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The Criminal Code (Amendment) Act, 2005 (Bill No. 69)

A BILL

entitled

AN ACT to amend the Criminal Code, Cap. 9

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the Board of the same as follows>
1. (1) The title of this Act is the Criminal Code (Amendment) Act, 2005, and this Act shall be read and construed as one with the Criminal Code, hereinafter referred to as “the Code”.
(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different provisions or for different purposes of this Act.
2. The present provision of article 222A of the Code shall be renumbered as sub-article (1) thereof and immediately thereafter there shall be inserted the following new sub-articles>
“(2) The punishments established in the foregoing provisions of this sub-title shall also be increased by one to two degrees when the offence is racially or religiously aggravated within the meaning of the following sub-articles.
(3) An offence is racially or religiously aggravated if>

Short title and commencement.

Amendment

of article 222A

of the Code.

C 460

Addition of new article

251D to the Code.

(a) at the time of committing the offence, or immediately before or after the commission of the offence, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group< or
(b) the offence is motivated, wholly or partly, by hostility towards members of a racial group based on their membership of that group.
(4) In paragraph (a) of sub-article (3)>
“membership”, in relation to a racial or religious group, includes association with members of that group<
“presumed” means presumed by the offender.
(5) It is immaterial for the purposes of paragraph (a) or (b) of sub-article (3) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
(6) In this article>
“racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins<
“religious group” means a group of persons defined by reference to religious belief or lack of religious belief.”.
3. Immediately after article 251C of the Code there shall be inserted the following new article 251D>

“Increase of punishment in certain cases.

251D. The punishments established in the foregoing provisions of this sub-title shall be increased by one to two degrees when the offence is racially or religiously aggravated within the meaning of sub-articles (3) to (6), both inclusive, of article 222A.”.

Addition of new article

325A to the Code.

4. Immediately after article 325 of the Code there shall be inserted the following new article>

“Increase of punishment in

certain cases.

325A. (1) The punishments established in the foregoing provisions of this sub-title in respect of a relevant offence shall be increased by one to two degrees when the
offence is racially or religiously aggravated within the meaning of sub-articles (3) to (6), both inclusive, of article
222A.
(2) For the purposes of this article “relevant offence” means any of the offences under articles 311, 312,
314A, 316, 317 to 320, both inclusive, and 325.”.
5. Immediately after sub-article (2) of article 391 of the Code there shall be inserted the following new sub-article>
“(3) Where the witness is a minor under the age of sixteen years the witness shall be examined and cross-examined in one sitting and his testimony shall be recorded by audio-visual means. The audio-visual recording shall form part of the record of the proceedings.”.
6. Immediately after sub-article (3) of article 401 of the Code there shall be inserted the following>
“(3A) Where the court has committed the accused for trial by the Criminal Court the court shall, besides giving the order mentioned in sub-article (3), adjourn the case to another date, being a date not earlier than one month but not later than six weeks from the date of the adjournment.”.
7. Immediately after article 532 of the Criminal Code there shall be inserted the following new articles>
C 461

Amendment of article 391 of the Code.

Amendment of article 401 of the Code.

Addition of new articles

532A and 532B

to the Code

“Orders for payment

of damages upon sentence.

Payment of costs.

532A. The provisions of article 24 of the Probation Act concerning the power of the court to order the offender to pay damages shall mutatis mutandis also apply whenever a person is sentenced upon conviction for any crime.
532B. Where a person is convicted of a crime punishable with imprisonment he shall be liable to pay such amounts in respect of costs as the Minister may by regulations prescribe. Such regulations may specify the crimes and, or the proceedings in respect of which which the regulations shall apply.”.
8. Immediately after article 546(4) of the Code there shall be inserted the following new sub-article>
“(4A) Where a report, information or complaint is made to a Magistrate under this article by a person other than the Attorney

Amendment of article 546 of the Code.

C 462

Amendment of article 550 of the Code.

Amendment of article 550A

of the Code.

Addition of article

575A to the Code.

