeal said that if on the date of the amendment the action is time "arred according to the old prescripti e period then $ou stop there and $ou cannot reacti ate the criminal action. "ut if on

General Principles of Criminal Law

the other hand on the date of the amendment the action according to the old prescripti e period is not time "arred then it can take effect and increase the prescription period. 'n this case it was not time "arred "ut in the 2piteri case it was . the third case is police s ,oseph Grima on <nd ma$ /578. The court criticised the Bondin !udgment and said that the principle that should "e applied is that of professor 0amo on the notes of Pessina, $ou ha e to appl$ the principle of section <6 of the criminal code. 0eaning that if $ou ha e two prescription periods $ou ha e to see them "oth and see which one is more fa oura"le to the accused and appl$ that. Look at police s Louis Cordina <; ,an <==I. important . 'f the time for the criminal action e(pires "efore the amendment in law is e(tended then that action is timeF"arred and the prosecutor cannot in oke the e(tension of the prescription. The e(tension of prescription "ecomes to the ad antage of the prosecution and hence impinges upon the important issue of guilt or innocence due to the e idence which might "e o"tained if more time is accorded. 2uch ?uestion of transitor$ law are not onl$ resol ed "$ Criminal law, "ut also "$ the Constitutional law and the #uropean Con ention on -uman 9ights. @suall$, reference to te(t writers and other sources are made.

8.2 =urisdiction > Limitations by Territory

8.2.1Territorial =urisdiction
Beccaria "elie ed that the criminal !urisprudence should "e a"solutel$ and e(clusi el$ territorial without an$ e(ceptions. 'n fact he said. E the place of punishment should be the place of commission of the offence and no other :hen societ$ was less comple( and crimes were simpler "ecause the mo ement of persons and goods was restricted, the preparation, the e(ecution and the completion of a crime used to happen in the same territor$. Therefore the most o" ious e(ercise of !urisdiction was the place were the crime took place %lex locus delicti& and the court which had a !urisdiction o er the case was easil$ decided. This was held to emanate from two other important principles. /& Territorial 2o ereignt$ <& #?ualit$ of 2tates /. Territorial 2o ereignt$ was the right of the state to e(ercise supreme authorit$ o erall persons and things within the territor$. Thus the court of the state had a right to e(ercise its power o er all crimes that occurred in its territor$. #?ualit$ of 2tates was deri ed from the first principle. 'f e er$ state can legislate freel$ o er its territor$, then no other state ma$ infringe the 2o ereign right of another state "$ enacting legislation which could appl$ to the territor$ /5 of another state.


-owe er with the impro ement of technolog$ which in increased mo ement of persons and goods "etween states and since the crimes "ecame more comple(, concei a"ilit$, preparation and e(ecution could "e done in different states. Territor$ "ecame insufficient to repress crimes. 2e eral changes were needed so that there will "e no one that sta$s unpunished for an$ crimes committed. 1ne needed to make this principle more efficient to meet the needs created "ecause of the increase of mo ement. Thus "$ territor$ was not understood onl$ the

@p till now Aterritor$B means onl$ the land <6

General Principles of Criminal Law

land "ut, sea, air, ships and aeroplanes. ,urisdiction was also e(tended to ships propert$ of the countr$, or which where registered in the countr$, when these were out of the territorial waters of the same countr$. Ket still there were man$ restrictions which needed to "e eliminated. *n e(ample is the following. * man shot and kills another person across a "oundar$. This would ha e meant that the "oth states could e(ercise !urisdiction o er him. This happened in the Locker"$ Case where the conduct was caused in 0alta "ut the conse?uences were felt in 2cotland. Thus two further principles de eloped -u&Cective 9erritorial Principle

The state assumed !urisdiction o er crimes which commenced in its territor$ e en though completed within the territor$ of an other countr$. O&Cective 9erritorial Principle

This means that !urisdiction is e(ercised "$ the state where the conse?uence of the offence was felt. This ma$ also lead to Concurrent ,urisdiction, where "oth states could e(ercise !urisdiction.

8.2.2Cosmopolitan ? @ni!ersal =ustice

There are certain acts which are considered to "e crimes e er$where and, the offender ought to "e punished where er he might himself as it is dut$ of all states to aid each other in the maintenance of uni ersal order. There are in fact certain criminal offences in international law that ha e assumed uni ersalit$ e.g. pirac$% !ura gentium&, war crimes and crimes against humanit$. @ntil recentl$ these were the onl$ crimes which were considered as such, still there are others that although ha enBt $et "een included with these three ha e ac?uired a @ni ersal Character e.g. drug trafficking, white sla e trafficking and acts of terrorism. *s regards these crimes man$ countries rather than appl$ing the @ni ersalit$ principle applied the outdedere out !udicare principle especiall$ if the state recei es a re?uest for e(tradition. This is for those countries which for some reason do not want to e(tradite a particular offender it will "e o"liged "$ this law to surrender the offender to the legal authorities. 2ome e(ponents such as Cattel wishes to e(tend it to all crimes while those like Carrara wish to see it applied to those serious crimes.

8.2.&)ersonal theory o =urisdiction

This has alwa$s "een more common the uni ersal !urisdiction "ut not as common as territorial !urisdiction. The theor$ is not "ased upon the place of commission, preparation or e(ecution of offence, "ut it is "ased on the ?ualit$ meaning the nationalit$ of the person %offender or ictim&. -owe er, there still remains a remnant of Territorial ,urisdiction since the offender must "e "ack in countr$ which is accusing him. This theor$ is su"Fdi ided into two parts. /& *cti e 4ationalit$ principle) <& Passi e 4ationalit$ principle.

1.2.#.0 Active <ationalit4 principle

The state ma$ assume !urisdiction to punish its nationals for crimes committed outside its territor$. 'n these cases onl$ the nationalit$ of the offender is rele ant. 't ma$ "e said that this is the conse?uence of the so ereignt$ of the state. These ha e the dut$ to protect its

General Principles of Criminal Law

nationals. *n$ wrong to them is considered to "e a wrong against the state. *s a conse?uence of this a national carries the laws of his nati e state with him and thus he must also o"e$ them where er he ma$ "e. 't is not the le( locus delicti that is important "ut the acti e su"!ect of the crime the offender.

1.2.#.2 Passive <ationalit4 principle

The same applies here "ut what is rele ant is not the nationalit$ of the offender "ut that of the ictim. 2ince criminal law is there to protect the countr$ and the communit$, this applies where er these ma$ find themsel es. Thus it is argued that the state has !urisdiction o er acts committed on its citiLens.

8.2.4.el )reser!ation theory

This theor$ states that the state ma$ assume !urisdiction o er all those offences that ma$ "e against the interest and securit$, integrit$ and economical safet$ of it e en if committed "$ foreign nationals on foreign territor$. *gain the le( locus delicti is not important in these cases. The wa$ these principles are applied in a particular countr$ shapes the parameters of !urisdiction as emplo$ed in such a countr$. 'n case of concurrent !urisdiction states ma$ disregard the decisions taken "$ foreign while with the transfer of criminal proceedings one state can ask another state to take o er the competence and prosecutes the accused.

8.2.2.ection 2 and its interpretation

4. +23 %aving any other special provision of this Code or of any other law conferring jurisdiction upon the courts in 'alta to try offences, a criminal action may be prosecuted in 'alta , %a3 against any person who commits an offence in 'alta, or on the sea in any place within the territorial jurisdiction of 'alta0 %b3 against any person who commits an offence on the sea beyond such limits on board any ship or vessel belonging to 'alta0 %c3 against any person who commits an offence on board any aircraft while it is within the air space of 'alta or on board any aircraft belonging to 'alta wherever it may be0 >or the purposes of this paragraph the expression 6air space6 means the air space above the land areas and territorial waters of 'alta0 +d3 without prejudice to the preceding paragraphs of this sub,article, against any citiBen of 'alta or permanent resident in 'alta who in any place or on board any ship or vessel or on board any aircraft wherever it may be shall have become guilty of an offence against the safety of the $overnment or of the offences mentioned in articles 255, 25<), or of the offences mentioned in articles 522 to 52: and in article 5#E when these are committed or are directed against or on a state or government facility, an infrastructure facility, a public place or a place accessible to the public, a public transportation system, or of forgery of any of the $overnment debentures referred to in article 2DD or of any of the documents referred to in article 2DF, or of the offence mentioned in article 2<D, or of any other offence against the person of a citiBen of 'alta or of any permanent resident in 'alta0 >or the

General Principles of Criminal Law

purposes of this paragraph; 6permanent resident6 means a person in favour of whom a permit of residence has been issued in accordance with the provisions contained in article F of the Immigration )ct0 6offence against the person6 includes the offences mentioned in articles :D to <E and in articles 2<: to #E40 the expressions 6state or government facility6, 6infrastructure facility6 and 6public transportation system6 shall have the same meaning assigned to them respectively by article 52?)+?30 %e3 against any person who being in 'alta ! +i3 shall have become guilty of any offence under article :F+#3 or articles 2<:, 2<<, #22, #2? to #2:, ##E, #?< to #42, 522, 52#, 52?), 52?", 52D or 52F when committed or directed on or against the person of a protected person or to the prejudice or injury of such person or likely to endanger the life or to cause serious injury to the property, life or health of such a person, or in connection with an attack on any relevant premises or on any vehicle ordinarily used by a protected person or when a protected person is on or in the premises or vehicle0 or +ii3 shall have committed any act which if committed in 'alta would constitute an offence and such act involved the use of a bomb, grenade, rocket, automatic firearm, letter bomb or parcel bomb which endangered persons, although the offences referred to in this paragraph shall have been committed outside 'alta; .rovided that for the purposes of sub,paragraph +i3 of this paragraph it shall be immaterial whether the offender knew that the person was a protected person0 %f3 against any person who ! +i3 commits any offence in premises or in a building outside 'alta having diplomatic immunity due to the fact that it is being used as an embassy, a residence or for such other purpose connected with the diplomatic service of 'alta0 or +ii3 commits an offence in a place outside 'alta when such person enjoys diplomatic immunity by virtue of such service0 %g3 against any person who being in 'alta, shall be a principal or an accomplice in any of the crimes referred to in article :F+#3, or in articles 25<), 2<:, 2<<, #22, #2? to #2:, ##E, #?< to #42, #<:, or in articles 522 to 52: or in article 5#E when these are committed in the circumstances mentioned in paragraph %d3 or %e3 of this sub,article, or in a crime which is committed by any act as is mentioned in paragraph %e3+ii3 of this sub,article, or conspires with one or more persons for the purpose of committing any of the said crimes, although the crimes shall have been committed outside 'alta0 %h3 against any person in respect of whom an authority to proceed, or an order for his return, following a re-uest by a country for his extradition from 'alta, is not issued or made by the 'inister responsible for justice on the ground that the said person is a 'altese citiBen or that the offence for which his return was re-uested is subject to the death penalty in the country which made the re-uest, even if there is no provision according to the laws of 'alta other than the present provision in virtue of which the criminal action may be prosecuted in 'alta against that person0

General Principles of Criminal Law

+i3 against any person who commits an offence which, by express provision of law, constitutes an offence even when committed outside 'alta; .rovided that no criminal action shall be prosecuted against the .resident of 'alta in respect of acts done in the exercise of the functions of his office. +#3 >or the purposes of sub,article +23 +b3 and %c3, a ship or vessel or an aircraft shall be deemed to belong to 'alta if it is registered in 'alta or, if it is not registered anywhere, is owned wholly by persons habitually resident in 'alta or by bodies corporate established under and subject to the laws of 'alta and having their principal place of business in 'alta. +53 >or the purposes of sub,article +23 +e3; 6) protected person6 means, in relation to an alleged offence, any of the following; %a3 a person who at the time of the alleged offence is a Gead of %tate, a member of a body which performs the functions of Gead of %tate under the constitution of the %tate, a Gead of $overnment or a 'inister for >oreign )ffairs and is outside the territory of the %tate in which he holds office0 +b3 a person who at the time of the alleged offence is a representative or an official of a %tate or an official or agent of an international organiBation of an inter, governmental character, is entitled under international law to special protection from attack on his person, freedom or dignity and does not fall within the preceding paragraph0 %c3 ) person who at the time of the alleged offence is a member of the family of another person mentioned in either of the preceding paragraphs and ! +i3 If the other person is mentioned in paragraph %a3 above, is accompanying him, +ii3 If the other person is mentioned in paragraph +b3 above, is a member of his household0 6relevant premises6 means premises at which a protected person resides or is staying or which a protected person uses for the purpose of carrying out his functions as such a person0 and 6vehicle6 includes any means of conveyance0 and if in any proceedings a -uestion arises as to whether a person is or was a protected person, a certificate issued by or under the authority of the 'inister responsible for foreign affairs and stating any fact relating to the -uestion shall be conclusive evidence of that fact. Application of Article " *rticle I la$s down grounds upon which !urisdiction can "e e(ercised under our law. -owe er this is not the onl$ reference that we ha e in our law as regards this su"!ect. There are other statutes that offer grounds for !urisdiction like for e.g. +angerous +rug 1rdinance and the Ci il * iation 2ecurit$ *cts. 1ne must also refer to the 'nternational Criminal Court *ct %Chapter 8I; of the Laws of 0alta& for further help. *rticle I %/& %a& the principle referred to in this paragraph is the Territorial ,urisdiction Principle together with its e(tensions i.e. Territorial :aters, *ir space and land. There were


General Principles of Criminal Law

certain places that were considered as a 2anctuar$ and so the police could not enter to re?uest for someone, "ut this was a"olished "$ Proclamation 4o. C' of /7<7. *rticle I %/& %"& The #(tended Territorial Principle is the enforced through this article. This goes "e$ond %a& "ecause it mentions also ships and essels that "elong to 0alta<=. *rticle I %/& %c& # en in this section the e(tended territorial Principle is enforced. The 0altese courts ha e !urisdiction o er an$one that commits an offence on an$ aircraft while it is in 0altese air space and on an aircraft, propert$ of 0alta where er it ma$ "e. The air space referred to is that a"o e the territor$ %land& and also that a"o e the territorial waters. These first three paragraphs refer onl$ to the Territorial Principle, together with its e(tensions, since the onl$ ?ualit$ needed so that the 0altese courts would ha e ,urisdiction, is the place where the offence happened lex locus delicti. The nationalit$ or the t$pe of the crime, are irrele ant for these paragraphs. Thus the 2elfFPreser ation and Personal ,urisdiction are as a result irrele ant as well. *rticle I %/& %d& *ccording to this paragraph !urisdiction ma$ "e e(ercised when the interest of the state is "eing hindered, $et the offence must "e committed "$ a 0altese citiLen or "$ a permanent resident in 0alta. This means that it is a mi(ture of 2elfFPreser ation and *cti e 4ationalit$ Principle. The place where this offence is committed is irrele ant. The offences are listed as well and so it is not an$ crime that ma$ "e punished "ut onl$ those listed thereof. There is also a hint of @ni ersal ,urisdiction with the mentioning of article /;5 %a&, which refers to torture and inhuman punishment "$ officials "ut which is not $et part of the @ni ersal Principle. Torture will "e punisha"le "$ 0altese Courts and is punisha"le "$ the 'CC.</ 0oreo er there are a serious of other offences that fall under the ,urisdiction of the 0altese courts is committed under the circumstances mentioned in article I%/& %d&. %These offences are marked on the notes p. ;IF;>& * practical e(ample. F *n 'talian citiLen fl$ing British *irwa$s, on -igh seas, steals a 0altese CitiLen. The 'talian has a 0altese friend with him that punches the 0altese or an$ other person on "oard of the plane. The 0altese courts would ha e ,urisdiction o er the 0altese %the one who punched& since he is 0altese and committed an offence and since he punched another 0altese "oth are prohi"ited "$ this article. :e thus ha e also the Passi e 4ationalit$ Principle in I%/& %d& "ut it has to "e "$ a 0altese CitiLen or permanent resident Ket according to *rticle I %/& the 0altese Courts donBt ha e ,urisdiction o er the 'talian since he is not 0altese or a permanent resident of 0alta and since the offence was committed on high seas and not on 0altese Territor$) on an airship not propert$ of 0alta and the offence was against the propert$ of the person and not against the person itself. *rticle I %/& %e& *rticle 76%<& is the closest one can get to @ni ersal ,urisdiction this states. *here a person who commits the crime referred to in the last preceding article threatens to kill, to injure or to continue to detain or confine the person arrested, detained or confined, with the object of compelling a state, an international governmental organiBation or person to do or to abstain from doing an act he shall be liable to the punishment of imprisonment for life. The protected person, head of state, am"assadors etc, mentioned in this part are not necessaril$ 0altese.
<= </

2ee *rticle I %<& for the meaning of Aship or essels "elonging to 0altaB 'nternational Criminal Court ;<

General Principles of Criminal Law

The su"Fparagraph %ii& refers to acts which are offences in 0alta "ut which are committed outside 0alta, "$ a person "eing in 0alta. *rticle I %/& %d& The 0altese Courts ha e ,urisdiction o er %/& an$ person who commits offence in an$ #m"ass$ or "uilding connected with diplomatic ser ice of 0alta en!o$ing in iola"ilit$ diplomatic immunit$) %<& and o er an$ person outside 0alta that en!o$s diplomatic immunit$ on "ehalf of 0alta. :arships and em"assies were traditionall$ considered as territor$ of 0alta or part of 0alta in another countr$. 2ince offences are committed on 0altese territor$, then !urisdiction can onl$ "e e(ercised "$ the 0altese *uthorities. Toda$, em"assies are not an$ longer considered to "e territor$ of the 0alta "ut territor$ of the countr$ hosting the em"ass$. Ket these ha e in iola"ilit$ the host states are precluded from entering these premises due to their diplomatic immunit$. Police cannot merel$ "arge in 0altese em"assies in a foreign countr$. This immunit$ can "e wa ed and the offender is surrendered to the host countr$. This shows that the em"ass$ is not part of the territor$ of 0alta. But since decided not to remo e this immunit$, paragraph %f& was created. This is an e(ercise of e(pedienc$. *rticle I %/& %g& 'f an$ person who is in 0alta and has committed an$ of the crimes mentioned in this part outside 0alta "ut the conspirac$ occurred in 0alta, the 0altese Courts ma$ prosecute him *rticle I %/& %h& the principle "ehind this paragraph is Aout dedere out judicareB i.e. if the countr$ refused to e(tradite the accused then it is "ound to e(ercise !urisdiction. This was created since there could "e cases were we could not e(tradite "ut we had no ground for !urisdiction. The onl$ e(ception is that regarding the President of 0alta who ma$ commit act or criminal offences during the e(ercise of functions of his office. 4otes. F Territorial waters and Contiguous Jones Territorial :aters e(tend to /< nautical miles off the coast of the 0altese 'slands. But for the Hish 'ndustr$ *ct these shall e(tend to <I miles Contiguous Jone is a Lone defined in the act as ad!acent to the Lone of territorial waters which e(tends to <8 nautical miles F 2hips in Territorial waters :ith respect to ships within territorial waters of 0alta, whate er nationalit$ of ship 0altese courts can e(ercise !urisdiction unless the ship is a war ship which en!o$s in iola"ilit$. The offender must "e on land so that he is arrested. F The person must "e in 0alta for the courts to tr$ him. 't is irrele ant how he came to 0alta Case >a7 F 9egina s. -enr$ Cella /7 // /757 Court ruled that legalit$ or otherwise of the accused arrest was irrele ant as to whether the court had an$ right to tr$ him

General Principles of Criminal Law

F 9e( s. #duardo Hrendo =I /= 8> 9eferred to pre ious case and agreed with it, since illegalit$ of arrest does not pre ent court from tr$ing accused "efore it.

< Criminal Liability

-e who commits a wrong is said to "e lia"le or responsi"le for it. Lia"ilit$ or responsi"ilit$ is the "ond of necessit$ that e(ists "etween the wrongFdoer and the remed$ of the wrong. This Avinculum jurisB has its source in the supreme will of the state, indicating its supremac$ "$ will of ph$sical force in the last resort against the unFconforming will of the offender. :e ha e not to in estigate the leading principles which determine the conditions, the incidence and the measure of responsi"ilit$ for criminal wrongFdoing. Criminal lia"ilit$ is generall$ e(plained with ?uite accurac$ in the old legal ma(im Aactus non facit reum nisi mens sit reaB U the act alone does not amount to guilt) it must "e accompanied "$ a guilt$ mind. That is to sa$ that there are two conditions two are fulfilled "efore criminal responsi"ilit$ can rightl$ "e imposed. the material and formal conditions. Before imposing punishment the law must "e satisfied of two things. that an act has "een done which, "$ reason of its harmful tendencies or result, is fit to "e repressed "$ wa$ of penal discipline) and secondl$, that the mental attitude of the doer towards his deed was such to render punishment effecti e for the future and therefore !ust.

<.1 Material Condition o liability

* material condition is the doing of some act "$ the person to "e lia"le. * man is to "e accounted responsi"le onl$ for what he himself does, not for what other persons do, or for e ents independent of human acti it$ altogether. -ere the term act is used in the widest sense of which it is capa"le. :e mean "$ it an$ e ent which is su"!ect to the control of the human will. *s to the nature of the will and of the control e(ercised "$ it, it is not for law$ers to dispute, since it is a pro"lem of philosoph$ or ph$siolog$, not of !urisprudence. 1f these acts there are arious species. 'n the first place, the$ are either positi e %commission& or negati e %omission&. 'n the second place these could "e either internal or e(ternal acts. The former are acts of the mind, while the latter are act of the "od$ to think is an internal act, while to speak is an e(ternal act. Criminal law is not concerned with merel$ the internal acts. * "are intent to commit a crime in not amena"le to criminal !ustice, $et some outward act must "e superadded to constitute a crime. the imagination of the mind to do wrong, without an act done is not punisha"le in our law <<. The will must not "e taken for the deed unless there is an e(ternaliLation of that will formed in the mind of the person, which shows that progress had "een made in the direction of it or towards maturing and effecting it. *t first sight it would seem that conspirac$ is an e(ception to the rule, $et this is not the fact since for two persons to agree upon some act or on something in general there must "e an e(ternaliLation of their thoughts. # er$ act is also made up of three different factors material elements or constituent parts) that are. /. its origin is some mental or "odil$ acti it$) <. its circumstances, and ;. 'ts conse?uence.

Lord 0ansfield in -ales s. Petit


General Principles of Criminal Law

Let us suppose that in practicing with a rifle, ' shoot some person. The material elements of m$ act are the following. its origin or primar$ stage, namel$ a serious of muscular contractions, "$ which the rifle is raised and the trigger pulled) secondl$, the circumstances, the chief of which are the facts that the rifle is loaded and in working order and that the person killed is in the line of fire) thirdl$, the conse?uences, chief of which are the fall of the trigger, the e(plosion of the powder, the discharge of the "ullet, the passage through the "od$ the man killed and the death. :hate er acts the law prohi"its as "eing wrongful and for which a man is deemed to "e lia"le, is so responsi"le in respect of its origin, its circumstances and its conse?uence. Hor unless it has its origin in some mental or ph$sical acti it$ of the defendant, it is not his act at all and apart from its circumstances and results it cannot "e wrongful. The harmful conse?uence of an act prohi"ited "$ law need not alwa$s, howe er, "e actual) the$ ma$ "e merel$ anticipated. 'n other words, an act ma$ "e mischie ous in the e$es of the law in two wa$s either in its actual results or in its tendencies. Criminal wrongs normall$ "elong to the latter class, for the law punishes e en the attempt. Criminal lia"ilit$ is usuall$ sufficientl$ esta"lished "$ the proof of some act which the law deems dangerous in its tendencies, e en thought the issue is in fact harmless or e en unsuccessful attempts. The material "adness of an act depends on the actual nature, circumstances and conse?uences of it.

