The Role of the Public Prosecutor in relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in relation to the Execution of Sanctions
The Attorney General qua public prosecutor is not directly concerned with the execution of sentences which fall within the competence of the officers of the competent court but the Attorney General does monitor the execution of such sentences as the need may arise.
Prior to delving into an explanation of the actual system used in Malta to ensure compliance with sanctions imposed by a Court of criminal jurisdiction, it would be better to spend a few words on the actual punishments possible under Maltese penal law, to allow a better understanding of the system.
Sanctions or penalties are divided into two categories – those originating from the Criminal Code and those originating from the Probation Act, Chapter 446 of the Laws of Malta.
The Maltese Criminal Code sets forth a bi-partisan system of offences, distinguishing between crimes and contraventions. As a result of this distinction the same Code creates different punishments to which crimes and contraventions are subject.
Crimes are liable to the punishment of:
- imprisonment
- solitary confinement
- interdiction
- fine (Multa).
Contraventions are liable to the punishment of:
- detention
- fine (Ammenda)
- reprimand or admonition.
Nevertheless, it has to be pointed out at the outset, that in the case of crimes and contraventions set forth by special legislation, the punishments afforded to these may vary slight from the above list as specifically mentioned in the same legislation.
The Criminal Code also sets forth by means of sect. 28A the application of a suspended sentence of imprisonment. Furthermore sect. 28G allows the Court to issue a suspended sentence supervision order.
The Probation Act, Chapter 446 sets forth the following type of punishments:
- probation order
- community service order
- combination order
- absolute or conditional discharge
Upon a Court declaring the finding of guilt of the accused or person charged, the same Court stipulates the punishment that is to be imposed on such individual. The enforcement of each punishment shall now be seen.
Imprisonment, Solitary Confinement and Detention: the Court issues an order to be served on the Director of Correctional Services stipulating the time that individual is to serve. From the moment that the guilty party is handed over to the Director of Correctional Services, the responsibility to ensure the compliance with this judgment by the guilty party rests on this Director. The Department of Correctional Services, being a government department entrusted with the running of Correctional Institutions, consults on a regular basis with the Office of the Attorney General on any issue that may be affecting the smooth running of this department and any inmate held in its custody. Reason being that the Attorney General is also the chief legal counsel to government.
Interdiction: the Court upon ordering the application of this punishment and also upon ordering the discontinuance thereof must publish these orders in the Government Gazette. This punishment can either be of a general nature or of a special nature. General interdiction disqualifies the person sentenced from any public office or employment, generally, whilst special interdiction disqualifies the person sentenced from holding some particular public office or employment, or from the exercise of a particular profession, art, trade, or right, according to the law in each particular case. Although no particular entity has been specifically entrusted with the actual ensuring of compliance with this punishment, one may safely opine that, this burden is put on all members of society. Reason being that the concept of ‘name and shame’ is alien to the Maltese penal system, thus by way of elimination this is the most plausible reason that can be utilised to explain the legislators’ intention in obliging the Court to publish such orders in the Government Gazette.
Fine (Multa/Ammenda): the Courts can impose this punishment only in cases were this type of punishment is specifically so mentioned. A person sentenced to a fine (ammenda or multa) is obliged to pay the fine immediately. Nevertheless the Court may, for a reason to be recorded, order that the person sentenced shall pay the fine to the Registrar of Courts within such period as the Court in passing sentence has directed. The obligation to ensure that this fine is paid immediately or within the stipulated timeframe rests solely with the Registrar of Courts. In cases of default of payment of the fine (multa or ammenda) within the time laid down by the Court in its sentence or, failing a timelimit in the sentence, within the time of one week from the date of the sentence, the said fine is converted forthwith into imprisonment or detention as provided in articles 11 and 13 of the Criminal Code. Upon the automatic conversion of the fine to imprisonment or detention, the obligation to ensure compliance and actual execution of this term of imprisonment or detention is shifted onto the Police, who must then proceed to arrest the person sentenced and escort him to the place designated according to law for the confinement of persons sentenced to a fine convertible into imprisonment or detention.
Reprimand or admonition: the reprimand or admonition is made in open Court by the judge or magistrate who tried the offence immediately upon passing sentence.