General or a police officer the Magistrate shall hold the inquest only after having obtained the authority of the Chief Justice who shall give his authority after having established that the necessary pre-requisites for the holding of such an inquest exist.”.
9. Article 550 of the Code shall be amended as follows>
(a) in sub-article (1) thereof, the words “it shall not be necessary to examine” shall be deleted and for the words “in the inquest.” there shall be substituted the words “in the inquest shall not be produced to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry.”<
(b) for sub-article (2) thereof there shall be substituted the following>
“(2) Nevertheless it shall be lawful for the Police to produce any of the persons mentioned in sub-article (1) to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry on specific issues and for the Attorney General to produce any of the said persons in accordance with the provisions of article 405. It shall also be lawful for the person charged to produce any of the said persons for the purpose of cross-examination.”.
10. Immediately after sub-article (2) of article 550A of the Code there shall be inserted the following new sub-article>
“(3) After the lapse of the period of sixty days referred to in sub-article (1) every interested person may by application request the magistrate to be heard as a witness, or to hear as witnesses the persons indicated in the application. The application shall be served on the Attorney General who may reply within four days.”.
11. Immediately after article 575 of the Code there shall be added the following new article>
“575A. (1) Notwithstanding any other provision of this Title, where a person applying for temporary release from custody under this Title>
(a) is charged with a scheduled offence< and
(b) within the period of ten years immediately preceding the date of the commission of the offence charged,
is shown to the satisfaction of the Court to have been convicted of a scheduled offence,
that person may not, before the lapse of three months from the date of arraignment, be released on bail except in the circumstances provided in sub-article (2).
(2) Within the period of three months mentioned in sub-article (1), the person charged may only be released on bail upon an application to the Criminal Court which shall allow the application only upon being satisfied that there are grave and exceptional reasons which warrant the person’s release. The Court shall in its decision lay down the reasons for rejecting or allowing such application.
(3) Nothing in this article shall preclude the Court from refusing to grant release on bail after the lapse of three months from the date of arraignment if it finds that there are sufficient reasons for it to do so.
(4) For the purposes of this article “scheduled offence”
means any offence listed in the Schedule D to this Code.”.
12. In sub-article (1) of article 604 of the Code, for the words “Probation Officers” there shall be substituted the words “Probation Officers and any other persons of such a description as the Minister responsible for justice may, from time to time, prescribe by Order in the Gazette”.
13. In sub-article (1) of article 605 of the Code, for the words from “The Commissioner of Police” to “the best of their knowledge” there shall be substituted the words “The Commissioner of Police or his representative, a Magistrate, the Attorney General or his representative, the President of the Chamber of Advocates and the President of the Chamber of Legal Procurators shall, twice a year, draw up to the best of their knowledge”.
14. In sub-article (1) of article 606 of the Code, for the words “the names of the common jurors.” there shall be substituted the words “the names of the common jurors>” and immediately thereafter there shall be inserted the following new proviso>
“Provided that the Minister responsible for justice may, by means of an Order in the Gazette, establish different methods of selection based on a computerised mechanism.”.
C 463

Amendment of article 604

of the Code.

Amendment of article 605

of the Code.

Amendment of article 606

of the Code.

C 464

Amendment of article 611

of the Code.

Amendment of article

639 of the Code.

Amendment of article 646 of the Code.

Amendment of article 764

of the Code.

15. In sub-article (2) of article 611, for the words “and the person admitted.” there shall be substituted the words “and the person admitted>” and immediately thereafter there shall be inserted the following new proviso>
“Provided that for the purpose of challenging a juror for cause the Attorney General or the accused may request that the juror be called to reply on oath to questions to be put to the juror to establish the reason for the challenge.”.
16. Sub-article (3) of article 639 shall be substituted by the following>
“(3) Where the only witness against the accused for any offence in any trial by jury is an accomplice, it shall be in the discretion of the Court, after taking into account the character and demeanour of the witness, the nature of the offence and its circumstances and any improper motive which the witness might have which could induce him not to tell the truth, to give a direction to the jury to approach the evidence of the witness with caution before relying on it in order to convict the accused.”.
17. In sub-article (2) of article 646 of the Code, for the words “the provisions of sub-article (8).” there shall be substituted the words “the provisions of sub-article (8)>” and immediately thereafter there shall be inserted the following new proviso>
“Provided further that where the witness is a minor under sixteen years of age and an audio and video-recording of the testimony of the minor is produced in evidence the minor shall not be produced to be examined viva voce unless the Court otherwise directs for a reason which arises after the date of the said testimony of the minor and considered by the Court to be in the interest of the administration of justice and the discovery of the truth.”.
18. Sub-articles (1) and (2) of article 674 shall be substituted by the following>
“(1) Notwithstanding any other provision of this Code or of any other law but subject to the provisions of article 671, where any property which is exhibited in court during the proceedings belongs to a person who is not involved as a principal, an accomplice or a conspirator in the criminal offence which is the subject of such proceedings, that person shall, upon proving in a satisfactory manner his title to the property and satisfying the court that there was no longer any need that the property remains
materially exhibited in the record of the proceedings, be entitled to have such property released in his favour by order of the Court under such terms and conditions as the Court may deem fit, saving, following such release, any right of the person charged or accused or of any other person according to law.
(2) The order referred to in sub-article (1) may be given either on the Court’s own motion or following an application by the person claiming the property. Where the Court acts upon its own motion it shall announce its intention to make such an order by means of a decree. Any such decree or any application made by the person claiming the property in terms of this sub-article shall be served on the Attorney General or on the Commissioner of Police as the case may be, and on the person charged, or accused, each of whom shall be allowed five working days for a reply.”.
19. Immediately after article 697 of the Code there shall be inserted the following new article>
C 465