<.2 *ormal Condition o Liability

The formal condition, on the other hand, is the Amens reaB, or the guilt$ mind with which the act is done. 't is not enough that a man had done some act which, on account of its mischie ous tendencies or results, the law prohi"its. "efore the law can !ustl$ punish the act, an en?uir$ must "e made into the mental attitude o the doer. Hor although the act ma$ ha e "een materiall$ or o"!ecti el$ wrongful, the mind and will of the doer ma$ ha e "een innocent. 'ts formal "adness depends on the state of the mind or the will of the actor the mens rea. This mens rea ma$ assume one or the other of two distinct forms. wrongful intention dolus %on purpose& or culpa"le negligence culpa %carelessness&. Both these mental attitudes are such as to make punishment effecti e. 'n the first case penal disciple will furnish him with sufficient moti e to choose the right instead for the future. 1n the other hand, in the second case were he committed the for"idden act without wrongful intent "ut with a grie ous lack of care law will induce him to "e more attenti e in future. Ket if the act is committed with neither or the two, "ut he did his "est as a reasona"le man to a oid it, there could "e no good purpose in holding him lia"le to that act prohi"ited "$ law. Ket there ma$ "e e(ceptions in which the law sees fit to "reak through the rule as to mens rea. 't ma$ hold a man responsi"le for his acts, independentl$ altogether of an$ wrongful intention or culpa"le negligence. :rongs which are thus independent of mens rea are distinguished "$ 2almond as wrongs of a"solute lia"ilit$. 't follows that in respect of the re?uirement of mens rea, offences ma$ "e of three kinds. /. 'ntentional or willful offences, in which the mens rea amounts to intention purpose or design) <. 1ffences of 4egligence, in which this assumes the less serious from of mere negligence as opposed to wrongful intent) ;. 1ffences of a"solute lia"ilit$, in which the mens rea is not re?uired, neither wrongful intent nor culpa"le negligence "eing recogniLed as a necessar$ condition of responsi"ilit$.


General Principles of Criminal Law

<.& Criminal 1ntention

Intent will be found to resolve itself into two things; foresight that certain conse-uences will follow from an act, and the wish for those conse-uences working as a motive which induces the act -olmes. 'ntention, in general, is the purpose or design with which an act is done. 't is the foreF knowledge of the act of the act) coupled with the desire or it) such foreFknowledge and desire "eing the cause of the act, in as much as the$ fulfill themsel es through the operation of the will. 't is thus the com"ined operation of the intellect and the will. it is the stri ing of the will towards a certain end represented "$ the intellect. Carrara makes an important distinction "etween direct and indirect intention. =irect intention 'ntention is direct since the act done, although lia"le to fail, had "een done with the direct purpose of producing the desired effect. Hor intention does not alwa$s in ol e certaint$ of e(pectations. 'ntention does not cease to "e direct whene er the conse?uence of oneBs act is foreseen and desired, thought the means used to "ring a"out that conse?uence can onl$ pro"a"l$ achie e the purpose. There is e?ual a direct intention on the part of that hus"and who, with the purpose of poising his wife, directl$ administers her the poison, as on the part of that other hus"and who, with the dame purpose, puts into the house food mi(ed with poison in the hope that she its it and dies. +irect intention is the foresight of a desired issue, howe er impro"a"l$, not the foresight of an undesired issue, howe er pro"a"le. *ndirect intention 'ntention, according to Carrara is indirect when the e ent was merel$ a possi"le conse?uence of oneBs act, which e en was either not foreseen at all, or was foreseen "ut not desired. 'f such an e ent was foreseen, and notwithstanding such foresight the means were desired although the e ent itself ensuing such means was not desired, the indirect intention is said to "e positi e. 1n the other hand, if the possi"le e ent was not onl$ not desired, "ut not e en foreseen, the indirect intention is said to "e negati e. +irect intention and positi e indirect intention gi e rise to dolus, i.e. criminal intent. 4egati e indirect intention gi es rise to culpa, i.e. negligence, or to casus, i.e. accident or misad enture. Carrara defines criminal intent %dolus& as the more or less perfect intention of doing an act which is known to "e contrar$ to the law. This does not mean that in each particular case it is necessar$ to en?uire whether the defendant actuall$ knew of the e(istence of law, since ignorance of law is not an e(cuse. 4or is it necessar$ that the intention of the doer should "e directl$ that of "reaking the law. 4or is it necessar$ that the intention of the doer should "e directl$ that of "reaking the law. :hat is essential is that the agent knew of that he was doing a wrong, that his act was in!urious to a right of others protected "$ criminal law. *ccording to Menn$ in all ordinar$ crimes the ps$chological element which is thus indispensa"le ma$ "e fairl$ accuratel$ summed up as consisting simpl$ in intending to do what $ou know to "e illegal. To me the last part conflicts with the Latin ma(im Ignorantia juris neminem excusat since it e(pects this element re?uires.

General Principles of Criminal Law

a& The power of olition. i.e. the offender must "e a"le to Ahelp doingB what he does) "& Mnowledge that what the offender is doing is wrong) wrong either intrinsicall$ or, at an$ rate, in prospect of such circumstances s he has ground for foreseeing) c& Horesight of such circumstances. This rule seems to create a er$ comple( perspecti e of criminal intent, and also cause the prosecution more difficult$ in o"taining e idence of it. Hor to "orrow the sa$ing of a medie al !udge, which 2ir Hrederick Pollock has made, the thought of man is not tria"le, for the +e il himself knoweth not the thought of man U one cannot tr$ manBs thought since not e en the de il know it. But this seldom arises in practice. for in most cases the law regards the criminal act itself as sufficient prima facie proof of the e(istence of criminal intent. 'n #ngland, e er$ sane adult is presumed to intend the natural or necessar$ conse?uences of his willful conduct. The law treats as intentional all conse?uences which the actor foresees as the pro"a"le results of his wrongful act, the known conse?uences of an illegal act are imputed "$ law as intentional. 4o man who knows that certain results will flow from his illegal act will "e suffered to sa$ that he did not intend them. Menn$ said that. Purpose alwa$s in ol es the idea of a desire E Hor a man is not ordinaril$ said to intend an$ conse?uences of his act which he does not desire... But the presumption that e er$ man knows and intends the natural and pro"a"l$ conse?uences of his act is, no dou"t re"utta"le. 'ndeed, man$ writers now regard the rule as "eing merel$ an e idential presumption, a commonFsense inference that ma$ "e drawn from circumstances and not a principle or proposition of law. Thus if the accused can show that the conse?uence which has in fact resulted, though ph$sicall$ ine ita"le, was not, in the particular case, an o" ious result of his act, or if he can show that the result which has happened was pro"a"le onl$ when certain circumstances coFe(isted and that he was not aware of the e(istence of such circumstances, then in "oth these cases the presumption is re"utted and he cannot "e held to ha e intended the result. *gain if he can pro e that the possi"ilit$ of such a result ne er occurred to his mind, then although such heedlessness will pro"a"l$ render him lia"le to a charge of criminal negligence, he cannot "e held to ha e intended the result. But if he was aware that certain conse?uences might follow the act which he contemplated doing, and $et deli"eratel$ proceeded to do the act, he must "e taken to ha e intended those conse?uences to follow, e en though he ma$ ha e hoped that the$ ma$ not. Ket this could "e re"utted "$ the proof that at the time he committed the act, he had not a mind capa"le of forming an intention. *ccording to Carrara for a man to "e held criminall$ lia"le for an offence, it is not necessar$ that his wrongful intent "e contemporaneous or coF incident with the last act of completion of such a crime. 2ome times the act from which criminal responsi"ilit$ arises is separated from the act that competes the crime "$ an inter al. This could "e seconds or e en da$s. Hor e(ample, no kills or ro"s someone or something the same instance the criminal intention is formed in his mind. 0oreo er when * sends a "o( of poisoned chocolates to B with the intention to kill him the completion of his act could occur da$s later when B eats the chocolates. # en in this case if * could "e held criminall$ lia"le for the wrongful intent and for BBs death. 'f in the mean time * falls ictim of a delirium tremens which makes him utterl$ irresponsi"le and is still in the same state when his act is completed. su"se?uentl$ * reco ers. 2till he cannot escape responsi"ilit$ "ecause at the time the crime was completed he was dolo incapax. -is responsi"ilit$ proceeds from the act which caused the e ent and to hold him responsi"le it is sufficient that he was of a murderous intent at the time he committed the act which was later the cause of BBs death.


General Principles of Criminal Law

The same rule applies in all cases in which the last act of consummation is not performed "$ the defendant "ut "$ the ictim himself, or "$ a third part$ not concerned in the crime or "$ a coFoffender %e.g. a hired assassin&. 'n all such cases it ma$ happen that at the time in which the intended crime is completed the person who designed or planned or ordered or, in an$ other manner was the efficient cause of the crime is dolo incapax or has repented his original intent. *ll this will not e(onerate him from his responsi"ilit$ which arises out of the wrongful intent which accompanied the causati e act, although it no longer su"sists when the e ent ensues. 1f course, in all cases the "asic condition of criminal lia"ilit$, such as competent age, sanit$, freedom from certain kinds of coercion and mistake, must e(ist "efore there can "e an$ guilt$ mind

<.&.11ntention and Moti!e

* wrongful act is seldom intended and desired for its own sake. The wrong does has in iew some ulterior scopes which he desires to o"tain "$ means of his acts. This ulterior intent is called the moti e of the act. ContED

<.&.20inds o Criminal 1ntent

.#.2.0 Generic and -pecific intent
The intent is generic %dolus genericus& when it consists simpl$ in intending to do an act which is known to "e illegal. This ordinar$ generic intent is the necessar$ and, as a rule, sufficient ps$chological element for imputa"ilit$ in respect of willful crimes. But in some cases a particular or specific intent is re?uired "$ the definition of certain crimes. this particular intent is constituted "$ the special purpose which the doer actuall$ had in committing the crime. 't sometimes ser es to distinguish "etween offences that could "e either the same or similar

.#.2.2 =eterminate and *ndeterminate

:hen the idea and the fact, the will and the deed, the design and the issue are completel$ coF incident and the e ent corresponds in e er$ part of it to the precedent idea in the agentBs mind and of which it is the outcome and realiLation. it is known as +eterminate. #(ample when * wants to kill and not merel$ to hurt B, and actuall$ kills him. The crime committed corresponds precisel$ to the crime intended. :hen on the contrar$, the agent wrongfull$ intended and desired to produce one result "ut had present "efore his mind the possi"ilit$ of producing a more serious result without, howe er, positi el$ wishing to produce such gra er result, the intent of the agent with reference to the e ent is said to "e indeterminate. * shoots at B intending to cause him "odil$ harm "ut not shrinking from the possi"ilit$ which he foresees of killing him. The distinction has hardl$ an$ importance, for as 'mpallomeni points out all authorities are in agreement that an indeterminate intent entails the same degree of lia"ilit$ as a determinate intent.

<.&.&Aood *aith
This is the opposite concept of wrongful intention. Thus "$ good faith is meant the reasona"le "elief of the lawfulness of the e ent which is oluntar$ caused. 'n other words, a man is said to ha e acted in good faith when he has done an act which is materiall$ or o"!ecti el$ contrar$ to criminal law, not onl$ without an$ intention of iolating such law "ut

General Principles of Criminal Law

also without an$ intention of committing a wrongful act at all. 't is essential that the su"!ecti e state of the doer should not "e the result of the ignorance of, or an error as to, the e(istence or the operation of the penal law and further, that the case "e not one in which the law imputes to the doer the conse?uence, e en if undesired, of his oluntar$ act. Good faith, therefore, alwa$s re ol es itself into a mistake of fact or a mistake of law, "ut other that criminal law. 't is to "e clearl$ noted that Adou"tB is neither ignorance nor mistake, "ut knowledge, in as much as certaint$ is not an essential attri"ute of guilt$ knowledge. +ou"t therefore, does not e(clude wrongful intent, unless of course in some particular law full certaint$ is re?uired. But on the other hand it is not essential that the good faith "e a"solute. * man, who commits an act a"sentFmindedl$ or thoughtlessl$, cannot "e said to ha e acted with AperfectB good faith. "ut he cannot "e said either to ha e acted with wrongful intent. *t most this could amount to negligence which howe er is not criminall$ punisha"le e(cept in the cases e(pressl$ laid down in the law. The ?uestion whether there has "een good faith is one of fact which has to "e considered in each case with reference to all the surrounding circumstances.

<.4 Criminal Be#li#ence

/The will to do an act which is contrary to law without the consciousness of its wrongfulness, which consciousness could, however, have been had if the agent has used greater care in reflecting upon the possible conse-uences of the act.8 ! Carrara Criminal lia"ilit$ also arises from negligence %culpa&.

<.4.1.ub+ecti!e theory
* theor$ propounded "$ Carmignani and ela"orated "$ Carrara, states that negligence is a su"!ecti e fact, or in other word, a particular state of the mind. This consists in a failure to "e alert, circumspect, or igilant, where"$ the true nature, circumstances and conse?uences of manBs acts are pre ented from "eing present in his consciousness. The willful wrong doer is he who knows that his act is wrong. the negligent wrong doer is he who knows that his act is wrong. the negligent wrong doer is he who does not know it, "ut would ha e known it were it not for his mental indolence. 'n these definitions the essence of negligence is made to consist in the possi"ilit$ of foreseeing the e ent which has not "een foreseen. The agent, who caused the act, did not intent or desire it, "ut could ha e foreseen it as a conse?uence of his act if he onl$ has minded. so his negligence lies in his failure to foresee that which is foreseea"le. 't is important not to confuse foreseeFa"ilit$ with foresight. * man %/& ma$ not foresee at all an actual result which su"se?uentl$ happens) or %<& he ma$ foresee such a result as possi"le "ut hopes to a oid it. *ccording to Carrara there is mere negligence in "oth h$potheses, pro ide the act was done animo nocendi. 'f, in the second h$pothesis, the act was done animo nocendi then it will "e imputa"le as intentional. Ket if the act was done with an innocent purpose, there is mere negligence in respect of the effect produced "ecause no to foresee that a thing m$ happen and to foresee that a thing ma$ not happen amounts to the same thing.


General Principles of Criminal Law

Carrara gi es the following e(ample. * fired his gun at a wild "east in the thick of the forest. in the "ackground there was a man whom he killed. * had not foreseen at all that the man was there, "ut if he could ha e foreseen it, then he is guilt$ of negligence %-$pothesis /&. * fire at a "east and at a great distance from it there was a man and he saw him. -e made an estimate of chances and he foresaw that, in iew of the distance "etween the man and his target, the shot would not hit him, $et it happened. * is to "lame "ut merel$ for negligence %-$pothesis <&. 't would "e erroneous to o"!ect that if foresaw that possi"ilit$ of hitting him and that, therefore, ' acted with wrongful intent % dolus& 'n this case a mistaken assessment of the chances is made and here lies *Bs negligence "ecause it was possi"le for * if he had taken greater care to ascertain to ha e foreseen what actuall$ happened. $et it is still wrong to identif$ and confuse the foresight of not hitting with the foresight of hitting. The matter would ha e "een different if * shots a B with the intention of causing harm and in iew of the distance * foresaw that he could kill B. 2hould the fact ensue, * is in a state of indeterminate wrongful intent with respect to such homicide. * is not lia"le to mere negligence "ecause his act was done with the criminal purpose of causing harm. * man who acts with such purpose can ne er "e guilt$ of mere negligence. "ecause his negligence is in respect of the more serious result of the original wrongful intent.

<.4.2Ob+ecti!e theory
*ccording to this theor$, negligence is not a particular state of mind, "ut a particular kind of conduct. 't is a "reach of dut$ of taking care and to take care means to take precautions against the harmful results of oneBs actions, and to refrain from the unreasona"l$ dangerous kinds of conduct. 'n this theor$ the ?uestion whether the e ent complained of could or could not ha e "een foreseen and a oided is irrele ant. what is essential and sufficient is that the defendant has "een responsi"le for conduct falling short of the standard of care which e er$ man li ing in societ$ is e(pected to use in his actions, and that such conduct has a direct and efficient casual connection with the ensuing harmful results. 'f these two conditions are fulfilled it is not necessar$ to pro e that the e ent was foreseea"le. inasmuch as negligent crimes are punisha"le not "ecause the in!urious result was more or less foreseea"le) "ut "ecause the law is making it an offence to "e careless, imprudent etc.

.6.2.0 Criticism of t/e -u&Cective t/eor4

0ost of the writers agree that this theor$ is not accepta"le. 'f the en?uir$ into the state of mind of the agent is set aside it ma$ "ecome impossi"le to distinguish "etween negligent wrong doing and accident, and "etween negligent wrong doing and intentional wrong doing. The negligence of needful precautions or the doing of dangerous acts is not necessaril$ wrongful at all, for it ma$ "e due to ine ita"le mistake or accident or e en impossi"le to foresee. 1n the other hand it ma$ "e willful and not negligent. Hor e(ample a poison "ottle ma$ "e left unla"eled with the intent that someone drinks from it "$ mistake. 'n this case we cannot distinguish "etween intentional and negligent wrongdoing sa es "$ looking into the mind of the offender and o"ser e his su"!ecti e attitude towards his act and its conse?uences. 'f such conse?uences were foreseen and desired, the offence is intentional) if the$ were not foreseen nor desired, "ut could ha e "een foreseen, the offence is negligent) if the$ were neither foreseen nor desired, not could ha e "een foreseen, there is no offence "ut sheer accident. There are some writers that in principle accept the su"!ecti e theor$ of negligence, $et hold that this theor$ is not wholl$ ade?uate. This is dou"tless, the$ sa$, the commonest form of

General Principles of Criminal Law

negligence "ut it is not the onl$ form. 'f ' cause harm, not "ecause ' intended it, "ut "ecause ' was thoughtless and did not ad ert to the dangerous nature of m$ act, or foolishl$ "elie ed that there was no danger, ' am certainl$ guilt$ of negligence. But there is another form of negligence in which there is no thoughtlessness or inad ertence, "ut ' ma$ e(pose other to risk. :hen ' consciousl$ e(pose another to the risk of wrongful harm, "ut without an$ wish to harm him, and harm actuall$ ensues, it is inflicted the said writers sa$, not willfull$, since it was not desired, nor inad ertentl$, since it was foreseen as possi"le or e en pro"a"le, "ut ne ertheless negligent. 4othing that is not desired, howe er foreseen, can "e said to "e trul$ intended.

<.4.&Be#li#ence under our Criminal Code

Like man$ other codes, our code refrains from gi ing an$ definition of negligence in the general pro ision, and of creating lia"ilit$ "$ reason of negligence. 'n the pro isions concerning crimes in respect of which lia"ilit$ is contracted "$ reason of negligence, our law sometimes makes use of the single word AnegligenceB. *t other times it uses the two words Anegligence or imprudence %section /I;&. 'n $et other cases responsi"ilit$ for the crime is incurred on account of imprudence, carelessness, unskilfullness in an art or a profession or nonFo"ser ance of regulation. These words %negligence, imprudence and carelessness& are not defined, "ut it is clear that "$ them the law means generall$ the a"sence of such care and precaution as it was the dut$ of the defendant to take in the circumstances. *s to the other two e(pressions the$ are selfFe(planator$. 4ow the ?uestion arises whether in the s$stem of our Code it is essential, in order that there ma$ "e lia"ilit$ for a negligent offence, that the harm caused should ha e "een foreseea"le "$ the accused. The answer is $es for the following reasons. /. 1ur pro isions regarding crimes of negligence are to a great e(tend modeled on the 'talian Code which "ases itself on the 2u"!ecti e theor$ as regards this issue. # en though this was criticiLed "$ man$ authors, the courts seem to appl$ this theor$) <. 'n the second place, negligence, imprudence and carelessness are su"!ecti e facts. The$ connote the su"!ecti e attitude of the offender towards the acts and their conse?uences, which attitude pre ents him from ac?uiring foresight and consciousness of them and "ut for which he could ha e ac?uired such foresight or consciousness) ;. *ccording to 0aino this su"!ecti e element is necessar$ e en when the negligence consists in the nonFo"ser ance of regulation. *ll this means that whate er the form the negligence takes, if the ensuing harm was not onl$ unforeseen "ut also unforeseea"le there cannot "e an$ ?uestion of criminal lia"ilit$ in respect of such harm. pro casu fortuito handem orit) sa ing of course, an$ lia"ilit$ contracted "$ reason of the fact itself constituting the negligence %e.g. the nonFo"ser ance of the regulation& in so far as such a fact constitutes an offence known to the law. *nd when we sa$ that the e ent was unforeseea"le, we do not mean that it was unforeseea"le a"solutel$. we mean onl$ that it was unforeseea"le "$ the standard of care, which the law re?uired e er$ man to use in his actions.

.6.#.0 -tandard of Care

There are cases were mere negligence is not enough. 'n these cases the law is not satisfied with the mere a"sence of an$ intention to inflict in!ur$ or to cause harm, "ut demands the positi e use of such care as is calculated to a oid the possi"ilit$ to a oid the harm or in!ur$. The pro"lem is what measures are does that the law demand.

General Principles of Criminal Law

The law does not demand the highest degree of care of which human nature is capa"le. 1ur Code, as 'mpallomeni remarks, makes negligence consist in imprudence, carelessness, unF skillfulness in an act of profession etc. The law demands not that which concei a"l$ possi"le "ut that which is reasona"le. The amount of prudence or care which the law actuall$ demands is that which is reasona"le in the circumstances of the particular case. This o"ligation to use reasona"le care is er$ commonl$ e(pressed "$ reference to the conduct of a Areasona"le manB or an Aordinar$ prudent manB, meaning that negligence is the omitting to do something that a reasona"le man would do, or doing something a reasona"le man would not do.

<.4.4De#rees o Be#li#ence
:riters who found their conception of negligence on the criterion of foresee a"ilit$ of the e ent, distinguish "etween. /. gross negligence %culpa lata& foreseen "$ all men) <. ordinar$ negligence %culpa levis& foreseen "$ reasona"l$ prudent men) and ;. slight negligence %culpa levissima& where it could not ha e "een foreseen e(cept "$ the use of an e(traordinar$ and uncommon care and does not gi e rise to criminal lia"ilit$ Ket modern writers do like this classification since the law gi es wa$ onl$ to one standard of care as e(plained a"o e. 9ather than sa$ing that slight negligence is not a ground of criminal lia"ilit$, one should sa$ that where the harm could not ha e "een foreseen and pre ent, there is no negligence at all, for as we ha e seen, that the law re?uires the reasona"le care an no man is negligent merel$ "ecause he does not show more care. negligence either e(ists or it does not. if it e(ists, it is alwa$s punisha"le.

<.4.2Contributory Be#li#ence
'f the particular negligence imputed to the accused was not the efficient cause of the e ent, he cannot "e con icted. 't is howe er, no defense that the mischief was caused "$ the negligence of others, as well as that of the accused. 'f this was not so e er$ part$ including the accused would plea this defense and no negligent person take part in the e ent would "e accused. 2imilarl$, contri"utor$ negligence on the part of the ictim is not a ground of defense. Contri"utor$ negligence on the part of the ictim ma$, perhaps "e a ground for lightening the sentence and e idence which in a ci il case might "e gi en to pro e contri"utor$ negligence, might in a criminal case "e rele ant to show that the death of the deceased was not due to the culpa"le negligence of the accused. The a"o e seems to "e the #nglish doctrine. 'n Continental !urisprudence there is authorit$ fir sa$ing that if the negligence of the accused would not ha e "$ itself caused the in!ur$ without the contri"utor$ negligence of the ictim, the accused is not lia"le. This principle, howe er proceeds onl$ where the act or omission of the ictim was deli"erate and oluntar$, and not necessitated or pro oked "$ the original negligence of the defendant) or where it was the ictim himself who ga e the first cause to the in!ur$ suffered "$ him, "$ an unlawful conduct without which the in!ur$ to himself would not presuma"l$ ha e happened. VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV


General Principles of Criminal Law

C ,/emption orm Criminal Liability

/)ll the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to the single consideration of the want or defect of will8#5 ! "lackstone The first notion that one must learn when he D she are learning Criminal law is the "asic notion of Criminal responsi"ilit$. )ctus non facit reum nisi mens sit rea. This simpl$ means that for a person to "e criminall$ responsi"le for an$ criminal act or omission done "$ oneself %the ph$sical factor&, one must ha e a mind capa"le of forming an intention %will& and capa"le of understanding the nature of the action "eing done "$ him. i.e. he possesses "oth will and !udgment and is free to e(ercise "oth %the mental factor&. Thus it follows that an$ element present that ma$ interfere with the e(ercise of these two must "e taken into consideration since it can affect the e(istence or degree of criminal responsi"ilit$. The defences as accepted "$ our law can either e(empt wholl$ or in part from criminal responsi"ilit$ and are grouped as follows. /. :hen the agent has not the use or full use of his intellectual faculties) <. :hen the will or the understanding is not directed to the deed) ;. :hen the will is o er"orne "$ compulsions.