Addition of new article 698 to the Code.

“Compensation of victims of crime.

698. (1) The Minister may make regulations to establish a scheme for the compensation of victims of crime under such conditions and restrictions and subject to such considerations and qualifications as the Minister may provide and to establish a fund to finance such a scheme.
(2) Without prejudice to the generality of sub- article (1), any scheme established under this article>
(a) may be of general application extending to all crimes or may be limited to such crimes as may be specified in the regulations<
(b) may provide that compensation by Government to the victim shall only be payable when the victim has exhausted all remedies available to him against the offender for the payment of damages suffered by the victim<
(c) may provide for a ceiling on the amount payable to any individual victim or group of victims by way of compensation under the scheme.
(3) The Government shall be subrogated in the rights of the victim against the offender for the payment of any sums received by the victim from the Government in
C 466

Addition of new schedule

to the Code.

Amendment of the Medical and Kindred Professions Ordinance, Cap. 31.

accordance with any scheme established by regulations under this article.”.
20. Immediately after Schedule C of the Code there shall be added the following new schedule >
“Schedule D (Article 575A)
(a) any crime punishable with a maximum term of imprisonment of nine years or more<
(b) the crimes envisaged in articles 198 to 207, 216 (1) (a) (b) (c) and (e), 217, 262(1) (a) and (b), and 263 of this Code (other than unlawful use or consumption of a service)<
(c) any theft committed against any person under the age of twelve years or over the age of sixty years other than the theft of vehicles.”.
21. The Medical and Kindred Professions Ordinance, hereinafter in this article referred to as “the Ordinance”, shall be amended as follows>
(a) in sub-article (7) of article 120A thereof, for the words “or (b)(i).” there shall be substituted the words “or (b)(i)>” and immediately thereafter there shall be inserted the following new provisos>
“Provided that where, in respect of any offence mentioned in this sub-article, after considering all the circumstances of the case including the amount and nature of the drug involved, the character of the person concerned, the number and nature of any previous convictions, including convictions in respect of which an order was made under the Probation Act, the court is of the opinion that the offender intended to consume the drug on the spot with others, the court may decide not to apply the provisions of this sub-article>
Provided further that an offender may only benefit once from the provisions of the above proviso.”< and
(b) in sub-article (1) of article 121E thereof, for the words “receives a request made by a judicial or prosecuting authority” there shall be substituted the words “receives, or is informed about,
a request made by or on behalf of a judicial, prosecuting, law enforcement or other competent authority”.
22. The White Slave Traffic (Suppression) Ordinance shall be amended as follows>
(a) article 2 shall be amended as follows>
(i) in its marginal note, immediately after the words “leave Malta” there shall be added the words “or comes to Malta from elsewhere”<
(ii) in sub-article (1) thereof, immediately after the words “for purposes of prostitution elsewhere” there shall be added the words “or to come to Malta from elsewhere for the purposes of prostitution in these islands”< and in the proviso thereof the words “one to four years” shall be substituted by the words “two to ten years”<
(b) article 3 thereof shall be amended as follows>
(i) in sub-article (1) thereof, immediately after the words “leave Malta” there shall be added the words “or come to Malta”< and immediately after the words “his departure from Malta” there shall be added the words “or arrival in Malta”, and the words “from eighteen months to four years” shall be substituted by the words “from two to five years”<
(ii) in the proviso to sub-article (1), the words “from time to six years” shall be substituted by the words “from three to ten years”< and
(c) in sub-article (2) of article 7 thereof, the words “not more than three months” shall be substituted by the words “not more than six months”,
23. The Dangerous Drugs Ordinance, hereinafter in this article referred to as “the Ordinance”, shall be amended as follows>
(a) in sub-article (9) of article 22 thereof>
(i) for the words “the Probation of Offenders Act” there shall be substituted the words “the Probation Act”< and
C 467

Amendment of the White Slave Traffic (Suppression) Ordinance, Cap. 63.

Amendment of the Dangerous Drugs Ordinance, Cap. 101.

C 468

Amendment of the

Police Act, Cap.

164.

(ii) for the words “of sub-article (2).” there shall be substituted the words “of sub-article (2)>” and immediately thereafter there shall be inserted the following new proviso>
“Provided that where, in respect of any offence mentioned in this sub-article, after considering all the circumstances of the case including the amount and nature of the drug involved, the character of the person concerned, the number and nature of any previous convictions, including convictions in respect of which an order was made under the Probation Act, the court is of the opinion that the offender intended to consume the drug on the spot with others, the court may decide not to apply the provisions of this sub-article>
Provided further that an offender may only benefit once from the provisions of the above proviso.”< and
(b) in sub-article (1) of article 30D thereof, for the words “receives a request made by a judicial or prosecuting authority” there shall be substituted the words “receives, or is informed about, a request made by or on behalf of a judicial, prosecuting, law enforcement or other competent authority”.
24. The Police Act shall be amended as follows>
(a) immediately after sub-article (5) of article 48 thereof, there shall be added the following new sub-articles>
“(6) The Board shall have the power exercisable through its Chairperson –
(a) to summon witnesses who shall be heard on oath<
(b) to administer an oath to any witness and to any person concerned in the investigation of the complaint, and require them to give evidence.
(7) Summonses for attendance of witnesses may be in such form as decided by the Board and shall be signed by the Chairperson or Secretary of the Board.
(8) A summons may be served either by hand or by post. Where it is served by hand it shall be sufficient to prove service by evidence that the summons was left with a person
over the age of sixteen years at the place of residence or of business of the person summoned and if served by post it shall be sufficient to prove service by evidence that the summons was properly addressed and posted.
(9) Any person summoned as aforesaid who refuses, or without sufficient cause fails, to attend at the time and place mentioned in the summons, or refuses without sufficient cause, to answer or to answer fully and satisfactorily, to the best of his knowledge and belief, all questions put to him by or with the concurrence of the Board, or refuses or fails, without sufficient cause, to produce any document he was required to produce by or with the concurrence of the Board, shall be liable on conviction to a fine (multa) not exceeding five hundred liri or to imprisonment not exceeding three months or to both such fine and imprisonment>
Provided that, without prejudice to the generality of the provisions of sub-article (6)(b), no person giving evidence before the Board may be compelled to answer any question which tends to expose him to any criminal prosecution, and every such person shall, in respect of any evidence given by him before the Board be entitled to the same privileges to which a witness giving evidence before a court of law is entitled.
(10) No proceedings shall be commenced in respect of any offence against sub-article (9) without the concurrence of the Attorney General.”< and
(b) immediately after article 49 thereof there shall be added the following new article>
C 469

“Time limit for complaint.

49A. Any complaint to the Board shall be submitted within six months from the date of the occurrence of the incident complained of and the Board may refuse to consider any complaint submitted after such period.”.
25. Article 11 of the Press Act shall be substituted by the following>
“11. Save as otherwise provided in this Act, whosoever shall, by any means mentioned in article 3, libel any person, shall be liable on conviction to a fine (multa).”.

Amendment of the

Press Act, Cap. 248.

C 470

Objects and Reasons

The purpose of this Bill is mainly that of implementing measures to ensure a better and more expeditious administration of justice as outlined in the January 2005
Government White Paper, such as introducing restrictions to the immediate granting of bail to repeat offenders, the payment in criminal proceedings of judicial costs to the State and of damages to the crime victim, the removal of the mandatory requirement of corroboration of the evidence of an accomplice, the elimination of the punishment of imprisonment in criminal libel actions under the Press Act and the removal of mandatory imprisonment in cases of sharing in drug offences.