C.1 "hen the a#ent has not the use or ull use o his intellectual aculties

C.1.1Doun# a#e
*s Menn$ puts it. ) child knows right from wrong long before he knows how to make a prudent speculation of a wise will. This seems to contradict the main defence children less than /8 $ears of age ha e 0ischie ous discretion<8. 'n assessing responsi"ilit$, criminal law must take into account the fact that the ac?uisition of a full intellectual facult$ that ma$ ena"le a person to decide "etween right or wrong and the facult$ of reasoning rightl$ takes time, and thus a child <I must not "e treated as a sane adult that commits a criminal offence. *ccording to our criminal law there are different stages during childhood and adolescence until finall$ the child reaches the full re?uirements for a full criminal responsi"ilit$ or lia"ilit$ %/8 $ears of age&. Therefore criminal responsi"ilit$ must not "e the same throughout this period of time. 1ur law di ides children and adolescents into three %;& different age gaps and for each one there are different measures and presuppositions.

..0.0.0 :nder nine 4ears of age

2ection ;I %/& of the criminal code is er$ clear it sa$s. /'inors under nine years of age shall be exempt from criminal responsibility for any act or omission8. This can "e challenged under no circumstance. There is a conclusi e presumption that minors under the age of nine

will here denote "oth the facult$ of iolation and that of understanding. Hrom #nglish case law, "$ Amischie ous discretionB we understand that the minor knew not onl$ that the act was wrong, "ut possi"l$ seriousl$ wrong <I @ntil stated the word child refers to a normal child that does not ha e an$ impairments or difficulties apart from $oung age. @ntil stated these are to "e considered as minors as well i.e. under /7 $ears of age


General Principles of Criminal Law

are incapa"le of ha ing an$ criminal responsi"ilit$. Thus the$ are not lia"le to an$ punishment what so e er e en if an element of mischie ous discretion % HaBen& is found to "e present, for under the age of nine $ears, a child is deemed to "e incapa"le of ha ing an$ capacit$ of owing an$ discretion. The child is considered to "e doli incapax %not knowing that his action was seriousl$ wrong&. This howe er does not mean that nothing will "e done. 't still has the interest in the general pu"lic interest and in the interest of the child itself and so it makes sure the child shall "e checked and corrected in case he shows or repeats an$ e il tendencies. *lthough the law does not inflict an$ punishment to the child if the alleged fact to have been committed by the minor is proved and is contemplated by the law as an offence the court may bind over the parent or other person to watch over the conduct of the minor under penalty for non, compliance of a sum of not less than five and not exceeding one hundred liri78 +%ec 54+53. 'n sec ;I %I& parents are not held responsi"le for the act committed "$ he child "ut for not ha ing looked after the child. 2till this pro es that the child is not lia"le to an$ criminal offence) he is in no wa$ criminall$ responsi"le.

..0.0.2 'et7een nine and fourteen 4ears of age

The position of the law regarding this age gap is er$ similar to the pre ious. *lthough these are presumed to "e incapa"le of distinguishing "etween good and "ad, right or wrong and thus una"le to formulate a criminal intent and so are e(empt from criminal lia"ilit$, this presumption is not conclusi e. F it ma$ "e re"utted "$ e idence to the contrar$. *s it is stated in 2ec. ;I %<& children in this age gap are not criminall$ responsi"le unless there is the proof of mischie ous discretion. The mere commission of the act in these cases is not enough as in the case of an adult, to proof the guilt$ state of mind. The presumption of innocence is so strong, that it must "e shown that the minor was conscious of the wrongfulness and conse?uences of his act. 2uch consciousness can "e pro ed if the child has "een pre iousl$ con icted of some earlier crime. 2imilar fact cases can "e used as e idence to pro e. 2till for the minor to "e su"!ected to an$ punishment the court must "e satisfied with the proof "rought in front of it against the child. 'f mischie ous discretion is pro en, then malice makes up for the lack of age and the minor can "e held criminall$ lia"le 'alitia supplet )etatem. To proof this prosecution must "ring out that the child understood what he or she was doing and knew that it seriousl$ wrong apart from "eing also morall$ wrong. 'n this case it can adopt an$ of the disciplinar$ measures which are likewise applica"le to children under the age of nine $ears. /+53 (evertheless, in any of the cases referred to in sub,articles +23 and +#3, the court may, on the application of the .olice, re-uire the parent or other person charged with the upbringing of the minor to appear before it, and, if the fact alleged to have been committed by the minor is proved and is contemplated by the law as an offence, the court may bind over the parent or other person to watch over the conduct of the minor under penalty for non,compliance of a sum of not less than five and not exceeding one hundred liri, regard being had to the means of the person bound over and to the gravity of the fact +43 >or the purpose of the application of the provisions of the preceding sub,articles of this article, the parent or other person charged with the upbringing of the minor as aforesaid, shall be re-uired to appear, by summons, in accordance with the provisions contained in "ook %econd of this Code.#D


*rticle ;I %;&, %I& of the Criminal Code


General Principles of Criminal Law

This has noting to do with icarious lia"ilit$) the parents do not take the responsi"ilit$ on "ehalf of the minor "ut are responsi"le for ha ing failed to look after him or her. The child that has "een found guilt$ recei es a mitigated punishment of a fine %ammenda& of not more than Lm <I or a reprimand. -owe er these can "e locked up in an 'nstitution as said in the Children and $oung persons %Care orders& *ct of /57I. This mitigation is consented "$ law "ecause the mind of the child ma$"e ine(perienced, and could easil$ "e lead "$ passion and temptation, e en though it is recognising the mischie ous discretion of the child.

..0.0.# 'et7een fourteen and eig/teen 4ears of age

The law is er$ clear a"out this age gap and in *rticle ;6 of the Criminal Code the following laid down. /If the offender has attained the age of fourteen but is under the age of eighteen years, the punishment applicable to the offence shall be diminished by one or two degrees.8 *lthough at this age the$ are not adults according to law these can distinguish "etween good and wrong %doli capax& and are perfectl$ responsi"le for criminal offence *ge<6 is rele ant in cases of coercion %*rticle ;;%"&& and in the cases of mistake of fact. The Children and $oung persons %Care 1rder& *ct %Chapter <7I& is rele ant when it comes to the punishment and to what will happen of the child after the sentence. *rticle ;%/& sa$s. +23 *here any child or young person is found guilty of an offence by or before any court of criminal jurisdiction, and in the opinion of the said court, +a3 none of the other methods in which the case may be dealt with according to law is suitable0 and +b3 the child or young person is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him, That court may, in lieu of sentencing him to imprisonment or dealing with him in any other manner available according to law, make an order committing him to the care of the 'inister for a period of not less than one year and not more than five years; .rovided that an order made under this subsection shall, unless it has ceased to have effect earlier, cease to have effect on the date on which the child or young person in respect of whom the order is made attains the age of eighteen years. 'n ,0 %a minor& s. 9uneckens, the court esta"lished that it is not necessar$ to pro e that the child knew that the act was morall$ wrong) he must know that it is seriousl$ wrong in the sense that it is not merel$ naught$ "ut mischie ous. 'n 0c C s. 9uneckles a girl of thirteen was con icted "ecause she knew what she was doing perfectl$ and the e idence of e ents were sufficient to re"ut the presumption of doli incapa(. 0oreo er one can also argue that a child from a good home is pro"a"l$ more likel$ to distinguish right from wrong than one from a "ad home, so he is more likel$ to "e con icted. This is what happened in B s. 9 %/5I7& Criminal *ppeal 9oom / where a wellF"eha ed child of good parents "roke into a house while performing a scout acti it$. -e was found

B$ age we also mean old age


General Principles of Criminal Law

guilt$ "ecause his good character re"utted the presumption that he did not know that he was acting in a seriousl$ wrongful wa$. 'n m$ opinion one must er$ cautious when making use of these t$pes of arguments, since it is er$ argua"le where and how is one to decide which is the good and "ad famil$.

C.1.2Old A#e
Hor the purpose of Criminal lia"ilit$ old age, has not "$ itself an$ rele ance. 'n modern progressi e s$stems account ma$ "e taken as regards the punishment, so as to "e chosen an appropriate one for him. 1n the other hand Carrara o"ser es one must e(pect that "$ reason of his e(perience and of cooling down of passion, old man should show greater respect for the law. his wrongdoing is more harmful to the communit$ from the point of iew of "ad e(ample that the wrongdoing of a $outhful offender. Ket old age is more likel$ to "ring a"out deterioration of the mental faculties %senile dementia&. 'n an$ such case it must "e taken account as such and used as a defence as a reason of mental infirmit$ and not "$ reason of age.

C.1.&Dea mutes
39. +23 9eaf,mutes, who at the time of the offence have not attained the age of fourteen years, shall be exempted from any punishment established by law; .rovided that the provisions contained in article 54+53, +?3 and +43 may be applied to such persons. +#3 9eaf,mutes, who at the time of the offence have attained the age of fourteen years and who have acted without a mischievous discretion, shall likewise be exempted from punishment; .rovided that the provisions contained in article 54+53, +?3 and +43 may be applied to such persons. 40. The following rules shall be observed in the case of deaf,mutes who have acted with a mischievous discretion; %a3 if at the time of the offence they have attained the age of fourteen but not the age of eighteen years, the provisions contained in articles 5D and 5F shall apply0 %b3 If at the time of the offence they have attained the age of eighteen years , +i3 In the case of a crime liable to the punishment of imprisonment for life, they shall be liable to imprisonment for a term not exceeding twenty years0 +ii3 In the case of any other crime, they shall be liable to the punishment established by law diminished by one,third0 +iii3 In the case of contraventions, they shall be liable to the punishments established for contraventions.

/ aw is not concerned with the brain but with the mind, in the sense that the @mindA is ordinarily used, the mental functions of reason, memory and understanding.#:8


20'T-, ,.C. 3 -1G*4, B, Criminal aw %London Buttersworths /567& p. />8


General Principles of Criminal Law

'nsanit$ is a disease of the mind, nothing more nothing less. * person is considered to "e insane if he does not ha e la facolta di conoscere e di volere#< at the time of the commission of the act of omission of the offence. 0amo, in his notes refers to two t$pes of this decease. insanit$ and frenL$ %which is a temporar$ state of insanit$& which toda$ are considered to "e as one. 0oreo er 'n our present code we donBt ha e a definition of insanit$. #nglish law distinguishes "etween two t$pes of insane persons. i& Those who are completel$ unaware of their criminal conduct) ii& Those who know that what the$ are doing is criminall$ wrong and the$ would not ha e $ielded to their criminal insanit$ if a policeman was at their el"ow. -owe er in this distinction there is a great difficult$ to draw the line of the demarcation "etween the two forms of insanit$.

..0.6.0 9/e Mc <aug/ton Rules

2o now a more rational rule will "e mentioned. This is accepted to test upon the presence or a"sence of the capacit$ to distinguish right from wrong in the acts or omissions. These are the 0c 4aughton 9ules which "reak down the intendere part "ut sa$ nothing of the volere part. These rules are. /. # er$man is presumed to "e sane, and to possess a sufficient degree of reason to "e responsi"le for his crime until contrar$ "e pro ed to the satisfaction of the !ur$) <. The esta"lish a defence on the ground of insanit$, it must "e Aclearl$B shown that, at the time of the committing the act, the part$ accused was la"ouring under such a defect or reason, from disease of the mind, as not to know the nature and ?ualit$ of the act he was doing, or %if he did know his& not to know that what he was doing was wrong morall$) ;. *s to his knowledge of the wrongfulness of the act, the !udges sa$ if the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrar$ to the law, he is punisha"le. Thus the test is the power of distinguishing "etween right and wrong not, as was once supposed, in the a"stract, "ut in regard to the particular act committed) 8. :here a criminal act is committed "$ a man under some insane delusion as to the surrounding facts, which conceal from him the true nature of the act he is doing, he will "e under the same degree of responsi"ilit$ if the acts ha e "een as he imagined them to "e. -e ma$, for instance, kill under the imagination either that he is the e(ecutioner lawfull$ carr$ing out a !uridical sentence, or, on he other hand, merel$ that the person killed had once cheated him at cards. 2ir ,ames 2tephen commented on these rules and considered them er$ a"stract and the$ merel$ consider the effects of insanit$ upon the emotions and upon the will of the person. 'nsanit$ not onl$ effects manBs "eliefs, "ut also their emotions and their will. These rules seem to "e "ased upon the effect of insanit$ o er the "elief of the accused) the "elief of right and wrong.

The necessar$ for the recognition of Criminal responsi"ilit$


General Principles of Criminal Law

..0.6.2 9/e *rresisti&le *mpulse test

'n addition to the 9ight -on 2ir - de Celliers, C. ,. stated in a !udgment that) /. where defence of insanit$ is interposed in a criminal trial, the capacit$ to distinguish "etween right and wrong is not the sole of responsi"ilit$ in all cases) <. 'n the a"sence of legislation to the contrar$, the courts of law are "ound to recognise the e(istence of a form of mental disease which pre ents the sufferer from controlling his conduct and choosing "etween right and wrong, though he ma$ ha e the mental capacit$ to distinguish "etween right and wrong) ;. The defence of insanit$ is esta"lished if it is pro ed that the accused had, "$ reason of such mental disease, lost power of will to control his conduct in reference to the particular act charged as an offence) 8. The capacit$ of the accused to control his own conduct must "e presumed till the contrar$ is pro ed. The 0B 4aughton rules must "e supplemented "$ the 'rresisti"le 'mpulse test. This implies that a person who knew he was committing and act which was morall$ wrong and D or prohi"ited "$ law ma$ ne ertheless "e e(cused from responsi"ilit$ if, "$ reason of his mental disease he lacked the power of conscious olition ;= and inhi"ition to resist the impulse to commit the act. The power of olition and inhi"ition or AconationB is necessar$ for the mental soundness as well as the reasoning capacit$ or AcognitionB. The modern tendenc$ holds that the disorders of the olitional powers, resulting in irresisti"le impulsions to commit certain antiFsocial acts constitute a defence to a criminal charge in the same manner as disorders of the intellectual powers resulting to the ina"ilit$ to understand the wrongfulness of such acts.

..0.6.# Our Criminal Code

'nsanit$ is dealt with in section ;; %a& of our criminal code which la$s down that)

/Ivery person is exempt from criminal responsibility if at the time of the act or omission complained of, such person ! +a3 was in a state of insanity0852 1ur law has refrained from an$ attempt to define the conditions under which someone can plead mental unsoundness as an e(cuse for the wrongFdoing, wisel$ lea ing each case to "e decided in the light of its particular circumstances) 1ur law e(empts a person from criminal responsi"ilit$ if his acts under insane delusions caused " disease of the mind or if a person acts under automatism due to failure of the mind. 2o for insanit$ to constitute a defence, the accused must ha e committed an offence under default of mind and will) 1ur law does not prescri"e an$ tests. To decide whether the defendant had a mental disease, our courts seek to find, if so, whether it was of such a character and degree, as to take awa$ the capacit$ to know the nature of his

;= ;/

Coluntar$ e(ercise of the oneBs own will Pro ision %"& of the same article is nor rele ant to insanit$


General Principles of Criminal Law

act and to help doing it so our law considers two elements of legal responsi"ilit$ in the commission of e er$ crime. /& capacit$ of intellectual discrimination) and <& freedom of will. 0adsle$ writes. The nature of a crime involves two elements; first the knowledge of it being an act contrary to law, and, secondly, the will to do or to forbear doing it. There are insane persons who having the former are deprived by the disease of the latter; who may know an act is unlawful but maybe impelled to do it by a conviction or an impulse which they have no the will or the power to resist. Therefore, our law recognises insanit$ as an e(cuse not onl$ when it depri es the offender of his powers of distinguishing the ph$sical and moral natural and ?ualit$ of the act charged as an offence, "ut also when it depri es him of his facult$ of choice so as to e(clude a free determination of his will in relation to that act. 'nsanit$ thus em"races all forms of disease of the mind, the word mind "eing used as a general name for the com"ined operations of intellect and olition. Toda$ the notion of furore is not an$more applica"le to our law ;<. * sane person can use as his defence, temporal insanit$ not "$ disease "$ anger, !ealous$ or other passion %furie di sangue&. Like #nglish courts, 0altese courts presume that a person is insane under the contrar$ is e idenced and accepted "$ the same courts. 1ne must also mention that moral insanit$ is not an e(cuse. Check whether Apartial insanit$B is accepta"le. :hen the issue of insanit$ is decided in the affirmati e, the accused is e(empted from criminal lia"ilit$, "ut ne ertheless the defendant is not AdischargedB. To set him free might constitute danger to himself and to others. 2o in all cases he it is ordered that he is to "e detained in strict custod$ in the hospital for mental diseases. D#E. +23 )ny allegation of insanity, or of any point of fact, by reason of which, if true, the person accused would not, at the time or at any future time, be called upon to plead to the indictment, or be put on trial, or made to undergo punishment, shall first be determined by a jury. +#3 *here any person after having obtained a conditional commutation of his sentence is, by the Ixecutive .olice, on account of the violation of the condition for the commutation of such sentence, again taken to prison or placed in the same state in which he was prior to such commutation, in order to undergo or continue to undergo his sentence, any allegation of fact made by such person by reason of which, if true, the said condition as literally expressed in the act of pardon would not be deemed to be broken, shall also be determined by a jury. +53 )ny allegation referred to in this article shall be brought before the Criminal Court by an application. +?3 1n any such application, the court shall make an order, appointing a day for hearing the applicant and the )ttorney $eneral, causing them to be served with a copy of such order.

D#2. *here the )ttorney $eneral intends to contest any allegation made under the last preceding article, he shall do so in writing.

# en though the 0amo notes contemplate this idea


General Principles of Criminal Law

D##. The court may refer the determination of any such allegation to the jury already impanelled for the trial of the offence. D#4. *here the )ttorney $eneral does not contest any allegation under this Title, the court shall proceed as if the truth of the allegation had been proved. D#D. In all cases where, upon any allegation under this Title being proved, the trial cannot take place or is interrupted or the execution of the sentence is stayed, the trial shall be resumed or the sentence carried into effect, as soon as the impediment shall cease. D#F. In all cases where it shall be necessary to impanel a new jury for the determination of any allegation referred to in the preceding articles of this Title, such jury shall be impanelled and shall proceed according to the rules established in this Code relating to juries. D#:. In all cases referred to in the preceding articles of this Title, any allegation shall be determined by the jury by a majority.

'n our law there is no such thing as semi responsi"ilit$ still the idea is taken care of in other *rticles such as deaf mutes and pro ocation. *ccording to our law howe er $ou are either responsi"le or $ou are not. 4onetheless an offence could "e #(cusa"le or ,ustifia"le. #(cusa"le is when a person is deemed to "e e(cused "ecause of a Acertain circumstanceB and the punishment is mitigated although the person is still found guilt$ or that offence. :e also ha e e(cusa"le homicide where law hold out of mitigation of punishment as well. 1n the other hand, ,ustifia"le offence as in the case of selfF defence and lawful homicide, the person is not held to "e criminall$ responsi"le and thus not e(posed to an$ punishment. 2ometimes what could "e a !ustifia"le offence "ecomes an e(cusa"le offence "ecause some ingredients contemplated "$ law regarding selfFdefence are missing. 2till, there is not such thing as semiF responsi"ilit$ or diminished responsi"ilit$. The onl$ thing is that there is a mitigation of power in the first with full responsi"ilit$ while no punishment since there is no guilt in the second. ;;

34 +23 %ave as provided in this article, intoxication shall not constitute a defence to any criminal charge. +#3 Intoxication shall be a defence to any criminal charge if ! +a3 by reason thereof the person charged at the time of the act or omission complained of was incapable of understanding or volition and the state of intoxication was caused without his consent by the malicious or negligent act of another person0 or %b3 the person charged was by reason of the intoxication insane, temporarily or otherwise, at the time of such act or omission. +53 *here the defence under sub,article +#3 is established, then, in a case falling under paragraph %a3 thereof, the person charged shall be discharged, and, in a case falling under paragraph %b3, the provisions of articles D#E to D#5 and D#4 to D#: shall apply.


9efer to 2u"Ftitle ''' C of Title C''' 1f Crimes against the person


General Principles of Criminal Law

+?3 Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be guilty of the offence. +43 >or the purposes of this article 6intoxication6 shall be deemed to include a state produced by narcotics or drugs.5? 't is clear that getting drunk or into(icate one self with narcotics to ac?uire courage) the soF called %+utch Courage& in order to commit an offence is a"solutel$ not permissi"le "$ law. The onl$ instances where 'nto(ication ma$ "e used as a defence is 2u"Farticles %<& and %8& of *rticle ;8 'n 2u"Farticle <%a& the law e(cludes criminal responsi"ilit$ in those cases where into(ication was induced "$ third persons maliciousl$ or negligentl$ and without the consent of the person into(icated, this must "e done either without his knowledge or against his will. 'n this regard a ?uestion ma$ arise in the case of a prescription of a medicinal "$ a doctor which causes into(ication. 'n the first place in such a case it seems that neither the doctor not the patient was aware of the effects of this medicinal. But the position is not that simple "ecause in such a case one might well find that there was no negligence on the part of the doctor, howe er it must "e admitted that the into(ication was "rought on the accused against his will. 'n such a situation one must therefore take into(ication into consideration in the terms of ;8%8& in order to esta"lish whether it was such so as to impair his mental capa"ilities to the e(tent that he could not form the specific or other intent re?uired for that specific crime. The reason is "ecause if after realising his state of into(ication he willingl$ decided to commit that crime and knew perfectl$ well what he was doing then he will "e answera"le. -e will not "e criminall$ lia"le howe er, if he was incapa"le of understanding or olition. Two conditions are thus re?uired to "e satisfied in order to e(clude responsi"ilit$, that is to sa$, the into(ication must "e AaccidentalB in the sense aforeFsaid, and AcompleteB, that is rendering the person for the time unconscious of his acts or incapa"le of understanding and olition. Contrar$ to su"Farticle <%a&, su"Farticle <%"& accepts into(ication %e en selfF into(ication& that ma$ "ring a"out a state of insanit$, either temporaril$ or otherwise at the time of such act of omission. *ccording to our law, this implies the lack of the powers of understanding and olition in a person and therefore his ina"ilit$ to form a proper mens rea. 'n this state of affairs, the person is not criminall$ responsi"le $et after "eing declared insane, he is sent to a mental institution where he will sta$ at the pleasure of the President of the 9epu"lic. * pro"lem ma$ arise if a person is into(icated in the wa$ mentioned in 2u"Farticle <%a& and %"& "ut he still knows what he is doing and has la capacita di intendere e di volere. 1r ice ersa he does not ha e la capacita di intendere e di volere "ut this was not as specified in <%a&. 2hould we interpret these su"Farticles separatel$ or con!ointl$O 'n m$ opinion su"Farticle 8 should appl$ onl$ if into(ication occurred as descri"ed in su"F article < %a& and %"&. :hen referring to su"Farticle < it is o" ious that the law wanted that the onl$ instances when into(ication could "e used as a defence are two :hen a person is induced with su"stances against his own will or without he "eing conscious of it, and in the case when into(ication would result in insanit$ either temporar$ or otherwise. 'n "oth cases he was una"le of forming a mens rea therefore no criminal responsi"ilit$. But in su"Farticle 8 it is said that if the person accused of an offence had formed an$ intent he would "e criminall$ lia"le, since it is onl$ in the case that he did not form intent, that he would not "e guilt$ of the offence. 'f this article was to "e used separatel$ from su"Farticle <

*rticle ;8 of the Criminal Code of the Laws of 0alta


General Principles of Criminal Law

then we would ha e a loophole in article ;8. Because, if %/& he drank andDor took so man$ drugs to the e(tent that he into(icated himself and conse?uentl$ %<& he acted without ha ing the understanding and the olition of doing such illegal act, then, according to this act, he would "e free from an$ criminal lia"ilit$. This contrar$ to su"Farticle < which restricts the cases onl$ to the two mentioned in the same article 1ne must also notice that the same conclusion is reached in these su"Farticles. That is, in all these circumstances mentioned, the person is not criminall$ lia"le since he is una"le of forming a mens rea. The curious thing is that the words referring to mens rea in the two articles are different "ut mean the same. :hile in su"Farticle 8 the word used is intent, that is when the person concerned had formed an idea of doing something, thus "$ not forming an$ intent he did not ha e the understanding and also the will of doing an$ illegal action, in su"Farticle < %a& the phrase used is Aincapa"le of understanding or olitionB. Thus "oth su"Farticles are referring to the incapacit$ of forming a mens rea. Ket su"Farticle <%a& and su"Farticle 8 are contrasting each other for the reason mentioned pre iousl$. 't seems that although these articles are tr$ing to reach the same conclusion one ma$ seem as if disregarding the other. The first su"Farticle states that the onl$ case when into(ication should "e used as a defence is when the person charged at the time of the act or omission complained of was incapable of understanding or volition and the state of intoxication was caused without his consent by the malicious or negligent act of another person. 1n the other hand according to su"Farticle 8, into(ication could "e used as a defence whene er the person was not a"le of forming an$ intent "ecause of drunkenness or into(ication "$ means drugs.
Thus ' think that to a oid an$ unnecessar$ loopholes one must interpret su"Farticle 8 onl$ to strengthen su"F article <. These article should "e interpreted con!ointl$ using Logical interpretation, so that article ;8 would a oid that a person uses alcohol or drugs "efore committing an offence so to increase his courage, the soFcalled +utch Courage, and also to use it as a defence in his fa our if e er he is tried. ' "elief that the intention of the legislature is to pre ent the a"o e from happening. Thus this would also mean that when someone is gi en su"stances against his will or without he "eing conscience of, "ut still he was a"le of forming an$ intent or else capa"le of understanding or olition, then he would "e lia"le to criminal responsi"ilit$ for an$ criminal act committed in this state. This is strengthened "oth "$ su"Farticle <%a& and also "$ su"Farticle 8.

This pro"lem has "een e(tensi el$ dealt with "$ our courts in man$ cases and the position has "een summarised "$ the Court of Criminal *ppeal in its ,udgement of /6D>D7> in re P. s. Bassler Beat ,org.

C.1.<.omnambulism and -ypnotism

The acts committed in sleep "$ persons who suffer from somnam"ulism ma$ seem as deli"erate acts) $et the$ are merel$ mechanical, automatic acts undirected "$ olition and unaccompanied "$ consciousness. The old notions that such acts are "ut reactions to and the refle( of the manBs thoughts and intentions when awake, find no support in modern science) and, in an$ case, criminal law is not concerned with mere thoughts and intentions especiall$ when the act is not accompanied "$ will and understanding. # en if the somnam"ulist is aware of his pro"lem and he knows that he ma$ perform offences while he is asleep and thus should take precautions, an$ punishment which the law could inflict, would not "e for the act done in sleep, "ut for the lack of precautions taken during the time his is awake.


General Principles of Criminal Law

-$pnotism is difficult to define. 't ma$ "e said to "e a sleepFlike condition, the condition "eing "ased upon ph$siological states of the "rain and the ner ous s$stem. +uring these states the su"!ect is under the influence of the suggestions of the operator. 'n the present state of knowledge, howe er, it is still an open ?uestion whether criminal suggestions ma$ "e con e$ed to h$pnotised persons. 'n fact it is held "$ some, that the e(ecution of improper deeds or crimes cannot "e suggested to persons of rectitude or lawFa"iding persons in the h$pnotic state, who are protected from so acting "$ their moral consciousness. 'n this state a person would "e a mere instrument in the hand of the operator, who would "e the real and sole offender.

C.2 "here the will o the understandin# are not directed to the deed
'n this section we will speak a"out *ccident and also a"out two t$pes of mistake. of law and of fact.

0istake has "een er$ well descri"ed "$ a !urist as the ignorance of that which is and the knowledge of what is not. 'n criminal law there is no difference "etween ignorance of law and mistake of law, the difference is "etween mistake of law and mistake of fact.

..2.0.0 MistaDe of >a7

0istake of law is like is the same as ignorance of law. Blackstone puts forward wh$ Ignorantia juris neminem excusat. /& -e sa$s that e er$"od$ should know that part of the law which concerns him) <& Law, "eing in harmon$ with the rules of natural !ustice finds a secure "asis in the consciousness of man) ;& *ccepting as a defence would render administration of !ustice ne(t to the impossi"le. 1n the other hand 2almond criticises BlackstoneB ideas "$ sa$ing that. /& 't is a far fetched ideal to assume that e er$one knows the law) <& 'n such a comple( societ$ man would need something more than conscience to guide him) ;& 't is impossi"le to distinguish "etween in inci"le and negligent ignorance of the law. 0oreo er it seems that this rule does not, in its full e(tent and uncompromising rigidit$, admit of sufficient !ustification. 'n other codes like those of 'tal$ and the British, this rule is er$ much emphasised. Hor e(ample in the 'talian Criminal Code of /775 it was stated that (essuno puo invocare a propia scusa lAignoranBa della legge penale. 'n place like Britain this rule applies with rigour. Hor instance, a sailor was con icted of an offence which had "een enacted during the time he was awa$ and therefore it was not possi"le for him to know a"out this prohi"ition. This is perhaps a too rigid application of the rule, for as 0anLini points out, the dut$ of knowing the law onl$ e(ists in so far as it is possi"le to discharge it. therefore it is manifest that ignorance of the law should "e a aila"le as an e(cuse, when it is a"solutel$ ph$sicall$ impossi"le to know such law, as for instance, when it is pu"lished after the date appointed for the commencement of its operation 2ome ,urists sa$ the rule must not appl$ so rigidl$ for foreigners that ha e "een in the place onl$ for a few time especiall$ when it comes to police contra entions, contemplated "$ the laws of their own countr$.

General Principles of Criminal Law

This rule does not onl$ appl$ to knowledge of the penal law "ut also as regards the interpretation of it. 1therwise it would "e er$ eas$ to e ade the o"ser ance of law on the prete(t of misinterpretation. 0anLini states that although a mistake of law lea es the offender lia"le it ma$ ne ertheless afford a good ground for mitigation of punishment.

..2.0.2 MistaDe of fact

Contrar$ to mistake of law, mistake of fact ma$ result to "e a good defence if the following < criteria are fulfilled. /& The mistake must merel$ accidental. 't must "e of such nature that if the mistake did not take place and the accused would not "e guilt$ or lia"le to an$ criminal responsi"ilit$. *n e.g. of this is when a man takes something he thinks is his own "ut in fact he is mistaken. 'n this case the person is not guilt$ of theft. 1n the other hand if the man steel a thing instead of another it does not make an$ difference which think he wanted to steel. The fact is that he still wanted to steel, "ut he made a mistake taking one thing instead of another. 2imilarl$, if a person intended to kill B "ut he kills * "$ mistake, he will "e lia"le for wilful homicide. 2uch mistake ma$ at "est affect the degree of lia"ilit$ as laid down in *rticle <;8 of the criminal code. Ket if a person instead of killing the "urglar, who "roke into his house, kills someone else then the person is not guilt$ "ecause his intended action is !ustifia"le homicide and can plea mistake of fact as a defence.

The mistake must also "e ine ita"le, in a wa$ that it could not "e a oided "$ the e(ercise of reasona"le care. *n e(ample gi en "$ Menn$ is the following. * gentleman, who fires off his gun, lea es it empt$ "efore going to church. 'n the meantime someone else uses it lea ing it loaded. 1n his return, whilst handling his gun, whilst his wife is in the same room, he touches the trigger and fires a "ullet in his wifeBs direction, killing her. 'n this case there is no wa$ that the man would ha e "elie ed it to "e loaded and ma$ plea as a defence Amistake of factB.

* mistake which is "oth essential or accidental and ine ita"le e(cuses from all criminal lia"ilit$. 1n the other hand, a mistake which is essential "ut culpa"le, though it ma$ e(empt from lia"ilit$ in respect of wilful wrongFdoing %dolus&, ma$ lea e unimpaired he lia"ilit$ of negligence %culpa&.

..2.0.# Accident
-arr$ sa$s that the term accident is used in the following senses. %/& * conse?uence due to some e(ternal agenc$ o er which the accused had no control e.g. where a person is killed in the street "$ a horse "olting against the will of the rider. The person is not guilt$ since there is no act or omission on his part. %<& *n unintended conse?uence of a oluntar$ act e.g. where a man is working with a hatchet and the head "$ accident flies off and kills a person standing "$.

C.& "here the will is o!erborne by compulsion

/)s punishments are only inflicted for the abuse of that free will which $od had given to man, it is highly just and e-uitable that a man should be excused for those acts which are done through unavoidable force and compulsion8 "lackstone


General Principles of Criminal Law

/Ivery person is exempt from criminal responsibility if at the time of the act or omission complained of, such person 7 +b3 was constrained thereto by an external force which he could not resist.854 *n *ct done under ph$sicall$ coercion cannot "e a criminal offence. 'f, for e(ample, * seiLes the hand of B and compels him "$ ph$sical force to sta" C, it is clear that B commits no criminal offence "ecause the act is not his. -e is "ut an instrument in the hands of *. he does not act "ut is acted upon. Anon agit sed agiturB. 0oral coercion operates as a ground for e(emption from criminal responsi"ilit$ when it completel$ suppresses the possi"ilit$ of a normal determination on the part of the person doing of omitting the fact. Ket if the commissioner or the emitter has had the time to think and decide upon his act, the offence is imputa"le "ut still the court ma$ mitigate the punishment ha ing regard to the circumstances. Hor total e(emption from punishment, the e(ternal force must "e trul$ Airresisti"leB and not merel$ AunresistedB %could "e resisted "ut did not&. This is wh$ most writers limit the notion of moral coercion to threats of death or serious personal in!ur$. for it is onl$ such threats that ma$ depri e the ictim of his freedom o choice and compel him to commit the offence. 1n the other hand threats of in!ur$ to propert$ are not sufficient "ecause as Cheu eau et -elie wrote. It is certain that the fear of a mere pecuniary loss cannot be considered as a force which the actor could not resist; there is nothing but the fear of death, or of grievous bodily harm which may suppress the will and compel the determination. If on the other hand, the law cannot expect from the accused a heroic firmness of character, it cannot either pardon the blameable weakness.8 1ne must also make a difference "etween fear and force. 'f a person goes through a marriage contract with fear onl$ %he could resist "ut he still went through& then the marriage would still "e alid since he still had some freedom of choice. But if fear could not "e resisted for he had no freedom of choice, his free will was annihilated totall$ due to this threat, and then there was no contractual o"ligation in marriage. :hen we sa$ that he could not resist, it means that he had no freedom of choice. This depends on who is making the threat and who is "eing threatened. This force must "e such that it could not "e resisted and not merel$ Awas not resistedB. Pessina lists three elements which would e(clude criminal responsi"ilit$. /& 'mminent danger, <& of a harm which the ictim of the threat apprehends as more grie ous that the harm caused "$ the offence and c& which he could not a ert e(cept "$ committing the act contrar$ to law.

C.&.2=us Becessitatis
4ecessit$ and coercion are er$ similar. The origin and source of the threat in coercion comes from another person) in necessit$ it usuall$ comes from a serious of e ents or circumstance which ha e not "een put into effect "$ an$one. 1ur law does not recognise a defence of necessit$ where in order to sa e m$self ' ha e to commit an offence. 1ne ma$ find oneself in a position where there is no ph$sical coercion "ut he is in a situation where one either commits a criminal offence or else something er$ serious will happen to him. The pro"lem to "e discussed is the more difficult one that arises where a person is a"le to choose "etween two courses, one of which in ol es the "reaking of criminal law and the other

*rticle ;; %"& of the Criminal Code of 0alta also applies to ,us 4ecessitatis


General Principles of Criminal Law

some e il to himself or other of such magnitude that it ma$ "e thought to !ustif$ the infraction of the criminal law. 'n an *merican case the master of a ship was held not guilt$ for iolating an em"argo act "$ illegal entr$ into a port when, as the result of a storm the course was Anecessar$B for the preser ation of the essel and the cargo and li es of those on "oard. The leading case of necessit$ in #nglish Law is 9e( s. +udle$ and 2tephens %/778&. These men were accused of the killing of child. These were lost in open sea without food or drinks and were reduced to drink their urine. Hinall$ the$ killed the ca"in "o$ and ate him for he pro"a"l$ would not ha e sur i ed. 'n re!ecting the defence of necessit$ in this case, Lord Colleridge constantl$ switched from the notion of ,ustification to the notion of e(cuse. There was no necessit$ wh$ the "o$ had "een killed and not the others. 't was held that the mere necessit$ for selfFpreser ation was not a defence for their action and thus the$ were guilt$ of murder. *nother case is the case of :iller of /57> $et the situation is not as e(treme as the pre ious one. :iller was accused that he dro e his car on pa ement into shopping precinct and out to escape from someone who was attacking him. -e was tried for reckless dri ing and the !udge refused to accept the defence of necessit$. 4one what so e er, #nglish writers ha e "een willing to accept this ground of defence. 2ir ,ames 2tephen wrote. 't is !ust possi"le to imagine cases in which the e(pedienc$ of "reaking the law is so o erwhelmingl$ great that people ma$ "e !ustified in "reaking it. "ut these cases cannot "e defined "eforehand. Hor our law it is essential in order that there ma$ "e e(emption from punishment, that the agent should ha e "een constrained to the deed "$ an e(ternal force which he could not resist. 1ther impulsions ma$ ser e onl$ to mitigate the punishment "ut not to e(clude it altogether.

C.&.&Le#itimate .el EDe ence

1ne must start off "$ sa$ing that a defence must "e legitimate and not onl$ self defence. The state of necessit$ which we ha e !ust considered arises, as we ha e said, where, owing to an accident or force, a man finds himself in the necessit$, in order to preser e himself, or in!uring another person who is not guilt$ or an$ wrongful act towards himself. The !ustification of legitimate defence, on the other hand arises where a man repels "$ force the iolence or aggression of another man against whom precisel$ the act of the agent is directed. 1ur code mentions this !ustification in connection of homicide and "odil$ harm. (o offence is committed when a homicide or a bodily harm is ordered or permitted by law or by a lawful authority, or is imposed by actual necessity either in lawful self,defence or in the lawful defence of another person. Cases of actual necessity of lawful defence shall include the following; +a3 where the homicide or bodily harm is committed in the act of repelling, during the night,time, the scaling or breaking of enclosures, walls, or the entrance doors of any house or inhabited apartment, or of the appurtenances thereof having a direct or an indirect communication with such house or apartment0 +b3 where the homicide or bodily harm is committed in the act of defence against any person committing theft or plunder, with violence, or attempting to commit such theft or plunder0


General Principles of Criminal Law

+c3 *here the homicide or bodily harm is imposed by the actual necessity of the defence of oneAs own chastity or of the chastity of another person.5D 41T#. 'H T-# T-9#*T '2 41T +'9#CT#+ T1 K1@ %K1@9 B1+K& B@T '2 +'9#CT#+ T1 T-# P91P#9TK K1@ :'LL 4#C#9 B# ,@2T'H'#+ H19 -10'C'+# 19 B1+'LK -*90. <ote see Police vs -alvu Psaila E Cudge Billiam Farding # er$ person has a natural inherent right of personal securit$, consisting in the en!o$ment of his life, his "od$ and his lim"s. :here the hand of the 2tate on account at the time or place in which the aggression takes place cannot inter ene to protect him, e er$ person is entitled to resist "$ force an$ wanton %unrestrained& aggression. The repelling of aggression "$ force is an instinct. Legitimate defence ma$ not onl$ !ustif$ personal in!uries, "ut also other acts o"!ecti el$ in!urious to the rights of others. as for instance, when a man apprehends, detains and confines his aggressor. 0oreo er the plea of legitimate defence can "e set up in !ustification of an in!ur$ causes to an innocent third part$, as, when a man, hotl$ pursued "$ an aggressor, "reaks into the house of another person. # en our codes onl$ speak a"out homicide and "odil$ harm, $et the courts had to e(tend the effects of the same !ustification to other offences also. But the law rightl$ imposes certain conditions in the a"sence of which a plea of legitimate defence cannot "e successful. The e il threatened must "e. /& @n!ust <& Gra e ;& 'ne ita"le

:nCust The threat must "e unlawful. Thus this re?uirement fails when the e il threatened
is lawful, that is, commanded or permitted "$ law) as for e(ample, in the case of a man sentenced to death who, to sa e himself, kills the e(ecutioner, or in the case of a man who resists the police who, in the e(ecution of their duties, proceed to his arrest.

Grave The act of defence must ha e "een done onl$ in order to a oid conse?uences
which, if the$ had followed, would ha e inflicted upon the person Airrepara"leB e il) and the law considered as Airrepara"leB and conse?uentl$ gra e, that e il which threatens the life, the lim"s, the "od$, or the chastit$ of an indi idual. 0ere interference of propert$ will not usuall$ !ustif$ the homicide or a "odil$ harm. such a !ustification will not arise unless the interference amounts to a crime which is iolent, such as theft with iolence or plunder, or which takes place under such circumstances as to raise a reasona"le apprehension of danger to life or personal safet$) as where the homicide or "odil$ harm is committed in the act of resisting, at night, the "reaking into oneBs residence. But of course, the gra it$ of the aggression must " understood in relation to the defensi e reaction and to the means at the disposal of the agent.

*nevita&le# The accused must pro e that the act was done "$ him to a oid an e il which
could not otherwise "e a oided. 'n other words the danger must "e sudden, actual and a"solute. 2udden F Hor if the danger was anticipated with certaint$, a man will not "e !ustified who had rashl$ "ra ed such danger and places himself in the necessit$ of ha ing to suffer death or
;> ;6

*rticle <<; and <<8 of the Criminal Code of 0alta Carrara


General Principles of Criminal Law

grie ous in!ur$ or to inflict it. 2o $ou must "e in a position were $ou did not ha e enough time to asses the threat. *ctual 'f it had alread$ passed, it ma$, at "est amount to pro ocation or, at worst, to coldF "looded re enge, and not to legitimate defence. if it was merel$ apprehended then other steps might ha e "een taken to a oid it. 2o it must "e at that time not after, inkella !igi re enge *"solute :hether at the moment, it could not "e a erted "$ other means. 't is disputed whether the person is "ound to retreat, if possi"le, "efore killing or inflicting "odil$ harm. 'n #nglish law seems to "e in fa our of retreat while *merican law is in fa our of selfFdefence. 'n 0alta it is not $et clear, "ut still selfFdefence is ?uite accepted. The principle of comodus di(essus. 0eaning that in 0alta if $ou ha e a chance to flee $ou are "ound "$ law to tr$ to escape the treat.

..#.#.0 Proportionalit4
The defence must "e proportionate to the attack and to resist it. The element of proportionalit$ introduces us to another aspect of selfFdefence. 2o far we ha e anal$sed the necessar$ conditions and situations where an act of selfFdefence pro ides a complete !ustification i.e. no guilt in the e$es of the law. Kour reaction must "e proportion to the treat against $ou. -owe er we can also ha e an e(cess of selfFdefence. 't can "e said that this occurs when the ictim in order to apprehend the danger adopts means which are not proportionate to the attack and which go "e$ond that which is necessar$ to resist the attack. Hor instance * attacks B and starts punching him in the face) B in some wa$ or another frees himself takes out a gun situated in his pocket and shoots in the direction of *, causing his death. *rticle <<6 %d& pro ides that if a person acting in selfFdefence e(ceeds the limits imposed "$ law, "$ the authorit$ of "$ the necessit$ shall "e considered to ha e committed an e(cusa"le wilful homicide or !ustifia"le "odil$ harm. Thus contrar$ to !ustifia"le homicide or grie ous "odil$ harm we ha e the agent who is lia"le of ha ing committed an offence which is considered "$ law as e(cusa"le. 'n this case the agent will not "e totall$ e(empt from lia"ilit$ and punishment, howe er there will "e a mitigation of punishment in "oth cases. -owe er when anal$sing each case, one has to take into consideration the state of mind of the accused. 't is not allowed that a man keeps a calm and "alanced !udgement in the face of a serious and imminent peril and, therefore miscalculations and errors of !udgement under such circumstances are ine ita"le. 1ur criminal code, er$ wisel$ goes on sa$ing that if a person is in e(cess of legitimate selfFdefence caused due to the suddenness of the danger confronting him, fear or fright the accused shall not "e lia"le to an$ punishment.

C.&.4Ci!il .ub+ection C.&.2)ro!ocation

'n all the cases $ou ha e to pro e / that the person lost his self control and did the offence in the heat of "lood, and < that a normal person of ordinar$ temperament would also in the situation ha e lost his self control . !igifieri !ekk ta?"iLlek gha( !ghidlek "ongu ma tigie( skuLat


General Principles of Criminal Law

Pro ocation e(ists, in response to conduct on the part of he deceased or ictim the accused loses his selfFcontrol and takes life. Pro ocation is fre?uentl$ pleaded alongside selfFdefence, "ut is to "e distinguished from selfFdefence, which is a complete defence, which leads to ac?uittal while, pro ocation leads to a mitigation of punishment. *ccording to -ume Ano provocation of words, the most foul and abusive, or of signs or gestures, however contemptuous or derisive so ever, is of sufficient weight in the scale. B 0acdonald is similarl$ unam"iguous. Awords of insult, however strong, or mere insulting or disgusting conduct, such a jostling or tossing filth in the face, do not serve to reduce the crime of murder to culpable homicideB. /. The defendant must ha e killed "ecause he was pro oked, not merel$ "ecause pro ocation e(isted. There must "e a causal relationship "etween the pro ocation and the killing. 2o if the defendant sought the pro ocation in order to kill his opponent the punishment will not "e mitigated. #(cept in such circumstances, the re?uirement of causal relationship hardl$ limits the defence, "ecause there is pro ocation followed immediatel$ "$ a killing. The causal relationship will "e readil$ inferred unless there is e idence of premeditation. * man who carries a weapon with which he kills will "e in danger of failing in the defence of pro ocation if the !ur$ think that the pro ocation was a mere prete(t for the use of the weapon. But there is no rule e(cluding the defence in these cases. # en though the defendant was carr$ing the fatal weapon, the defence of pro ocation is capa"le of succeeding if he had no intention of using the weapon "efore the pro ocation was offered. <. The law attempts to distinguish "etween a killing in cold anger, when there is a deli"erate decision to kill after weighing up the pros and cons, and an impulsi e killing in hot "lood where there is no weighing up at all. This distinction seems to make sense, howe er sometimes it ma$ "e hard to appl$. 'n practice it is decided "$ the immediac$ of the defendantBs response to the pro oking e ent. This must "e sufficientl$ recent for the defendant to "e passionatel$ affected "$ it at the moment of killing. 'f the inter al occurs "etween the pro ocation gi en and the act done, it is a ?uestion of fact whether the passion e(cited "$ the pro ocation still continued or whether the defendant had calmed down. @nless the inter al is er$ long, the ?uestion must "e left to the !ur$. 'n /5<7 the court of Criminal *ppeal considered not impossi"le that pro ocation should "e a defence where the inter al that had elapsed was "etween /I and <= minutes and the weapon was a knife. 1n the other hand, where the lapse of time was as long as ;> hours, the court of Criminal *ppeal apparentl$ took the iew that the issue of pro ocation need not ha e "een left to the !ur$. 1n the issue of cooling time, reliance is sometimes placed "$ the prosecution, on the fact that the defendant did not ha e the weapon on him at the time and so had to fetch it. 'n this case the accused took up some time and had time to think on his action. 'n the meantime he could ha e taken up some other "usiness in the meantime, or that he meditated his re enge and used some trick. This denotes that the action was thought of rather than caused "$ iolence and ungo erned passion. 'n an *merican case, where the sla$er tried to make a telephone call in the interim, this was held to show that the killing was not in the heat of passion, though the cooling time would not otherwise ha e "een thought sufficient. 1n the other hand an #nglish

General Principles of Criminal Law

,udge accepted a plea of guilt$ to manslaughter upon pro ocation notwithstanding that a telephone call had inter ened. 'n Police s. #manuel Ta"one, 0r ,ustice C. +e Gaetano in his !udgement said the following E ilFpro okaLL!oni trid tkun tali illi fBnies taB temperament ordinar!u komunement iggi" lF effett li ma !kun( kapaci li !?isu lFkonsegenLi tadFdelitt /where it is committed by any person acting under the first transport of a sudden passion or mental excitement in conse-uence of which he is, in the act of committing the crime, incapable of reflecting0 the offender shall be deemed to be incapable of reflecting whenever the homicide be in fact attributable to heat of blood and not to a deliberate intention to kill or to cause a serious injury to the person, and the cause be such as would, in persons of ordinary temperament, commonly produce the effect of rendering them incapable of reflecting on the conse-uences of the crime085: VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

; Attempts
+23 *hosoever with intent to commit a crime shall have manifested such intent by overt acts which are followed by a commencement of the execution of the crime, shall, save as otherwise expressly provided, be liable on conviction ! +a3 if the crime was not completed in conse-uence of some accidental cause independent of the will of the offender, to the punishment established for the completed crime with a decrease of one or two degrees0 +b3 if the crime was not completed in conse-uence of the voluntary determination of the offender not to complete the crime, to the punishment established for the acts committed, if such acts constitute a crime according to law. +#3 )n attempt to commit a contravention is not liable to punishment, except in the cases expressly provided for by law.5< # er$ offence has its "eginning and its consummation %completion&. Generall$, the "eginning of the offences is onl$ a thought. This thought can actuall$ spring to mind in a matter of seconds "ut there is still the thought. @nder our law, thoughts on their own are not punisha"le unlike under #nglish Law, which has the doctrine of conspirac$ %the e(change of thoughts "etween two or more persons&. The ne(t step is to manifest $our thought simpl$ "$ e(changing $our iews with someone else. 0anifestation ma$ in ol e speaking "ut it could also in ol e materialit$ %doing something&.
This manifestation is followed "$ acts of preparation. Then, one passes on to the acts of commencement of e(ecution and finall$ if the plan is successful, there would "e the completion D consumption of the offence. Hor e(ample for a person to commit a homicide there could "e arious other offences committed and completed done to arri e to the final scope of the offender. 0anifestation of thought
;7 ;5

*cts of preparation

*cts of Commencement of #(ecution

Completion of offence

*rticle <<6 %c& of the Criminal Code *rticle 8/ of the Criminal Code


General Principles of Criminal Law

Ket not all crimes succeed. The shot which misses its target, the "ank ro""er$ which is interrupted "$ the timel$ arri al of the police all these are e(amples of attempted crimes. 'n such circumstances, no o ert damage ma$ "e done to the communit$. The ictim of attempted homicide ma$ not e en "e aware of the damage. 0ost of the time the actual deleterious conse?uences of an attempted crime could "e e en considered as negligi"le. 4o great harm is caused "$ the wouldF"e ro""ers who are caught "$ the police !ust "efore the$ start the ro""er$. Ket the person who was to "e poisoned ma$ resent some effects e en if his poisoning is pre ented.

;.1 The punishment o Attempts

*s regards this matter there are arious points of iew e(tending from one e(treme %total non punishment& to the other e(treme %punished as if the$ were committed crimes. The argument for total nonFpunishment of attempts is not con incing. *n attempted crime constitutes a threat to social peace and a challenge to the legal order. To ignore attempted criminal offences it tantamount to condonation, and therefore a legal response to attempted crime is "oth !ustified and necessar$. Ket this response must "e a measured one, and should reflect the actual gra it$ of what has "een done "$ the accused. The other e(treme is that there should "e no distinction "etween committed crimes and attempted crimes. 'f criminal law is concerned with the moral assessment of conduct, then it should "e "ound to punish e en attempts and there should "e no distinction according to results. Hrom the moral point of iew he who desists from continuing his offence, or does not succeed and he who succeeds in his offence are on the same le el of wrongfulness. :hile this argument has undou"ted appeal, its application in criminal law is generall$ thought to "e inappropriate. Criminal law is concerned with results ine ita"l$ so and there are clear reasons wh$ the law should focus on what actuall$ happens in the ph$sical world rather that what might ha e happened. *ttempts are therefore less serious "ecause the$ fail to satisf$ necessar$ re?uirements for the full criminal sanction. 'n addition to this attempts cause less damage than completed attempts. 0oreo er an offender who desists from committing the crime has the incenti e of a lesser punishment. 'f on the other hand the two had the same punishment committing of not the offence would "e irrele ant for the offender. Thus he would not care whether he kills or not the ictim. *ccording to 0altese Law the offence can "e unsuccessful either in conse?uence of some accidental cause independent of the will of the offender or through the oluntar$ desistance of the offender. -owe er, in "oth cases there would still "e an attempt. *ccording to our law, there are two wa$s of desistance. accidental and oluntar$. *ccidental in the sense that if it was for the offenderBs will he would continue with the offence, $et an accident occurred which pre ented this continuance. 'n this case the punishment is mitigated "$ one or two degrees. 't ma$ occur that an offender commits arious other crimes, as part of the acts of preparation, so as to attain the final result %e.g. homicide& $et when he is a"out to commit the murder an accident occurs. 'n this case he is punished for the other crimes commenced and completed "ut the punishment for homicide is mitigated "$ one or two degrees. 1n the other there is oluntar$ desistance. This implies that there ha e "een acts of commencement of e(ecution "ut the crime has not "een completed due to a oluntar$ determination. 'n these cases the punishment is gi en for an$ acts alread$ committed if those acts amount to a criminal offence in themsel es.


General Principles of Criminal Law

;.2 Distinction between (oluntary desistance and Accident in Malta

# en though there is a er$ thin line "etween one and another distinction is possi"le and can "e easil$ illustrated "$ means of the following e(amples. Two $ouths were in the car park of the -ilton -otel. 1ne of these $ouths was armed with a pistol, which howe er did not work. The$ knew that in a particular room of the hotel, there was a German, whom the$ were ac?uainted with and whom the$ thought, was not at the hotel at the time. 1ne of them clim"ed up the "alcon$ of this particular room, "ut as soon as he went inside he heard someone snoring so that he panicked. -e !umped out of the "alcon$ and was immediatel$ caught "$ the police. The $ouths had intended to commit theft and their plea was that the theft had not happened "ecause of oluntar$ desistence of at least one of them. 1n another occasion, a person who is inside a house with the intention to commit a theft, sees a picture of the sacred heart and he desists from committing the crime. :hat is the distinction "etween the two situationsO 'n the case of the two $ouths, had it not "een for an accidental circumstance independent of their will, i.e. the une(pected presence of a person in the hotel room, the two $ouths would ha e continued with the commission o the crime. The$ had apparentl$ thought that the German would not "e at the hotel room at that time, so that his "eing there was accidental and independent of their will. The accidental cause acted "$ wa$ of ps$chological compulsion upon the will of the $outh who clim"ed up in the hotel room, compelling him to desist. The presence of a person in the room scared him and it raised the spectre of his "eing caught. -is desistance from committing the crime was compelled "$ the accidental circumstance and not oluntar$) it was imposed upon him "$ an e(ternal agenc$ independent of his will. -owe er, in the second case, the person who is inside the house, read$ to commit theft, and who desisted after noticing the picture of the sacred heart is oluntar$ desistance and is not "eing interrupted "$ an accidental circumstances independent of his will. 't is true that the fact that the picture was placed there, was accidental and did not depend on his will, "ut the law does not re?uire that the desistance should "e a"solutel$ spontaneous, that is, prompted solel$ "$ repentance or returning good feeling independentl$ "$ an$ other moti e. The law is satisfied if the desistance was oluntar$ or if the determination of a crime was made freel$ "$ him, and not imposed upon him "$ some e(ternal agenc$, independent of his will. 'n this case, the agent had a"andoned his attempt to commit theft "$ desisting freel$ out of a change of mind which was prompted out of repentance. This uFturn was "rought a"out "$ noticing the picture of the sacred heart which did not amount to an impediment to the further e(ecution or the completion of the crime, confirming that his desistance was oluntar$. The distinction "etween the two cases is that in the first case, the desistance was imposed upon the offender "$ an accidental e(ternal agenc$ independent of his will. -ad it not "een for this accidental circumstance, which offered a serious threat to the continuance of the offence, the offender would ha e completed the crime. 'n the second case, the offender, after noticing the picture of the sacred heart, oluntaril$ desisted out of a change of mind. Contraril$ to the first case in the second this did not amount to an impediment to the further e(ecution of the offence. The iew of the hol$ picture did not amount to a fear of "eing caught "ut rather to a moral fear of good wrong.

;.& "hat conduct amounts to an attempt5

'n most common law s$stems, legislation defines the point at which a punisha"le attempt is committed. Their codes re?uire that the accused should ha e gone "e$ond mere preperation

General Principles of Criminal Law

for the commission of the offence. Continental penal codes similarl$ set out criteria of ar$ing precision as to when an attempt occurs. Ket the most difficult thing still remains, to distinguish "etween acts of preparation and acts of commencement of e(ecution. 'n the 'talian Code the line of demarcation has "een pushed "ackwards "ecause it simpl$ speaks of the following. Aatti diretti in modo non e-uivoco a commettere un delittoB. The difficulties inherent in deciding when an attempt occurs are illustrated in the following h$pothetical se?uence. /. <. ;. 8. I. >. A decides to ro" a "ank) -e purchases a map of the town in which the "ank is situated) -e isits the town and walks past the "ank to iew from the outside) -e enters the "ank and discreetl$ sketches the la$out on a piece of paper) -e "u$s a gun to use it on the ro""er$) -e sets out from his house, armed with the gun, a face mask and a "ag for the mone$) 6. -e enters the "ank wearing the mask "ut not $et pointing the gun or making an$ demand) 7. -e points the gun at the cashier and asks for the mone$) 5. The cashier presses an alarm "utton. A, losing his ner e, runs out and returns home. There is little dou"t that at some point in the series of e ents, A ma$ "e said to ha e attempted to ro" the "ank. Ket the point at which the attempt actuall$ occurs is not clear. 'f A were to "e interrupted and arrested at point %/&, there would "e no attempt since he was not a"le to proceed further. Criminal law does not recognise Athought crimesB. * person ma$ form criminal thoughts in his mind "ut since he does not proceed he wonBt ha e committed a criminal offence. 't is e?uall$ clear that "$ point %7& an attempted crime has "een committed) $et, "etween these e(tremes, the position ma$ "e less certain. 2ome ma$ regard %>& as marking the watershed "etween preparator$ action and attempt) others ma$ feel that it would "e premature to infer an attempt e en at this point 't is useful to distinguish, e en if er$ difficult an attempt from what is not. *n attempt is not a completed act) e?uall$ it is not mere preparation. * prospecti e purchaser of an item does not attempt to purchase an item when he consults an auction catalogue or inspects the item at a iewing. 't can "e said howe er, that an attempt is made to purchase an item once a "idding instruction is gi en. The acts which recede that are preparations for the actual making of the attempt) the$ are preparations for the actual making of the attempt) the$ are not sufficientl$ close to the completed action to "e categorised as attempts. Preparator$ acts ma$ "e fundamentall$ different in nature from attempts, in that the$ are not une?ui ocall$ refera"le to the actus reus of a crime. 0oreo er, the idea that preparation does not amount to an attempt allows the law to recognise the alua"le possi"ilit$ of withdrawal from a criminal plan at an earl$ stage. 't seems rights and sensi"le that the law should, so far as is consistent with pu"lic safet$, encourage repentance "efore matters proceed too far. * potentiall$ useful wa$ of distinguishing "etween preparator$ acts and attempts is to ask whether the accused was, at the point in ?uestion, Atr$ing to do the criminal offenceB. 'f the answer is $es, ten he has gone "e$ond the point of preparation) if the answer is no, then he is merel$ preparing. @nder our Law up to the acts of Preparation, no offence is committed, unless what has "een done up to that points, amounts in itself to some other specific offence. The most difficult

General Principles of Criminal Law

thing is to distinguish "etween acts of preparation and acts of commencement of e(ecution. :hen the commencement of the e(ecution starts we would "e a"le to speak of attempts. *ccording to *rticle 8/ there must "e a manifestation of such intent %thought& "$ o ert acts. Thus there is the emphasis that there must "e an e(ternal manifestation of this thought or intent, which must "e e(ternalised e en "$ talking. This manifestation must "e followed "$ the commencement of the e(ecution of the crime. @*hosoever with intent to commit a crime shall have manifested such intent by overt acts which are followed by a commencement of the execution of the crimeA 'n the case P s. Lawrence Patrick Ciantar u 0ario Bar"ara, the court preceded o er "$ 0r. ,ustice Carmel *. *guis said. HlFisfond talFkuncett tradiLL!onali in mater!a taB tentatti taB reat adottati millFWorti taghna u cFcirkostanLa taB ser? taB karoLLa %se""ene ghallFuLu "iss&, hu inkoncepi"li li lFatt fidFdahhil taB ca etta fisFserratura talF"ie"a tistaB "B (i mod tigi kkunsidrata "hal att taB preparaLL!oni u mhu( "hala att taB konsumaLL!oni.

;.4 Attempts in case o impossible crimes

The de"ata"le point regarding this issue is whether there can "e a punisha"le attempt when the act was done with intent to commit a crime is of such a nature that the completion is impossi"le. 1" iousl$ to complicate matters, there are arious theories regarding this issue.

;.4.1.ub+ecti!e element
# er$ attempt is punisha"le e en if the complicit$ of the crime "$ the means used was impossi"le) 't gi es mush importance to criminal intent manifested "$ the agent) This is the iew taken "$ the #nglish Common Law) *ccording to such theor$ a man who not onl$ formed the intent "ut manifested such intent "$ e(ternal acts and has commenced the e(ecution of the crime, "$ means which he thought efficient and sufficient for the purpose deser es to "e punished e en though without his knowing such means were in fact inefficient and insufficient. The agent did all necessar$ to accomplish the criminal act and the inefficienc$ of the means cannot diminish his degree of guilt

;.4.2Ob+ecti!e or physical element

This theor$ considers the possi"ilit$ of a successful issue as an indispensa"le ingredient. *cts which in nature cannot result in an$ harm are not mischie ous either in their tendenc$ or in their result and therefore are not crimes) 'n case of attempt law does not punish intent "ut such action cannot "e punished in so far as it has e(posed rights of others to actual danger) *n impossi"le crime cannot e(pose the rights of the indi idual to actual danger) -owe er inefficienc$ of the means e(clude an$ form of A pericolo percorribileB and e(clude criminal lia"ilit$ a"solute.

Carrara distinguishes "etween %i& a"solute inefficienc$ and %ii& relati e inefficienc$. %i& :hen means used could in no circumstances in!ure the right of whoe er or whiche er the person or thing against whom or upon which the$ were directed. #.g. * intending to kill B "$ shooting thought he could do so "$ loading the


General Principles of Criminal Law


firearm with "lank cartridge achie ement of wrongful purpose is impossi"le) so thee is no criminal lia"ilit$. :hen the means were not in themsel es capa"le of completing the intended crime owing to particular conditions of the person or of the thing against whom or upon which criminal action was directed, "ut could complete that crime the$ were used against another person or upon another thing or accompanied "$ different circumstances. #.g. * firearm loaded with a "ullet which at a shorter distance could ha e caused the death of B. here there will still "e criminal lia"ilit$ and punishment for a criminal attempt.

$.6.2.0 Criticism of t/e O&Cective t/eor4

The o"!ecti e theor$, though ?uite accurate is somewhat defecti e. 't ma$ "e right no to punish an act which could not issue an$ harm, "ut this is hardl$ a sufficient reason for not dealing with persons criminall$ inclined. 'n fact it ma$ "e said that e er$one who attempts a crime is to some e(tent a social danger. Glan ille :illiams held that the o"!ecti e theor$ could hold goal in so far as the law is considered as purel$ deterrent or retri"uti e

1F Complicity > )arties to a Crime

There are certain offences which, "$ their er$ nature cannot "e committed without the concurrence or participation of two or more persons e.g. conspirac$. The product of the !oint acti it$ or two or more person is known as Concursus delin-uentium. 1ur code recognises onl$ two wa$s of taking part in an offence, that is, either as a principal or as an accomplice. The principal is the person who is the actual perpetrator of the act constituting the offence. *lmost alwa$s he is the man "$ whom this act itself is committed. But there could "e case were the principal used other innocent persons to act instead of him. The act ma$ ha e "een committed "$ hands of an innocent agent. -e ma$ instruct a child of si( $ears to go in a shop and steal from it. 'n this case the principal is the sole offender. There ma$, of course "e more than one principal in an offence) thus, all the mem"ers of a gang of thie es ma$ ha e fired simultaneousl$ at the owner who has surprised them. The$ are coFprincipals since the$ ha e taken part in the killing which constitutes the crime of murder. *ll others who, without taking part in the actual perpetration of the act which constitutes the offence "ut are ne ertheless concerned in the commission of such offence, are known as accomplices.

1F.1 Aeneral Rules applicable to all orms o )articipation in an O ence

The su"!ect of a criminal offence is the person who willed and committed the offence. 4ow the notion of participation in an offence implies that while one and the same is the offence committed the persons responsi"le thereof are se eral. The two or more persons concurring in the offence must "e shown to ha e intended one and the same offence and to ha e done something towards committing it. :hen this is shown the punishment for the offence is not di ided or apportioned among the se eral confederates) for although there is o"!ecti el$ onl$ one offence, $et this is su"!ecti el$ multiple. The punishment must, therefore, likewise reproduce itself in respect of each of them. But the degree of guilt of each of the parties ma$ ar$ "$ reason of the circumstances of the offence and is to "e determined independentl$ of that of the others engaged in the same offence.

General Principles of Criminal Law

Hrom this we ma$ draw the two following principles which form the "asis of the whole doctrine of Concursus delin-uentium. /. * man ma$ "e held responsi"le for an offence, e en though he ma$ not ha e done the act which constitutes that offence, if he had done some other act which constitutes that offence, or if he had done some other act which has helped towards the commission of the offence and had done the act in pursuance of a common design to commit that offence) <. #ach of the parties to an offence is lia"le to punishment in respect of that offence "ut onl$ in proportion to his indi idual guilt. The rule a"o e laid down that a man can "e said to ha e concurred in an offence onl$ in so far as he willed and intended that offence and has done something towards its commission, leads to the following circumstances.

There cannot "e a concursus delin-uentium without a common design to commit a specific offence. 4o matter how effecti el$ the act of one person ma$ ha e helped another in the commission of the offence, the former is not responsi"le as a coF principal or an accomplice, unless it can "e shown that he did the act with the purpose of assisting the perpetration of that offence)

<. The mere manifestation of a criminal intent without some acti e proceeding to cause it to "e carried out, does not amount to a criminal participation. * defendant charged as an accomplice must "e pro ed to ha e done something in furtherance of a common purpose, i.e. he must procure, incite or, in some other wa$ specified in the law, encourage or assist in the act done "$ the principal. The man should ha e done some effort for the offence to "e committed. Hrom this it follows that. /. 4egati e participation is inconcei a"le. 'f a person knows of an unlawful act that is going to occur and does nothing to pre ent it, the law cannot punish him for his inaction. 't must howe er "e noted that there are some cases in which Ato do nothingB to pre ent the commission of an offence is in itself treated as an offence "$ the law. This notion of negati e complicit$ must not "e confused with that of complicit$ "$ negati e acts of omission which create a state of things fa ouring or facilitating the commission of an offence)

Concurrence after the fact is impossi"le. Thus to conceal the dead "od$ of a murdered person cannot in itself "e considered as a participation in the respecti e crimes. Law, in fact, punishes all such actions, as offences sui generis, "ut it would "e a"surd to regard them as forms of accession to the crime. 4or can it "e o"!ected that such actions are er$ often "ut the carr$ing our of pre ious promise, it would "e such promise mad "efore the e ent that would constitute complicit$, and not its fulfilment after the fact)

;. Participation in an offence cannot "e punished unless an offence has in fact "een committed. 't is necessar$ that the result of the common design and the !oint effort should "e in itself criminal and punisha"le at least as an attempt, in order that the se eral persons concerned ma$ "e held coFresponsi"le.

General Principles of Criminal Law

1F.2 Acts o Complicity

4 . ) person shall be deemed to be an accomplice in a crime if he ! +a3 commands another to commit the crime0 or +b3 instigates the commission of the crime by means of bribes, promises, threats, machinations, or culpable devices, or by abuse of authority or power, or gives instructions for the commission of the crime0 or +c3 procures the weapons, instruments or other means used in the commission of the crime, knowing that they are to be so used0 or +d3 not being one of the persons mentioned in paragraphs %a3, %b3 and %c3, in any way whatsoever knowingly aids or abets the perpetrator or perpetrators of the crime in the acts by means of which the crime is prepared or completed0 or +e3 Incites or strengthens the determination of another to commit the crime, or promises to give assistance, aid or reward after the fact. These pro isions in 2ection 8<, which specif$ the se eral modes in which a person ma$ "ecome an accomplice in an offence committed "$ another, cannot "e widened "$ an$ e(tensi e interpretation or "$ analog$, and therefore, an$ act which does not fall within the terms of those pro isions cannot "e considered a an act of complicit$.

1F.2.1 Complicity by Moral participation

These forms of complicit$ consist in words or acts which create or encourage another personBs intention and determination to commit an offence. The$ are referred to as moral or formal elements of crime. The first and most direct mode of "ecoming an accomplice in this wa$ is "$ gi ing orders for the commission of an offence %2ec 8< %a&&. 'n continental legal doctrine, this form of complicit$ is termed as 0andate %mandatum&. The three elements of 'andatum are. %i& the order, offer or proposal) %ii& the acceptance) %iii& the e(ecution. 't is immaterial whether the mandate "e gratuitous or a reward. :hat is essential is that there should "e a compact or agreement "etween the mandate %the accomplice& and the agent %the principal& for the preparation of the offence. 'f the order or proposal is not accepted, no ?uestion of complicit$ can arise. 2o also if, after a refusal, the person to whom the order was gi en or proposal made, changes his mind and, without consulting the accomplice commits the offence, he is solel$ responsi"le, for no connection as of cause and effect would e(ist in such case "etween the wouldF "e procurer and the offence and in the theor$ of complicit$, such casual connection is essential to impose on the accomplice !oint lia"ilit$ with the principal. There cannot "e an$ ?uestion of complicit$ were no offence has "een in fact committed or, at least attempted. The procurement in this form of complicit$ must e continuing. for if the procurer repents and actuall$ countermands his order and the principal notwithstanding commits the offence, the original conni er will not "e an accomplice. But this e(ception takes place on two conditions, namel$. %i& %ii& the re ersal of the order must "e "rought to the notice of the principal) and notice of this re ocation of the order must reach the principal in good time.


General Principles of Criminal Law

The second form of complicit$ "$ moral participation consists, according to our law, in instigating the act of the principal "$ means of gifts, promises, threats, machinations or culpa"le de ices or "$ a"use of authorit$ or power %section 8< %"&. 0ere instigation, unaccompanied "$ an$ of these circumstances, as "$ e incing a liking, appro"ation or assent to anotherBs criminal design or committing an offence, is not sufficient to constitute this form of complicit$. The "ri"es, promises, threats etc., must "e efficient, that is to sa$, such as "e in fact calculated to determine the principal to commit the offence. The last form of complicit$ "$ moral participation is that found in section 8< %e&. These are different from what is known as instigation to commit a crime. There is a su"stantial different "etween inducement to commit a crime and the incitement or the strengthening of the resolution of the offender. 'n the first case it is assumed that the idea to commit the crime is the effect of the inducement. 'n the second the incitement or the strengthening of the offenderBs resolution it is assumed that the idea to commit the crime is alread$ concei ed in the offenderBs min, "ut he lack courage to carr$ it into effect and some"od$ else strengthens his will. 't is to "e noticed that in all the definitions of complicit$ so far considered, the law does not make use of an$ such words as Aknowingl$B, Amaliciousl$B etc., to denote that the order, the instigation, or the incitement to commit the offence or the promise to gi e help after the fact must proceed from a wrongful intent on the part of the accomplice. 't is ?uite o" ious since $ou cannot concei a"l$ order or instigate or incite a man to commit an offence unless $ou ha e the intention that it shall "e committed.

1F.2.2 Complicity by )hysical participation

These forms consist in the performance of ph$sical acts which materiall$ assist in, or facilitate, the perpetration or e(ecution or completion of the offence and are refera"le to its ph$sical or material element. The essential conditions common to those forms of complicit$ "$ ph$sical participation are. %i& that the accomplice should "e conscious of the offence contemplated "$ the principal and ha e the intention of assisting him in committing it) %ii& that the accomplice should ha e done some act in furtherance of the criminal design which he shares with the principal) %iii& that the act of the accomplice should ha e in fact helped in the commission of the offence. 4ow according to our law, a person ma$ "ecome an accomplice in the following wa$s. %i& "$ procuring he weapons, instruments or other means of which use had "een made in the commission of the offence, otherwise it cannot "e said that the$ ha e in an$ wa$ contri"uted to the iolation of the law, knowing that the$ were to "e so used) or %ii& "$ knowingl$ aiding or assisting in an$ manner the principal or coF principals in the acts of preparation or commission of the offence. The elements mentioned in point %i& are ?uite o" ious and the former is an application of the principle that there cannot "e guilt$ participation in an offence without a common design. Guilt$ knowledge on the part of the person suppl$ing weapons, instruments or other means must "e clearl$ pro ed. "ut er$ often the nature itself of the means supplied %e.g. a dagger& will furnish a clear indication of such knowledge.


General Principles of Criminal Law

't must howe er "e noted, as 9o"erti points out that it is not a"solutel$ essential that the means pro ided should ha e full$ ser ed the precise purpose for which the$ were supplied. 'f for e(ample an accomplice pro ided the thief with a weapon to "e used in case he found an$ resistance, $et he didnBt, the accomplice is ne ertheless lia"le if the weapon has in an$ wa$ whate er "een of use, as "$ intimidating the ictim or e en onl$ "$ gi ing confidence to the thief. Likewise, it is not essential that the thief ha e consummated the theft, it "eing sufficient that he should ha e attempted it. *s regards the second element there cannot "e guilt$ participation without proof of a Acommon designB "etween the parties for the consummation of the offence. The act of the accomplice must ha e onl$ "een done Aknowingl$B, "ut it must also ha e Ain factB helped the principal in the preparation of the consummation of the offence. There cannot "e complicit$ unless there has "een at least an attempted offence. :hen we speak of aid gi en in the acts of consummation of the offence, we assume that the aider has not himself taken an acti e part in the er$ act that constitutes the offence. for in that case he would "e a coFprincipal and not an accomplice. 0ere presence ma$ "e sufficient to constitute this kind of complicit$.

1F.& 1n!oluntary o ences

'n iew of the fundamental rule that there cannot "e true participation in an offence unless the parties ha e acted in pursuance of a common design, in other words as specified a"o e, so that the mind and the will of "oth of them were directed to the same offence, it is generall$ held that the notion of concorsus delin-uentium is incompati"le with the definition of in oluntar$ offence. :hen an in oluntar$ crime is the result of the concurrent negligence of two or more persons, each of them is accounta"le for his own act.

1F.4 Crimes rom .udden )assion

2ome writers hole that concursus is impossi"le in respect of offence which are unpremeditated and committed in the transport of a sudden passion. This argument is that the state of mind and the feelings of the person acting in such circumstance rules out the possi"ilit$ "$ the e(istence of a common design "etween them. 'n respect of offences so committed "$ se eral people each one of them answers for his own act without reference to the acts of others. The opinion howe er, pre ails that as regards to attempts the ?uestion is not one of law "ut one of fact and e idence, and cannot "e determined "$ a general and a"stract rule. 't is not impossi"le that two or more persons ma$ ha e formed an instantaneous common intention to commit one and the same offence, although "oth agitated "$ sudden passion. :hat the law re?uires to impose !oint responsi"ilit$ is not necessaril$ a preFconcerted plan or calculated premeditation. a common purpose formed on the spur of the moment is sufficient.

1F.2 Attempted Complicity

Complicit$ in an attempted punishment is o" iousl$ punisha"le and responsi"ilit$ thereof is contracted "$ all those who concurred in it. The fortuitous e ent which pre ents the consummation of the offence naturall$ a ails the accomplice as it a ails the principal, in he sense of reducing his lia"ilit$ "ut not in the sense of e(cluding it completel$.


General Principles of Criminal Law

The ?uestion is whether the oluntar$ desistance which so a ails the principal offender, "enefits also his associates. The answer would "e in the affirmati e if the there is no act lia"le to criminal responsi"ilit$. *s to what happens when the principal offender repents and turns "ack "ut after he has alread$ committed the act which o"!ecti el$ constitute an attempt, opinion amongst writers is di ided. 'mpallomeni thinks that in such case the desistance of the principal offender should a ail not onl$ himself "ut also his associates. Ket according to Carrara the principal who desists in time escapes punishment "ecause of his oluntar$ desistance, $et for the accomplices this is !ust an accidental cause independent of their will. This appears to "e more consistent to our law since section 8/ when dealing with uncompleted crimes "ecause of accident does not e(clude an$ other act of preparation done "$ the principal of the accomplices

1F.8 )unishment o Accomplices

Jnless otherwise provided by law, an accomplice in a crime shall be liable to the punishment established for the principal.?E The trial and punishment of an accomplice is independent of that of the principal. 2ection 8> la$s down that when the material e(istence of an offence is esta"lished, the accomplice shall "e lia"le to "e punished independentl$ of the principal and notwithstanding that such principal shall die or escape or he pardoned or otherwise deli ered "efore con iction, and this e en in the case in which it is not known who in particular is the principal. 1ur law has sanctioned "$ positi e enactment the doctrine of Acorrelati e complicit$B. This means that when two or more person ha e determined to commit an offence in common and, in the act of carr$ing out the common design, onl$ one of them actuall$ perpetrates the act constituting the offence "ut it is not possi"le to ascertain who it is, the$ are all punished as accomplices. VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

11 Conspiracy
@p till <==< conspirac$ was limited to special law like under chapter /=/ section << /f.

a plotting to commit an offence. the coming together of two or more people with a common intention which is to do an unlawful act or to do a lawful act "$ unlawful means.

:hatBs the difference "etween conspirac$ and attemptO 'n an attempt a commencement of e(ecution is re?uired whilst in conspirac$ it is not. 't is difficult, howe er to distinguish in certain offences, whilst in others it is not. #g. homicide "ut not in the importation of drugs. Therefore, the mens rea is the underl$ing connector "etween act and conspirac$. Conspirac$ came into "eing due to a coup dBetait. -owe er some special laws also dealt with conspirac$ such as Chapter /=/ of the laws of 0alta which refer to the +angerous +rugs and 1rdinance *ct.

*rticle 8; of the Criminal Code of 0alta


General Principles of Criminal Law

The notion of Conspirac$ came to us from @.M. law "ut their notion was er$ general. #speciall$ with the introduction of organiLed crime, it is agreed that conspirac$ is dangerous enough in itself and ought to "e punished. -owe er, man$ of these cases were ac?uitted due to lack of proof. *ll the following sections mention conspirac$ in a certain wa$. 2ection > 0edical and kindred 1rdinance *ct 2ection ;5 #(change Control *ct 2ection > /%c& Permanent Commission against Corruption *ct. 2ection ;< +rugs 1rdinance *ct 2ections I6,I7,>6,68 and ;;7 paragraph d Criminal code 2ection 87 a of the criminal code which introduced for the first time. Later discussed. General conspirac4 one can conspire to commit an$ offence %@.M. law& 0alta also has a general form of conspirac$. There is a di iding line "etween conspiring to commit an offence and performing the attempt to e(ecute an offence. Conspirac$ and attempt are different. * formal offence is the completion of an offence which does not re?uire a final result. The law does not define conspirac$. 'n Common la7, conspirac$ is defined as the agreement of two or more persons to do an unlawful act or to do a lawful act "$ unlawful means. Conspirac$ gi es rise to 8 essential elements which are. 0% t/e act of agreement 2% t/e persons agreeing #% t/e purpose agreed upon 6% t/e formal element + mens rea :h$ do we ha e conspirac$O The law in this circumstance contemplates and punishes the indirect harm which ma$ rise if the conspirac$ where to "e permitted to take it nature cause. Conspirac$ is an indirect harm composed of doing something wrong and unlawful and also makes reference to the num"er of people in ol ed. The fact alone that the persons ha e agreed to do an unlawful act, if left unchecked is posing a threat and danger on societ$. 9/e act of agreement conceptuall$ there must "e an act of agreement "$ which < or more persons agree on something. This is the e(ternal act of the offence Actus Reus. This act of agreement is not merel$ the intention "ut the announcement and acceptance of that intention. The act can "e an$ sign or "odil$ mo ement which is indispensa"le to effect this agreement. The "odil$ mo ement can "e an$ "ut it must con e$ or accept. 't is important to note that one can conspire with unknown people. @nder #nglish law, the fact that a person has announced the intention and the other has accepted it, shows that conspirac$ is complete. :e might agree to do a crime "ut not reall$ ha e to intention to carr$ it out so under 0altese law that is not enough, there is the re?uirement also


General Principles of Criminal Law

that the parties must also agree on the mode of action meaning that the$ must ha e the determination to carr$ it out. -ection 6. (a% (2% in 0alta the mode of action is seen as conspirac$ and not onl$ the acceptance. There must "e an agreement on the mode of operation. The distinction of 0altese law against the #nglish law must "e made. @.M. R. vs Aspinell (0. 1% G9/e crime of conspirac4 is completel4 committed t/e moment 2 or more persons /ave agreed t/at t/e4 7ill do at once or at some stage future time certain t/ingsH + t/is confirms t/at an agreement to commit an offence completes t/e offence. 9/e persons agreeing G conspirac4 is generall4 called a crime of com&ination and not a crime in com&inationsH F conspirac$ cannot "e committed "$ one person.

't is an essential that there is a pluralit$ of people in ol ed "ut it is not essential for coF conspirators to "e tried together. 't is possi"le to ha e conspirac$ if coFconspirators are known or unknown. The agreement can "e forwarded through a t/ird person. This was agreed upon in the @.M. R vs Griffits. (0$1"% The court in this case implied that it is perfectl$ possi"le to ha e an original conspirator and other conspirators attached to the same conspirator. 't is irrele ant whether plan is er"al or in writing.

Purpose agreed upon F -ec 6. (a& U to commit a crime punisha"le with imprisonment in 0alta. The purpose must "e to commit an offence punisha"le with imprisonment in 0alta. The onl$ e(empted crimes are those under the Press *ct which cannot "e formed under offences of conspirac$. Formal element for the offence of conspirac$ to "e complete there must "e an agreement to commit a crime. -owe er, this alone is not enough. *part from the proof of a mode of action, the intent to commit a crime and also the fact that the conspirators intended to commit the offence must "e present. Therefore it is important to remem"er one fundamental point which is that in t/e :.I. an agreement to commit an offence is sufficient. *n Malta5 -ec 62(a% (2% states t/at it is not sufficient to /ave onl4 an agreement as t/e conspirators must agree as to /o7 to commit an offence. This notion must not "e mi(ed up with preparator$ acts.


:hat happens if two persons agree to commit an act and agree also on a particular mode of actionO #g.& simulate contracts to reduce estate to claim less ta( %illegitimate action&. +ue to ta( e asion one is arraigned in court "ut the defence sa$s that he did know that act was wrong e en though conspirac$ occurred. Therefore, the fact of agreement is sufficient and ignorance of the law is no e(cuse. *XB intended and agreed to commit an act and such agreement is a iolation of a particular law. This proposition is found in the @.M. courts and is stated in the case of.


General Principles of Criminal Law

C/urc/ill v. Balten (0$11% @nder our law there is no e(ception in the case of ignorance of the law "ut it is taken for granted that it applies to it. -ec 6.(A% -ec "1 U conspirac$ to take awa$ the life of the President. This will also appl$ if one did not know the special status of the President. *nother form of conspirac$ is drugs importation. eg& N was accused of importing drugs and conspiring to import drugs. +efence was that the$ did not know that the o"!ects were drugs and that some"od$ su"stituted drugs from talcum powder. 'f it were true that some"od$ su"stituted drugs with talcum powder, prosecution must pro e its case as there must alwa$s "e a presumption of innocence. -owe er, in fact there is a defence $ou want to raise, it is up to the defence to pro e it. 'n trial, if prosecution manages to pro e the charge, it is up to the defence to pro e the onus of proof which in criminal cases is "e$ond reasona"le dou"t. 'gnorance of the law does not full$ defend conspirac$ "ut mistake of fact can reduce punishment drasticall$. 'n conspirac$, one must also agree in the mode of action. The intent and mode of action must "e pro ed. 't is not necessar$ that there "e a preparator$ act. Contrast -ec " (0% (2% + not onl4 conspirac4 &ut also preparator4 acts. And -ec 6.(A% + preparator4 acts are not included. 9o"erti writes that what the law re?uires is a mode of action definitel$ concluded "etween conspirators such that without need of an$ further deli"eration the$ can proceed to action. (*P The mode of action must therefore "e complete in the sense that the ne(t step is the commencement of the su"stanti e offence. (*P *greement of a mode of action does not mean commencement of e(ecution. Therefore if an *.G. mistakenl$ writes the charge of conspirac$ of homicide, and a homicide occurred, then the charge of conspirac$ will pre ail. #g& one decides to commit a hold up. The intention and agreement on who would do what was written. The leaflet e(plaining all the e ent was left at the "ar and found and later reported to the police. # er$ person present and written is guilt$ of conspirac$ as there was an agreement. The following statement demarcates completel$ the difference "etween conspirac$ and attempts. Repu&&liDa vs. -tep/en 3o/n CaddicD ,9. C/ief 3ustice =e Gaetano 3ustice Filletti 3ustice -cicluna (1t/ Marc/ 222#%

@nder our law, the su"stanti e crime of conspirac$ to deal in a dangerous drug e(ists, and is completed from the moment in which an$ mode of action whatsoe er is planned or agreed upon "etween two or more personsB %+angerous +rugs 1rdinance 2ection <<%/& %*& Ch /=/&. There the intention is not enough. 't is necessar$ that the persons taking part in the conspirac$ should ha e de ised and agreed upon the means, whate er the$ are, for acting, and it is not

General Principles of Criminal Law

re?uired that the$ or an$ of them should ha e gone on to commit an$ further acts towards carr$ing out the common design.8/ 'f instead of the mere agreement to deal and agreement as to the mode of action, there is a commencement of the e(ecution of the crime intended or such crime has "een accomplished, the person or persons concerned ma$ "e charged "oth with conspirac$ and the attempted or consummated offence of dealing, with the conspirac$ and the attempted or consummated offence of dealing, with the conspirators "ecoming %for the purpose of the attempted or consummated offence& accomplices. in an attempted or consummated offence, coFnecessaril$ %also& going to show that there was %pre iousl$& a conspirac$, and this for a er$ simple reason, mainl$ that two or more persons ma$ contemporaneousl$ decide to deal in drugs without their "eing "etween them an$ pre ious agreement. VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

12 )unishment
12.1 Ri#ht o the state to in lict punishment
*part from the historical !ustification of stateBs right to inflict punishment there is a philosophical "asis for this right. There are arious schools of legal and philosophical thought that agree with this. /. 1n doctrine la$s down that the state e(ercises its puniti e functions in irtue of a transfer or delegation originall$ made to it "$ the indi idual mem"ers. *ccording to Blackstone, 't is clear that the right of punishing crimes against the law of nature, as murder, is in a state of mere nature ested in e er$ indi idual. Hor it must "e ested in some"od$, otherwise the law of nature would "e ain and fruitless, if non where empowered to put them in e(ecution. This right was transferred to an authorit$ which pre ented that e er$one would "e the !udge in his own case 4ow this power of e(ecution is ested in magistrates and !udges "$ the consent of the whole communit$. The lawfulness of punishment is founded upon this principle that the law "$ which the$ suffer was made "$ their consent. it is a pact of the original contract into which the$ entered when first the$ engaged into societ$. This doctrine is founded on the h$pothesis of he social contract familiar to the philosoph$ of the /6 th and /7th centuries. -owe er the right of the sate to inflict punishment for wrongdoing cannot ha e "een transferred or delegated from each single mem"er of societ$ in the process of passing from the state of nature to the ci il state, nor it is the same right as that of pri ate retri"ution enforced "$ the indi idual in a primiti e societ$ although in the formation of the ci il state it has supplemented the right. 't is a right A sui generisB inherent in e er$ constituted societ$ "eing essential to its er$ e(istence and to the discharge of its function as the guardian of law and order. <. *ccording to a second theor$, the state possesses the right to punish offences against its own laws solel$ as a means of selfFdefence in the same manner as e er$ indi idual has the right to react with iolence against aggression. -owe er, societ$, in inflicting punishment for a wrong alread$ committed cannot "e likened to a man causing an in!ur$ to another in the act of defending himself against the his aggressor.
+istinction "etween conspirac$ and attempts. (*P to understand 7ell. All @uotes are t/e divide &et7een conspirac4 and su&stantive offence.


General Principles of Criminal Law

;. * third theor$ is that this right is necessitated "$ !ustice itself. 9etri"uti e !ustice it is said re?uires pain of some sort to "e inflicted on a man who has committed a criminal wrong, e en if no "enefit results to the person in!ured or to the communit$. Punishment is the !ust reward of ine?uit$ and it is right and proper, without regard to ulterior conse?uences that, e il should "e returned with e il. 'n /56>, Mant strongl$ influenced an *merican committee where the$ stated that !ustice meant A!ust desertsB. 'n fact MantBs theor$ of retri"uti ism used to sa$ that punishment must alwa$s "e inflicted on the offender for the sole reason that he committed a crime. 4ow it is scarcel$ needful to o"ser e that such a conception of retri"uti e punishment is inadmissi"le. Punishment is in itself an e il, and can "e !ustified onl$ as the means of attaining a greater good. 9etri"ution is in itself not a remed$ for the mischief of the offence, "ut an aggra ation of it. # en Locke pointed out, that e en in a state of nature there would "e a difference "etween re enging oneBs self on a criminal and punishing him. *lthough #uropean cultures appro e o puniti e moti es, the$ disappro e of engefulness, e en though the$ are not alwa$s eas$ to distinguish. *nother form of the idea of purel$ retri"uti e punishment is that of e(piation. 'n this iew crime is cancelled or e(piated "$ the suffering f its appointed penalt$. To suffer punishment is to pa$ a de"t due to the law that has "een iolated. Guilt plus punishment is e?ual to innocence *ccording to the e(ponents of this theor$ God re?uired that sin shall "e e(piated "$ the chastisement of the sinner an it is therefore, right that the recognition "$ imposing a punishment which will cause the lawF"reaker to e(piate his offence "$ suffering. This theor$ is clearl$ "ased on a confusion "etween law and moralit$. The di ergence of the criminal from the moral law is shown not onl$ "$ the fact that there are man$ sins which are not legal offences "ut "$ the fact that there are man$ legal offences which are not sins. 8. The last theor$ com"ines elements of some of the theories alread$ mentioned. 't founds the right of punishment upon the natural function of the state as the guardian of law and order. Punishment must take the form of a ps$chological or mental coercion induced "$ means of the threat of an e il to "e inflicted upon the wrongFdoer himself from repeating he in!ur$ and deter all other from imitating him. People are deterred from actions when the$ refrain from them "ecause the$ dislike what the$ "elie e to "e possi"le conse?uences of those actions. 'n this manner the right of punishment is made to repose on the three principals of utilit$, !ustice and the moral sense of the communit$. @tilit$ "ecause all laws is intender for the willF"eing of societ$) !ustice "ecause this re?uires that suffering should "e the reward of ine?uit$) the moral sense, "ecause the mental attitude which "est "ecomes all men, when in!ustice is committed, should "e of the righteous indignation which feels a legitimate satisfaction when fitting !ustice is dome upon the e ilFdoer. ,ustice should mark the limit within which it can rightl$ "e e(ercised and the pu"lic conscience would decide the forms in which it can "est "e e(ercised within those limits. 't pro es that the state has the right to inflict criminal punishment in respect of these offences "eing "reeches of the law of nature or in other words eternal law which constitute infractions of indi idual rights %murder, theft etcE&.

General Principles of Criminal Law

This theor$ offers no e(planation of the undou"ted right of the state to punish also those offences which constantl$ increase in num"er as ci ilisation progresses, and which no moral wrongfulness arises "ut are created for social con enience %i.e. contra entions 0odern Criminal doctrine re affirms the utilitarian iew that the puniti e agenc$ of the sate in relation to e er$ s$stem of positi e law, rest upon the principles of social utilit$ and the protection of societ$ VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV

'n e(tradition proceedings, there is no o"ligation for the re?uested state to surrender the offender "eing re?uested, apart from when so o"liged "$ treat$. *t international law, a state is free to choose whether to e(tradite or not. 0alta is not free to e(tradite offenders to certain countries. * treat$ is a written agreement "$ which < countries intend to create a relationship "etween them. This treat$ ma$ "e a "iFlateral or multiFlateral treat$. Besides such treaties, a state also has domestic statute regulating e(tradition as an internal matter. 2. 8;%/& of the Constitution, in fact, stipulates that /extradition is only permitted in pursuance of arrangements made by treaty and under the authority of a law.8 Toda$, in 0alta, e(tradition proceedings are regulated "$ the #(tradition *ct %/567&.8< The #(tradition *ct makes reference to designated foreign countries and to designated Commonwealth countries. 't is the 0inister of ,ustice who can so designate. Part '' of the *ct deals with Commonwealth countries, while Part ''' deals with foreign countries. 0oreo er, Part 'C contains pro isions applica"le for the return of offenders to all countries, whilst part C contains pro isions for the manner of treatment of offenders returned to 0alta. The act also contains a er$ important schedule of e(tradita"le offences in so far as designated Commonwealth countries are concerned.

1&.1 *undamental Rules o ,/tradition

%i& The +ou"le Criminalit$ 9ule8;

Hor a person to "e e(tradited, the act or omission with which he is charged, or for which he has "een con icted, must "e a criminal offence, not onl$ in accordance with the law of the re?uesting countr$, "ut also in accordance with the law of the re?uested state. 'n this, howe er, one must note that the offence ma$ not necessaril$ "e of the same name. 88 This is irrele ant, as long as the facts of the act concerned are an offence in "oth countries. There is an underl$ing legal reason for this. @nder the law, the rule is the li"ert$ of the su"!ect. *n$ restriction of that li"ert$ must emanate from the law. To !ustif$ the depri ation of this freedom, the act must also "e a criminal offence in "oth countries. 'n this, one has to anal$se the fact, which is punisha"le.8I
8< 8;

Chapter <6>, 9e ised Laws of 0alta. *s laid down in 2. I%/"& of #(tradition *ct, stating that /for the purposes of this )ct an offence of which a person is accused or has been convicted in a designated Commonwealth country is an extraditable offence in respect of that country if the act or omission constituting the offence, or the e-uivalent act or omission, would constitute an offence against the law of 'alta if it took place within 'alta or, in the case of an extra,territorial offence, in corresponding circumstances outside 'alta.8 88 Hor instance, in the @M, the taking of something from the possession of someone else ma$ "e termed as larcen$, whilst in 0alta it is theft. 8I Hor instance, in the e(tradition proceedings against Bernard 0oore, who was accused of conspirac$ to import drugs, form *ustralia to 0alta which at the time was not punisha"le under 0altese law, since the law pro ided for complicit$ "ut not for conspirac$, the Court held that since conspirac$ was unknown to our law, 0oore could not "e e(tradited for that offence. -owe er, he still could "e e(tradited for the actual importation of a dangerous drug e en though importation of a dangerous drug was classified as infringing a customs law.


General Principles of Criminal Law

@nder certain Common Law and other !urisdictions, there is the prima facie re?uirement 8> of e idence. %ii& The 9ule of 2pecialit$

The person returned can onl$ "e prosecuted in the re?uesting countr$ for the offence for which e(tradition had "een re?uested. * person who has "een returned, upon e(tradition ma$ not "e tried "$ the re?uesting state for an act other than that for which that person has "een e(tradited "$ the re?uesting state. The surrendered person shall neither "e prosecuted, nor punished for an$ offence other than that pro ing the ground of the surrender.86 This is meant to ensure that the decisions taken in the re?uested state are not nullified "ut o"ser ed "$ the re?uesting state. @nder our law, the rule of specialit$ is safeguarded "$ 2. /=%;& of the #(tradition *ct which pro ides that /a person shall not be returned under this )ct to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the law of that country, or by an arrangement made with that country, for securing that he will not7be dealt with in that country for or in respect of any offence committed before his return under this )ct other than +a3 the offence in respect of which his return under this )ct is re-uested0 +b3 any lesser offence proved by the facts proved before the court of committal0 or +c3 any other offence being an extraditable offence in respect of which the 'inister may consent to his being so dealt with.8 This nonFlia"ilit$, howe er, e(tends onl$ to those offences committed "efore his return. The purpose of e(tradition is for the prosecution and punishment of the offender. *n$ person, whate er his nationalit$ ma$ "e the su"!ect of e(tradition proceedings. -owe er, there are man$ countries which do not e(tradite their nationals, although in such cases, the re?uested state often respects the underl$ing purpose of e(tradition, in that all suspects should face !ustice, "$ choosing to prosecute them itself. This on the "asis of the aut dedere aut !udicare principle, where a state either surrenders the re?uested person, or !udges him itself. This practice of not e(traditing oneBs own nationals is usuall$ practiced "$ ci il law countries, were e(tradition is usuall$ defined as the surrender of aliens, there"$ e(cluding oneBs own nationals. 1n the other hand, in Common law countries, it is held that it is essential that persons accused of a crime should "e tried as close as possi"le to the place were the alleged offence has "een committed. The reason "eing that the e idence will "e in the places were the offence was committed. 'n practice, there is a discretion on the part of the Common law countries whether to e(tradite or not, "ut pro ided that there are the necessar$ safeguards, then the$ tend to e(tradite. 'n 0alta, 2. //%<& of the #(tradition *ct pro ides that /the 'inister may refuse to make an order8 of e(tradition /+a3 where the re-uest is for a person unlawfully at large after conviction and the punishment if less than four months imprisonment0 +b3 where according to the law of the re-uesting country the offence in respect of which the return is re-uested is subject to the death penalty and the re-uesting country has not given an assurance accepted

'.e., "efore the person sought can "e e(tradited, the re?uesting countr$ must show prima facie e idence that the person is trul$ lia"le to guilt of an offence 86 Cide case of Luigi Paduano %/8 +ecem"er /56;& who was re?uested for < offences "ut were onl$ one offence resulted to "e e(tradita"le. 1n that, he was e(tradited. 'n this case, the rule of specialit$ was infringed, in that the re?uesting state sought to prosecute for the other offence, howe er, following opposition, the authorities surrendered.


General Principles of Criminal Law

as sufficient by the 'inister that the death penalty will not be awarded or will, if awarded, not be carried out0 +c3 where the re-uest is for the return of a person convicted of an offence in his absence and the re-uesting country has not given an assurance accepted as sufficient by the 'inister that such person will be granted a new trial if he so re-uests0 +d3 if prosecution for the offence in respect of which extradition is re-uested is barred by prescription either according to the law of 'alta or according to the law of the re-uesting country0 +e3 where the re-uest is for a person who is in 'alta having been returned thereto7 and the $overnment is under an obligation not to return such a person to another country0 +f3 if an amnesty has been granted in respect of the offence for which the return is re-uested and the courts of 'alta had jurisdiction to try that offence0 YandZ +g3 if the person whose extradition is re-uested is a citiBen of 'alta.8 Conse?uentl$, the e(tradition of 0altese citiLens is possi"le "ut the 0inister of ,ustice has a discretionar$ power whether to authorise such e(tradition or not. Cer$ often, such discretion is go erned "$ international treaties. There are < methods "$ which to determine the e(tradita"ilit$ of a criminal offender, namel$ %i& the enumerati e87 approach, and %ii& the eliminati e85 approach. 'n the list approach, which is the method used "$ 0alta in respect if designated Commonwealth countries, there is a list of acts that are e(tradita"le offences. 1n account of the differences "etween the legal s$stems, these offences must necessaril$ "e phrased in generic terms. The principle thus, is to go "$ the nature of the fact and not "$ the name of the offence. This approach is used "$ Common law countries, howe er, toda$ the$ are increasingl$ realiLing of the ad antages on the nonFlist approach. 't is argued that the eliminati e 19 41 L'2T 0#T-1+ is gaining ground toda$ approach, on the other hand, does awa$ with the uncertaint$ and incompleteness of the list approach, there"$ "eing superior. -ere, e(tradita"le offences are defined simpl$ "e referring to the punish a"ilit$ of a particular offence laid down for the offence. @suall$ this minimum amount of punishment is / $ear imprisonment or a more se ere punishment %if it satisfies the offence is therefore e(tradita"le&. But this minimum punishment must "e in "oth countries, otherwise difficulties ma$ arise. There is a hint of the eliminati e approach in 2. I%/a& I= of the #(tradition *ct in so far as designated Commonwealth countries, and 2. 7%/a&I/ in so far as designated foreign countries.

1&.2 )olitical O ence ,/ception

't is a generall$ recognised principle that e(tradition is refused for political offences, or offences of a political character. This was not alwa$s so and there was a time when there was nothing pre enting the e(tradition of political offenders. But with the ad ent of democrac$ and the recognition of the greater rights and freedoms of the citiLens, the right to li"ert$ and the recognition that sometimes the onl$ wa$ "$ which people could o"tain a measure of freedom was through re olt. 't e entuall$ "ecame acknowledged that no e(tradition could "e sought for people who attempt to o erturn a t$rant.
87 85

'.e, list. '.e, nonFlist. I= 2. I%/a& states that an e(tradita"le offence is such if /it is an offence which, however, described on the law of that country, falls within any of the descriptions set out in the %chedule of this )ct, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment08 I/ 2. [%/a& states that an e(tradita"le offence is such if /it is an offence in respect of which a fugitive criminal may be returned to that country in accordance with the arrangement and is punishable under that law with imprisonment for a term of twelve months or a greater punishment08


General Principles of Criminal Law

2. /=%/a& of the #(tradition *ct esta"lishes the general restriction for the return of political offenders in stating that /a person shall not be returned7if it appears to the 'inister or the court of committal, that the offence of which that person is accused or was convicted is an offence of a political character.8 This pro ision is also enshrined in 2. 8;%<& of the constitution which esta"lished that /no person shall be extradited for an offence of a political character.8 'n this, it is to "e noted that there is no compara"le right under the terms of the #uropean Con ention on -uman 9ights, although this ma$ "e tackled indirectl$ under the pro isions of other *rticles. 2. 8;%/& of the Constitution also pro ides that e(tradition can onl$ "e affected under /arrangements made by treaty and under the authority of a law.8 Through 2. 8;%8&, the Commonwealth scheme is ele ated to the le el of a treat$ for the purposes of the #(tradition *ct. There is, howe er, no definition of what a political offence is, neither in the Constitution, nor in the #(tradition *ct. Thus, it is up to the constitutional court to decide whether the offence for which a person is re?uested is of a political character or not. 'n practice, this lack of definition creates pro"lems, were since we cannot "ind the hands of the Constitutional Court in this respect, 0alta needs to "e er$ careful in the ratification of international treaties, which increasingl$ tend to la$ down that certain offences are not of a political nature.

1&.& )olitical O ence ,/ception

#(tradition is prohi"ited in case of political offences, "oth "$ the Constitution as well as under the terms of the #(tradition *ct, were 2. /=%/a& of the #(tradition *ct esta"lishes the general restriction for the return of political offenders in stating that /a person shall not be returned7if it appears to the 'inister or the court of committal, that the offence of which that person is accused or was convicted is an offence of a political character.8 This pro ision is also enshrined in 2. 8;%<& of the constitution, which esta"lished that /no person shall be extradited for an offence of a political character.8 'n such cases, this is also the rule generall$ followed in international law. 4either the Constitution, nor the #(tradition *ct, howe er, pro ides a definition of what is understood "$ an offence of a political character. -owe er, in this respect, certain criteria ha e "een de eloped "$ foreign courts, which criteria are also used "$ our courts. * er$ "road classification of political offences identifies "etween %a& purel$ political offences and %"& relati e political offences. Purel$ political offences are offences directed against the political organisation of the go ernment of a state, which contain no element of common crime and are generall$ known as offences against the securit$ of the state. 2uch offences tend to "e directed against the Constitution or political so ereignt$ of the regime. 'n such cases, the agent is the instrument of a political part$ and "ears no personal malice against the indi idual 9elati el$ political offences, on the other hand, are usuall$ descri"ed as offences of common character, which, howe er assume a political character on account of their "eing closel$ connected with political acts or e ents. These offences cause greater pro"lems in identif$ing, since the$ are offences, which are against the ordinar$ criminal law, "ut which, assume a political character "ecause the$ are connected with political acts or e ents. Hor this reason, the$ are sometimes referred to as comple( offences, were such offences ha e "een said to


General Principles of Criminal Law

assume a political character on account of the moti e of the agent. I< 't has "een held "$ the British Courts that /crimes otherwise extraditable become political offences if they formed part of a political disturbance.8 The pro"lem, in such cases, is to determine the degree of pro(imit$ of a political act re?uired to render an ordinar$ crime into a political offence. The British test is er$ li"eral, were the courts argue that the facts must "e considered according to the circumstances e(isting at the time of e(tradition. The 2wiss courts, howe er, ha e de eloped a less li"eral approach. The$ de eloped the following criteria to determine whether an offence is of a political nature, namel$. %a& the offence must ha e "een committed for the purpose of helping or ensuring the success of a purel$ political offence)I; %"& there must "e a direct connection "etween the crime committed and the purpose pursued "$ a part$ to modif$ the political or social organisation of the 2tate) and %c& the political element must predominate o er the ordinar$ criminal element. 'n the iew of the British courts, howe er, for the offence to "e of a political nature there must "e some sort of dispute "etween the political parties contending for power within the state. I8 The mere fact that an offence is directed at the go ernment or go ernment propert$ is not enough to make an offence one of a political character. 0oreo er, mere hate, or lack of faith is insufficient. Hor an offence to "e of a political nature there must "e < or more political parties in the state, each seeking to impose the go ernment of its own choice on the other so that, if the offence is committed "$ one side or the other, in pursuance of this o"!ecti e, it is of a political character. This position is criticised, howe er, in that in totalitarian states there is onl$ one part$. *nd the a"sence, within a state of political parties, does not "$ itself pre ent an offence from "eing of a political character.II *nother criterion used "$ the British Courts is that the notion of a political offence necessaril$ applies to cases of opposition to the go ernment so that cases of political significance or were the offence would not "e committed e(cept for a political purpose, the$ would "e e(cluded. 't is generall$ though that in political offences, the person sought is at odds with the state on some issue connected with the political controls or the go ernment of the countr$.I>

1&.4 Murder o -ead o .tate

't is generall$ held that the murder of the -ead of 2tate of a foreign go ernment, or e en of a mem"er of his famil$, is not a political offence, "$ international e(tradition practice. 2. /=%I& of the #(tradition *ct specifies that /an offence against the life or person of a head of state7shall not necessarily be deemed to be an offence of a political character.8 Thus, 0altese law does not e(clude that such offence is a political offence. * main reason for such wording is pro"a"l$ that since it is the role of the Constitutional Court to determine whether an offence is of a political nature or not, the law cannot e(clude. 0oreo er, the law is conceding that it could, in appropriate circumstances "e an offence of a political character.I6

I< I;

2uch as for instance, theft committed for a political moti e. '.e., a criminal act, directed against the political or social organisation of the state. I8 Cide. Castioni Case and 0eunier Case. II Cide. 9. s. Go ernor of Brickston Prison e(. MoleL$nski. I> Cide. Little!ohn Case %/56I& 'n this case, the court held that although the Little!ohnBs ro""ed mone$ from a "ank, not for their own use "ut for the '9*, the political element was not more rele ant than the common element of the crime and !udged that this was, thus, not a political offence. I6 Hor instance, in the case of Caucescu in 9omania in /575.


General Principles of Criminal Law

1&.2 Terrorist2C Acts

*s a rule, these are generall$ e(cluded from the categor$ of political offences. 'n such cases, the accused is not identified with a part$ seeking to impose the go ernment of its own choice on another, "ut rather with a part$ seeking to destro$ all go ernments. There is howe er, no e(hausti e definition of what is an offence of a political nature. But, it would seem that such offences are such were there is opposition against the go ernment of the re?uesting countr$, or the issue of the control of go ernment and are aimed at the political organisation of the state. *n ordinar$ crime, which affects the rights of indi idual citiLens rather than the state, though it ma$ "e committed with a political moti e, ma$ still not "e considered as a political offence. *cts, such as treason, are usuall$ regarded as "eing of a political character, when murder, e en if politicall$ moti ated, ma$ not alwa$s "e of a political character.

1&.8 Reli#ious or Racial Discrimination or the .uppression o *reedom o ,/pression

These can also gi e rise to o"!ections to e(tradition. 'ndeed, 2. /=%/c& of the #(tradition *ct states that @a person shall not be returned7if it appears to the 'inister or to the court of committal that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, place of origin, nationality, political opinions, colour or creed.8 2uch grounds of refusal are commonl$ found in "oth multilateral and "ilateral treaties of e(tradition. British courts ha e held that for e(tradition to "e refused on account that the accused might "e persecuted on account of his opinion, there must "e proof that the person in ?uestion had gi en e(pression to his opinions in the re?uesting countr$. 1n the ?uestion of pre!udice, there needs to "e su"stantial grounds for pre!udice and not simpl$ the possi"ilit$.

1&.< Death )enalty ,/ception

* re?uested state ma$ make conditions upon the re?uesting state "efore it applies the re?uest for e(tradition. The rule of specialit$ re?uiring that the re?uesting state does not prosecute the person for offences other than that for which e(tradition has "een granted is one such condition. The issue of the death penalt$ is another such condition, were states who no longer ha e the death penalt$ on their statute "ooks and are re?uested to surrender a person to states which do, the re?uested countr$ ma$ refuse e(tradition. 'n such cases, howe er, if the re?uested countr$ ma$ in the future come to re?uest itself the e(tradition of a person from that state ha ing the death penalt$, it would "e likel$ to ha e its re?uest turned down. Thus, a more likel$ approach would "e for the re?uested countr$ to re?uest assurances from the re?uesting state that either the death penalt$ is not imposed, or that if imposed, it will not "e carried through. 2ome states, howe er, o"!ect to such re?uest on the "asis that these re?uests would "e interference on the !udiciar$. -owe er, such arguments are countered "$ the fact that in most cases, it is the prosecution which had the discretion of re?uesting the penalt$ and thus, in such circumstances, the prosecution would "e in a position of re?uesting the death penalt$. 0oreo er, e en in other s$stems, were the prosecution is not in a position to re?uest the

1r anarchistic.


General Principles of Criminal Law

penalt$, if the penalt$ is gi en, through the prerogati e of merc$, the death penalt$ ma$ "e stopped from "eing carried out. 'n 0alta, 2. //%"& of the #(tradition *ct allows the 0inister of ,ustice the discretion to refuse to make an order for e(tradition /where according to the law of the re-uesting country the offence in respect of which the return is re-uested is subject to the death penalty and the re-uesting country has not given an assurance accepted as sufficient by the 'inister that the death penalty will not be awarded or will, if awarded, not b e carried out.8 The death penalt$ is increasingl$ "ecoming to "e considered as an inhuman and degrading punishment. 'n the @2*, there ha e "een mo ements to ha e certain forms of death penalt$ I5 declared as inhuman and degrading treatment. The issue has also arisen in the #uropean Court on -uman 9ights in the 2oering case.>= 6 ,ul$ /575. 't has "een traditionall$ considered that *rt. > of the #uropean Con ention does not appl$ in e(tradition proceedings, on the "asis that at the point of the e(tradition re?uest, the person is not $et charged with a criminal offence, '4 1T-#9 :19+2 T-# P#9214 :1@L+ B# T-#4 C-*9G#+ '4 C9'0'4*L P91C##+'4G2 '4 T-# 9#W@#2T'4G 2T*T#. 'n this, howe er, it seems that 0alta has "ecome an e(ception, in that the Constitutional Court, in Police s. Colin Trundel, held that *rt. > applied also to e(tradition proceedings.

1&.C Be 4is 1n 1dem Rule

'n man$ !urisdictions, it is considered as a general principle of criminal law that a person ma$ not "e su"!ected twice to criminal proceedings for the same offence. This is a corollar$ or as related to the dou"le criminalit$ rule, although not e(actl$ the same. These ma$ look the same "ut the$ are not. 4ormall$, this rule is applied with respect to prosecutions within the same !urisdiction. >/ -owe er, it is further e(tended "$ some countries to appl$ to international law. 'n 0alta, it is to "e noted that a second prosecution is prohi"ited not onl$ for the same offence, "ut also for the same facts. The difference "eing that once the person is prosecuted, he cannot "e prosecuted again for other facts within the same offence, not pre iousl$ considered.>< 'f a person is prosecuted for a less serious offence, in 0alta he cannot again "e prosecuted for the more serious fact within the same offence. 'n other words, a person cannot "e prosecuted for an$ offence for which he could ha e "een prosecuted in the pre ious trail. 'n this respect, 0alta has chosen not to e(tradite if it is shown that the person re?uested will "e prosecuted in the other countr$ in "reach of the 4e Bis 'n 'dem rule. The 4e Bis 'n 'dem rule does not appl$ in cases were con icted persons escape from ser ing sentence. 'n such cases, e(tradition would not "e re?uested for prosecution "ut for the ser ing of the sentence.

I5 >=

2uch as the gas cham"ers. #uropean Court, 6 ,ul$ /575. The #uropean Court agreed that *rt. ; of the #uropean Con ention dealing with inhuman and degrading punishment was likel$ to "e infringed, not "ecause he would ha e "een su"!ect to the death penalt$ "ut due to the long and winding death row phenomenon in the @2*. >/ '.e., if a person is prosecuted once in 0alta, he cannot "e prosecuted again for the same offence. >< Cide. 9e(. s. 9osaria Portelli. Hor instance, in the @2* 1.,. 2impson was prosecuted for the wilful homicide of his wife, of which charge he was ac?uitted. 2u"se?uentl$, the prosecution considered prosecuting him for "reach of ci il rights of the ictim. The$ did not prosecute, "ut could so do. 'n 0alta this would not "e possi"le. *nother e(ample is that of *li 9eLa?, who had "een prosecuted and found guilt$ in 0alta for arious crimes, "ut not for hi!acking an aircraft since this was not considered to "e an offence per se under 0altese law. 2u"se?uent to his release, he was reFcaptured, and the @2* prosecuted him for hi!acking, since this was a different fact.


General Principles of Criminal Law

1&.; )rescription
@suall$, if the criminal act has "een "arred "$ lapse of time, e(tradition will "e precluded. The rational "ehind prescription is that the longer time passes, the less likel$ is it for the findings of relia"le e idence. 'n this, howe er, one must address the ?uestion as to which time limit is to "e applied. 1ften, in this respect, it is argued that since the offence occurred in the re?uesting countr$, it is the prescription period of the re?uesting countr$ which should "e applica"le. -owe er, it is also argued that since dou"le criminalit$ is an important component, if the prosecution in the re?uested countr$ has "een time "arred due to prescription, then the fact looses its criminal character and thus, the dou"le criminalit$ rule is no longer applica"le. 0oreo er, since it is the court of the re?uested countr$, which has to !udge on the matter and the$ are more likel$ to "e aware of the law as applica"le in their !urisdiction, then it should "e the time limit laid down in the re?uested countr$ that should "e applied. 'n practice, the rule is that if the time limit of an$ one countr$ has lapsed, then e(tradition would "e refused. 'n 0alta this is laid down in 2. //%d& of the #(tradition *ct which stipulates that /if prosecution for the offence in respect if which extradition is re-uested is barred by prescription either according to the law of 'alta or according to the law of the re-uesting country,8 then the 0inister of ,ustice ma$ refuse to make the order for e(tradition.>;



*mnest$ is considered generall$ as a "ar to e(tradition. ,ust as prescription in one countr$ is considered as leading to a lack of dou"le criminalit$, so too amnest$. * state can grant amnest$ to persons accused, sentenced, or under in estigation. 't is often held that a state can onl$ grant such amnest$ o er offences in which its courts ha e !urisdiction. -owe er, in realit$, it is generall$ held that there is no such limitation on the state, and indeed, if the national law so allows, it can e en grant amnest$ for offences in other countries.



Hor e(tradition to "e possi"le there needs to "e a re?uest on "ehalf of the go ernment of a designated Commonwealth countr$, or a designated foreign countr$. The re?uest must "e for a person accused or con icted in the re?uesting state, and it must "e in writing. 0oreo er, such re?uest must "e made "$ a 0inister and must contain some "asic information, >I including. The particulars of the person whose return is "eing re?uested, including information ena"ling the determination of nationalit$) The particulars of the facts upon which the person is "eing accused or has "een con icted) The particulars of the law under which he is "eing accused or has "een con icted)


't is howe er, to "e noted that although the letter of the law makes reference onl$ to the 0inister, in the 2atariano case, the Constitutional Court esta"lished that it had !urisdiction. >8 '.e., pardon. >I *s stipulated in 2. /; of the #(tradition *ct.


General Principles of Criminal Law

There must "e the legal description of the offence)>>

There must "e a cop$ of the rele ant enactments, or if this is not practical, a statement of the law) There must "e e idence sufficient to !ustif$ the issue of a warrant of arrest "$ a 0agistrate of ,udicial Police, under 2. /8 of the #(tradition *ct. 0oreo er, the re?uesting countr$ must also pro ide some special re?uirements, namel$. 'f the re?uest is for the return of a person to face charges, then a warrant of arrest issued in the re?uesting countr$ must "e produced. 'f the re?uest is for the return unlawfull$ at large, then a statement of the sentence ser ed, and a cop$ of the sentence must "e produced. *fter a re?uest for e(tradition has "een recei ed, there is usuall$ the authorit$ to proceed, which is an order issued "$ the 0inister of ,ustice at the commencement of the proceedings. The 0inister is not o"liged to issue such an order,>6 "ut in certain circumstances, the law prohi"its him from issuing it.>7 'f the minister issues an order to proceed, this is "rought to the attention of a 0agistrate who has to decide whether to issue a warrant of arrest for the person re?uested. This warrant of arrest for the person will "e issued on the "asis of a corresponding offence in 0alta. 'n certain urgent cases, the 0agistrate ma$ issue a pro isional warrant of arrest, e en "efore a formal re?uest for e(tradition has "een made. >5 Hollowing the issuing of the pro isional arrest warrant, the 0agistrate shall forthwith inform the 0inister of ,ustice and transmit to him the information and e idence or copies thereof, on the "asis of which, the pro isional arrest warrant has "een issued. The 0inister, on his part, ma$, "$ order cancel the warrant and shall cancel the warrant if he decides that he will not issue an order to proceed. 'f the 0inister cancels the warrant, and the person has alread$ "een arrested, then the 0inister shall order his discharge. *fter a person is arrested, committal proceedings commence, were the Court of 0agistrates 6= has to decide whether the person arrested has to sta$ in custod$ awaiting return. 't has, thus, to ensure that there are no o"stacles to e(tradition. * person accused has to "e "rought in front of the Court as soon as possi"le "ut not later than 87 hours following arrest. The Court has to decide on the ?uestion of "ail. 'f the person is arrested on the "asis of a pro isional warrant of arrest, and the Court fails to recei e the necessar$ authorit$ to proceed from the 0inister, it ma$ la$ down a term within which the 0inister will ha e to decide whether to issue such an order or not. 'f the 0inister again fails to issue such an authorit$ to proceed, then the Court would ha e to discharge the person from custod$. 'f an authorit$ to proceed has "een issued, the Court will ha e to decide whether a person is to await return in custod$. To do this, the 0altese Court needs to
>> >6

'.e., the legal definition. 'ndeed, a 0inister ma$ refuse to make an order to proceed if he is satisfied that an order to return would not in fact "e made. %2.// #(tradition *ct& >7 This is so, for instance, were it is clear that an order to return could, in the end, not "e lawfull$ made. %s. /= #(tradition *ct& >5 Hor instance, if it is known "$ the authorities of a re?uesting countr$ that a person is tra elling to 0alta on his wa$ to a ; rd countr$, especiall$ if that ;rd countr$ is one with which the re?uesting state does not ha e e(tradition arrangements, it ma$ re?uest for a pro isional arrest warrant. The 0agistrate must, howe er, recei e information that the person is in 0alta or is on his wa$ to 0alta. 6= *cting as a Court of Criminal 'n?uir$.


General Principles of Criminal Law

e(amine whether there is sufficient prima facie e idence 6/ against the person,6< which e idence would ha e "een sufficient for it to indict the person had he "een charged for an offence in 0alta.6; Hor the Court to order a personBs sta$ in custod$ awaiting return the offence must "e an e(tradita"le offence and there must "e no restrictions to his return.



The Court must "e satisfied that the e idence tendered must "e such as to show a prima facie case of guilt of the charge for which the person is "eing re?uested.68 'n the case of a sentenced person, unlawfull$ at large, the Court must "e satisfied that he had "een sentenced and that he is unlawfull$ at large. 'f so satisfied, the person will await for his return in custod$. 1therwise, the court will order his discharge. 'n this case, howe er, the *ttorne$ General has a right of appeal and therefore, the Court shall transmit the records of the case to the *ttorne$ General within <8 hours, together with its decision. The *ttorne$ General has a right of appeal, which appeal is to "e e(ercised within ; working da$s from the da$ of the receipt of the record. The appeal is filed in the registr$ of the Court of Criminal *ppeal. The *ppeal is "$ application, which is ser ed on the person claimed. The application must "e accompanied "$ the record of the case and the CourtBs decision. 2ince there are <8 hours plus the ; working da$s, the law pro ides 6I that notwithstanding of an$ Court order for the discharge of an$ person, that person shall remain in custod$ until. %a& the lapse of ; working da$s of the Court order and if the appeal has "een entered B$ the *ttorne$ General until the case has finall$ "een determined)6> %"& The *ttorne$ General ma$ order release of person if he decides not to appeal) %c& The person sought ma$ himself file an appeal. :ere the court finds no o"stacles for the e(tradition, it must inform66 the person re?uested that he will not "e returned until the lapse of /I da$s from the order) that he ma$ appeal to the Court of Criminal *ppeal) and that he ma$ appl$ for redress under 2. 8> of the Constitution.67 't is generall$ esta"lished that the pro isions of the #uropean Con ention on fair hearing 65 do not appl$ in cases of e(tradition proceedings, on the "asis of the fact that the person in ?uestion is not accused as such "ut rather a preliminar$ in?uir$ is "eing held "$ the Court in its in estigati e function. -owe er, in 0alta, the Constitutional Court has held that the pro isions for fair hearing appl$ also to e(tradition proceedings.7=
6/ 6<

2. /I%;& of the #(tradition *ct. This re?uirement if not uni ersal. Hor instance, in Hrance and 'tal$, the Courts lea e the matter of sufficient e idence to the courts of the re?uesting countr$. The$ focus onl$ on whether the offence is e(tradita"le or not. 6; There is criticism to this re?uirement, in that it is rather cum"ersome. -owe er, 0altese e(perience has shown that this re?uirement has pro ed useful in dealing with states, whose political or legal s$stems are significantl$ different from ours. 68 'n other words, such e idence needs to "e sufficient to warrant trial for the offence. 6I 2. /I%;& of the #(tradition *ct. 6> 't is increasingl$ "eing recognised that after the Courts determination, if there is an appeal, the person ma$ not "e released on "ail. 66 *s stipulated in 2. /> of the #(tradition *ct. 67 2hould he feel that he had "een committed to custod$ if his return was prohi"ited under the #(tradition *ct or if he thinks that an$ of the pro isions of the Constitution has "een or is likel$ to "e contra ened in his respect. This re?uirement is not usual and is e(pressl$ laid down in the #(tradition *ct. 65 *rt. > of the #uropean Con ention and 2. ;5[>& of the Constitution. 7= Cide. ,ohn Trundell s. 0inister of Horeign *ffairs and ,ustice et., decided on /< *pril /55/.


General Principles of Criminal Law

'n all cases of e(tradition, an appeal is filed "$ wa$ of application. 'n the case of an appeal filed "$ the person re?uested this must "e filed in the 9egistr$ of Court of Committal, as stipulated in 2. /7%/& of the #(tradition *ct.7/ 'f, howe er, such appeal is filed "$ the *ttorne$ General, this is filed in the 9egistr$ of the Court of Criminal *ppeal, as stipulated in 2. /5%/& of the #(tradition *ct. 'n the cases of appeals filed "$ the re?uested person, 2. /7%/& of the #(tradition *ct stipulates that the application shall contain /a demand for the reversal of the CourtAs order, and shall be filed in the registry of the court of committal not later than four working days from the date of the said order.8 1n the other hand, in the case of appeal lodged "$ the *ttorne$ General, 2./5%/& stipulates that /the court shall, within twenty,four hours, transmit to the )ttorney $eneral the records of the case together with a copy of its decision, and the )ttorney $eneral may, within three working days from the date of the receipt of such record, appeal to the Court of Criminal )ppeal by an application, to be accompanied by the said record and by a copy of the decision of the court of committal, filed in the &egistry of the Court of Criminal )ppeal.8 'n the case of appeals lodged "$ the re?uested person 2. /7%<& stipulates that /the &egistrar of the court of committal shall, not later than the first working day, transmit the application, together with the records of the case, to the &egistrar of the Court of Criminal )ppeal, who shall, without delay, forward a copy of the application to the )ttorney $eneral.8 1n the other hand, in cases of appeals lodged "$ the *ttorne$ General, 2. /5%/& stipulates that /a copy of the application shall be served on the person whose return is re-uested.8 'n all cases, 2. /7%;& stipulates that /notice of the day fixed for the hearing of the appeal shall be given by the &egistrar of the Court of Criminal )ppeal to the appellant and to the )ttorney $eneral.8 -owe er, it is further added that /except with the consent of both the appellant and the )ttorney $eneral, such hearing shall not take place before the lapse of two working days after the said notice has been given.8:# 2hould the Court of Criminal *ppeal order the committal to custod$ of the person claimed, 2. /5%<& pro ides that /such order shall be treated, for all purposes, other than an appeal there from, as an order committing such person to custody. 1n the e(piration of < months from the first da$ on which the person claimed could ha e "een returned, should he not "$ then ha e "een returned, 2. <8 pro ides that /he may apply to the Court of Criminal )ppeal, sitting as a court of appeal from judgments of the Court of Judicial .olice, for his discharge.8 2. <8 also pro ides that he ma$ do the same in case were a warrant for his return has "een issued under the terms of 2. </, and a period of one month has lapsed. 'n "oth cases, the court is not "ound to discharge him, and will gi e due weight to an$ sufficient cause for the dela$.

1&.1& The )owers o the Court o Criminal Appeal and the Constitutional Court
'n the case of an appeal under the #(tradition *ct, whether to the Court of Criminal *ppeal or should proceedings reach the Constitutional Court, 2. <= of the #(tradition *ct pro ides that /either of the said courts may, without prejudice to any other jurisdiction, order the person committed to be discharged from custody if it appears to such court that +a3 by reason of the trivial nature of the offence of which he is accused or was convicted0 or +b3 by reason of the
7/ 7<

'.e., the 9egistr$ of the Court of 0agistrates. This is er$ important since otherwise, the appeal would "e null. 2./5%<& pro ides for the same pro ision.


General Principles of Criminal Law

passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be0 or +c3 because the accusation the accusation against him is not made in good faith in the interest of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.8 @suall$, at the appellate stage, the parties cannot produce additional e idence. -owe er, 2. <<%;& of the #(tradition *ct pro ides that /it shall be lawful for the Commissioner of .olice or for the )ttorney $eneral as the case may be, as well as for the person the return of whom is re-uested, to produce evidence before the Court of Criminal )ppeal even though such evidence shall not have been produced before the court of committal.8 This is pro"a"l$ so, due to the fact that due to the urgenc$ of proceedings in the first instance not enough time for the collection and preparation of e idence would ha e "een a aila"le, and secondl$, due to the potential difficulties in communication "etween the re?uesting and re?uested states.


Order or Return

't is onl$ on the "asis of an order for return made "$ the 0inister of ,ustice that a person ma$ "e e(tradited. Thus, the 0inister ma$ "$ warrant, order that a person claimed "e e(tradited to the re?uesting state. The 0inister, howe er, ma$ $et refuse to make an order for return, e en though the Court ma$ ha e found no o"stacles to the e(tradition. 'ndeed, if the 0inister is of the opinion that e(tradition is prohi"ited on account of 2. /= 7; or 2. /<78 of the #(tradition *ct, he is "ound to refuse to issue such an order. 0oreo er, 2. //%<& of the #(tradition *ct grants the 0inister the facult$ to refuse such an order in cases were the punishment awarded is less than 8 months imprisonment) the imposition of the death penalt$ is a possi"ilit$ and the re?uesting countr$ does not gi e assurances that it will not "e imposed) the person has "een con icted in his a"sence and the re?uesting countr$ does not gi e assurances that a new trial will "e held) if the prosecution is "arred "$ prescription) if amnest$ has "een granted in respect of an offence for which the courts of 0alta had !urisdiction) if the person is in 0alta ha ing "een returned to 0alta on a re?uest of e(tradition and the Go ernment is under an o"ligation not to return such a person to another countr$) and if the person is a citiLen of 0alta. 'n an$ case, moreo er, the #(tradition *ct pro ides that a person shall not "e returned prior to the lapse of /I da$s from the date of the order) pending the lapse of an$ time limit for appeal or other proceedings competent to an$ person claimed, and until the conclusion of an$ proceedings instituted.7I 0oreo er, 2. </ %;& stipulates that the 0inister shall not make an order for return if it appears to him that /it would be unjust or oppressive to return that person,8 and this on the "asis of the grounds stipulated in 2. <=7> or 2. /=%/&.76

2. /= pro ides that the 0inister is prohi"ited from issuing an order for return if it appear that the offence in ?uestion was of a political character) that the re?uest is "eing made for the purpose of prosecuting or punishing the person re?uested on account of his race, place of origin, nationalit$, political opinion, colour or creed) if should the person "e returned he would "e pre!udiced at his trial or punished, detained or restricted in his personal li"ert$ "$ reason of his race, place of origin, nationalit$, political opinions, colour or creed) if charged with an offence which it would appear that were he to "e charged in 0alta he would "e entitled to "e ac?uitted under an$ of the rule of law relating to pre ious ac?uittal or con iction) unless sufficient guarantees ha e "een made "$ the re?uesting countr$ that the person re?uested will not "e dealt with in that countr$ for or in respect of an$ offence committed "efore his return under this *ct other than the offence in respect of which he is returned, an$ lesser offence pro ed "$ the facts pro ed "efore the Court of Committal, and an$ other offence "eing an e(tradita"le offence in respect of which the 0inister ma$ consent to. 78 2. /< pro ides that /a person who has been accused of some offence within 'altese jurisdiction, not being the offence for which his return is asked, or is undergoing sentence under any conviction in 'alta, shall net be returned under this )ct to any country, or committed to or kept in custody for the purpose of such return, until after he has been discharged whether by ac-uittal or on the expiration of his sentence or otherwise.8 7I 2. </%<& of the #(tradition *ct. 7> '.e., "$ reason of the tri ial nature of the offence) "$ reason of the passage of time) and "ecause the accusation made is not made in good faith in the interest of !ustice. 76 '.e., if the offence is deemed to "e a political offence) if it is made for purpose of prosecuting or punishing him on account of his race, place of origin, nationalit$, political opinions, colour or creed) or if he might "e pre!udiced at his trial, or punished, detained or restricted in his personal li"ert$ "$ reason of his race, place of origin, nationalit$, political opinions, colour or creed.


General Principles of Criminal Law


Concurrent ReGuests

'n cases of concurrent re?uests, 2. </%8& pro ides that /the 'inister may decide to make no order for the time being under this section for the return of a person committed by the court in conse-uence of a re-uest made by any country if another re-uest for his return under this )ct has been made by another country and it appears to the 'inister, having regard to all the circumstances of the case and in particular +a3 the relative seriousness of the offence in -uestion0 +b3 the date on which each such re-uest was made0 and +c3 the nationality or citiBenship of the person concerned and his ordinary residence, that preference should be given to the other re-uest.8::


Military O ences

0ilitar$ offences are nonFe(tradita"le offences. 'ndeed, 2. <%"& stipulates that /an act or omission which constitutes an offence only against military law but not against the ordinary law of the land shall not be treated as an offence8 for the purpose of the #(tradition *ct.


*iscal O ences

Hiscal offences are usuall$ e(cluded from e(tradition arrangements. # en though, there is an increasing pressure for such offences as ta( e asion to "e included. Toda$ these are included in the list of e(tradition offences alwa$s su"!ect to the dou"le criminalit$ rule and such polices.


The .ub+ect o a Criminal O ence

:ho can "e the su"!ect of a criminal offenceO *ccording to Carrara, onl$ man can "e the su"!ect of a criminal offence, in that for the commissionDomission of a criminal offence there must, per force the capacit$ to will and understand, faculties, which are onl$ possessed "$ man. 'n in?uisitorial s$stems of procedure, the point of departure is the in estigation of the criminal offence and the author of the offence is considered as the o"!ect of the in estigation and not the su"!ect. *ccording to Carrara, there must "e a person who must ha e the capacit$ of will and understanding. -owe er, not e er$ person capa"le of will and understanding is criminall$ lia"le. * person endowed with the capacit$ of will and understanding "ecomes criminall$ lia"le when that capacit$ is e(pressed "$ an act or omission contrar$ to the criminal law, which act or omission is done freel$ and consciousl$. Thus, a person capa"le of will and understanding ma$ "e criminall$ lia"le, howe er, a person to "e criminall$ lia"le, that person must "e capa"le of will and understanding. 't is known that personalit$ ma$ "e ph$sical75 or moral.5= The ?uestion, which arises, is thus, whether a !uridical person can "e the su"!ect of a criminal offenceO

'n other words, in cases were two or more re?uests for return of the same person "$ two or more countries are recei ed, the 0inister ma$ dela$ making an order for return if he thinks that the <nd re?uest is worth considering. 75 4atural, i.e., human "eings. 5= The legalD!uridical person "eing a "od$ of persons and things, which collecti el$ is endowed with legal personalit$ distinct from the personalit$ of the ph$sical persons who compose it..


General Principles of Criminal Law

The traditional iew in this respect was that a legal person could not "e held criminall$ lia"le since such a person did not ha e the capacit$ of will and understanding distinct from the ph$sical persons who compose it. -owe er, it was also argued that the law, "$ a legal fiction could attri"ute the capacit$ of will and understanding to a legal person. To this, howe er, there was the o"!ection that e en if one were to concede that "$ a legal fiction the law ma$ attri"ute to a legal person the capacit$ of will and understanding, it is impossi"le for the law to attri"ute to a legal person the capacit$ to do something illegal. Thus, it would "e impossi"le for a legal person to commit an illegal act since it would still lack the capacit$ to will and understand something unlawful. Thus, it is argued that an$thing illegal, which is done "$ a legal person, would "e ultra ires. 5/ 0oreo er, it is suggested that a legal person can ne er "e the su"!ect of certain punishments, 5< and that in practice) onl$ pecuniar$ penalties can "e imposed. -owe er, with the proliferation of such legal persons, pressure is increasingl$ "eing e(erted to re iew this position and polic$ wise at least, Common Law countries ha e decided to do awa$ with such pro"lems of legal philosoph$ in deciding that e en legal persons can "e held criminall$ lia"le and prosecuted for certain offences. -owe er, e en if it is conceded that legal persons can "e held criminall$ responsi"le, there are certain offences, which are inconcei a"le to "e committed "$ legal persons.5; The legal "asis which is usuall$ argued in fa our of holding a person legall$ responsi"le might take the form of.

Cicarious Lia"ilit$, were the !uridical person is held criminall$ responsi"le for the acts of another person)

Criminall$ responsi"le in its own right on the "asis of the fact that certain officers of the !uridical person will "e deemed to "e in control, in such a wa$ that their conduct and state of mind are in realit$ the legal personBs conduct and state of mind.

Continental text,writers argue that legal persons can have no will of their own independent of the physical persons composing them. In this, practical problems of identifying who is to be criminally liable arise. It is argued that were all the members forming the legal person acted in concert, all of them would be criminally liable and would be liable for punishment. 1n the other hand, if not all of them had the re-uired criminal intent, the punishment of the legal person would, in effect, give rise to the punishment of innocent persons. To date, 0alta follows the continental doctrine. -owe er, there is increasing pressure to change this and indeed, certain pro isions in particular statutes ha e started to "e graduall$ introduced reflecting such a shift of opinion. The definition of a person in indi idual separate statutes, for instance, is increasingl$ including legal persons. 2imilarl$, whene er a legal person infringes a penal law, it is pro ided that the director or other principal officer of the !uridical person would "e held criminall$ lia"le.58 'n 0alta, we ha e also introduced a general pro ision in the 'nterpretation *ct %/56I& ' think article /; ,that the word person includes a "od$ of persons, whether incorporate or
5/ 5<

'.e., "e$ond its powers. 2uch as imprisonment. 5; 2uch as rape, "igam$ etc. 58 'n this, we ha e turned round the doctrine of icarious lia"ilit$ as practiced in the @M, were in 0alta the natural persons are held criminall$ lia"le for the act or omission of the !uridical person.


General Principles of Criminal Law

unincorporate.5I The same act also pro ides that the director, manager, secretar$ or other principal officer of the compan$ shall "e guilt$ of an$ offence committed "$ the compan$ unless he shows * that the offence was committed without his knowledge and B that he did e er$thing necessar$ to pre ent the commission of the offence. 5> Both of these conditions must e(ist together. *rticle 8 paragraph d in the interpretation act of /56I. 'n this, howe er, the ?uestion as to how can one show that he did not know of the offence and at the same time pro e that he did e er$thing possi"le to pre ent it is "ound to rise. 'n this respect, in Police s. Hrances Hormosa %;D/=D7I&, the Court of Criminal *ppeal accepted the interpretation of 2. /; of the 'nterpretation *ct, where the accused need not onl$ show that he did not know of the offence "ut also that, in the e(ercise of his duties, he did e er$thing possi"le to pre ent the offence "$ "eing on the look out for such offences. The Court also added that /it was its firm conviction that there could be circumstances in which, although the director might be aware of the offence, he would not be held liable for the offence8 , howe er the Court stopped short of ela"orating on this point. 'n Police s. *nthon$ Grech 2ant, the Constitutional Court referred to the 2ala"iaku case 56 where it was held that *rticle >%/& 57 did not, in principle, prohi"it presumptions of fact or of law which operate in e er$ legal s$stem. 't also added that the #uropean Con ention did re?uire contracting states to remain within certain reasona"le limits in criminal matters. 55 'n the *nthon$ Grech 2ant case, the Constitutional Court found that these reasona"le limits had not "een e(ceeded. 2. /; of the 'nterpretation *ct can "e seen to "e a mi( "etween the concept of icarious lia"ilit$ and !ustif$ing elements were the director is allowed the means to e(empt himself from criminal responsi"ilit$. Toda$ we ha e introduced real direct corporate lia"ilit$. :e do not $et ha e corporate lia"ilit$ in the criminal code as such. 2o its still does not appl$ under our law. *rticle /</ d. it sa$s were the secretar$. -:-P,<=,= -,<9,<C, A<= PRO'A9*O< OR=,R@nder section <7 a. when a suspension can "e gi en. Kou are suspending the e(ecution of a sentence of imprisonment. The court must then find the guilt on the accused. * suspended sentence can onl$ "e gi en when the court awards the punishment "ut it "eing less then two $ears imprisonment not more. * fine whether it "eing a multa or ammenda cannot "e suspended. The court when suspending a sentence can suspend the sentence for a period of one to four $ears. 't is called the operational period. 2ection <7 %<& deals with how to suspend a sentence %punishment& meaning that it first trails and con icts the case then it gi es the sentence then and onl$ then can the court if it wishes suspend that sentence. 'nstances were a suspended sentence cannot "e gi en. 'f a person is alread$ ser ing a sentence in prison The idea of the suspended sentence is to gi e the offender a second chance "ut the offender knows that during his operation period if he commits another crime he is then lia"le for the two offences "ut there are e(ceptions section <7 %"&
5I 5>

2. 8%d& 'nterpretation *ct. 2. /; 'nterpretation *ct. 56 #uropean Court of -uman 9ights %6D/=D77& 57 Corresponding to 2. ;5%I& of the Constitution of 0alta. 55 't howe er esta"lished that the 2ala"iaku case did not e(ceed such limits.


General Principles of Criminal Law

'f the second offence is of an in oluntar$ offence or an$ other offence, "eing of the opinion of the court that is not !ust to "ring the punishment of the first into action. The court ma$ in this case / a"stain from gi ing the second punishment or < start another operational period of four $ours from that date. 'f the court decides to impose the two punishments the court under sec /6 " calculate the punishment. 'f the person commits a second offence in his operational period he is also to "e dealt with "$ law as a recidi ist sec I=. 'n the case of a suspended sentence sec 85 will alwa$s appl$. But section I= comes into pla$ if the punishment has taken effect and the offender has ser ed his entire sentence. The court ma$ also appoint a super ising officer and this is done er$ fre?uentl$ in the cases of drugs a"use. *part from super ision orders the court under sec <7 %a& can order the offender to pa$ the in!ured part$ compensation. The court can also institute a time limit for the compensation to "e made. This time period cannot e(ceed si( months. 'f he does not pa$ the court can summon him and e(tend that period for a further month and if he still he does not pa$ the court can send the offender to prison. # er$ person who is a recidi ist can ha e an aggra ation in his punishment from sec 85 "ut from section I= it comes out. 2ec I= in the case of a crime first $ou ha e to look at the punishment awarded for that crime in the case of a crime where a punishment is less then fi e $ears the period in which $ou will aggra ate the second punishment is also of fi e $ears. 'f the punishment is more then fi e $ears the period is ten $ears. This period commences from the following da$ after $ou ha e completed $our punishment. 2ec I< sa$s what happens when $ou are found guilt$ of a oluntar$ crime and then during the fi e or ten $ear period $ou are found guilt$ of an in oluntar$ crime or ice ersa. 't is said that the two must "e of the same le el either two oluntar$ or the two in oluntar$. # en with crimes and contra entions.