Suspended Sentence of Imprisonment: a Court which passes a sentence of imprisonment for a term of not more than two years for an offence may order, that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than four years from the date of the order, the offender commits another offence punishable with imprisonment. Should thereafter a Court competent to determine this newer offence attribute guilt to the person charged or accused, then the original sentence takes effect. The authority responsible to ensure compliance with this punishment is not specifically mentioned by the Criminal Code. Nevertheless, since the investigation of all offences lies with the Police, it is in practice the Police who monitor the application of this punishment. In practice this is done in the following manner. Should during the actual investigation of an offence, the Police identify a particular person with having committed this offence, the Police due to the fact that they are in possession of all criminal records, can readily ascertain whether such individual is serving a suspended sentence of imprisonment. Should it so transpire, the Police being the principal authority responsible for charging individuals, (apart from the cases previously mentioned), shall also charge this individual with having violated a suspended sentence of imprisonment, and ask the Court hearing this new case against this individual, to order the actual serving of this term of imprisonment.
Suspended Sentence Supervision Order: the Court may, upon its application of a suspended sentence of imprisonment, (where the sentence suspended is of more than six months imprisonment), the Court may in addition make a suspended sentence supervision order, (also known as ‘a supervision order’). This in practice sees the offender being placed under the supervision of a supervising officer, who is an employee of the Department of Probation Services known as a probation officer. This supervision is to be made for a period specified in the order. If at any time while the supervision order is in force it appears to the Court that made the order, on the written report of the supervising officer, that the offender has failed to comply with any of the requirements mentioned in the supervision order, the offender is taken before that same Court and if the Court, after hearing the offender, is satisfied that such failure has occurred, it may either in serious or repeated cases order that the suspended sentence passed in the proceedings in which the supervision order was made shall have effect immediately or, without prejudice to the continuation of the order, impose on him a fine (ammenda) not exceeding one hundred liri.
The following sanctions are set forth by the Probation Act and the obligation to ensure compliance with them by the offender rests solely with the Probation Officer entrusted by the Director of Probation services with each particular case. These officers are specifically so trained and are employed by the Department of Probation Services. In certain situations, though, such as when this individual commits another offence, the Police play a fundamental role in informing the Court of this matter, as occurs, in the case of a breach of a suspended sentence.
The Department of Probation Services, being a government department entrusted with the application and enforcement of the provisions of the Probation Act, consults on a regular basis with the Office of the Attorney General on any issue that may be affecting the smooth running of this depart-ment and any offender under its care and/or supervision. Reason being that the Attorney General is also the chief legal counsel to government
The major difference that exists between the following sanctions and the punishments set forth in the Criminal Code, lies in the fact that a conviction for an offence, for which one of the following order is made under the Probation Act, cannot be deemed to be a conviction for any purpose whatsoever other than:
- the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under this Act and
- in the case of a public officer, the purposes or any disciplinary proceedings which may be taken against him or any disciplinary punishment which may be imposed upon, such public officer in consequence of any such conviction or of any of the facts constituting the offence
Probation Order: a Court may, instead of sentencing the offender, make a probation order, i.e. an order requiring the offender to be under the supervision of a probation officer for a period to be specified in the order of not less than one year and not more than three years. The reasons that must cumulatively exist for the Court to issue such an order are the following:
- the offender is convicted of an offence, not being an offence punishable only with a fine (multa or ammenda), and not being an offence which apart from any increase of punishment in view of continuity or of previous convictions, which is punishable with imprisonment for a term not exceeding seven years and
- the Court is satisfied that the supervision of the offender by a probation officer is desirable in the interest of securing the rehabilitation of the offender and, or protecting the public from harm from the offender or preventing the commission of further offences and
- having regard to the circumstances of the case, including the nature of the offence and the character of the offender, the issue of such order is appropriate.
If the offender fails to comply with this order and/or any instructions given to him by the probation officer, or commits another offence, the offender will be liable to be sentenced for the original offence. In case of failure to comply with the order or instructions given to him by the probation officer, this latter officer is duty bound to inform the Court of this situation. Should this indi-vidual commit another offence, the Police play a fundamental role in informing the Court of this matter as occurs in the case of breach of a suspended sentence.
Community Service Order: this order may only be applied in respect of an offender aged sixteen years and over, convicted of an offence for which, in the opinion of the Court, the appropriate sentence would be one of imprisonment. Such an offence must not be punishable only by a fine (multa or am-menda) and cannot be an offence, which apart from any increase in punishment in view of the continuity or of previous convictions, is punishable with imprisonment exceeding seven years. This order requires the offender to perform unpaid work for a number of hours as specified in the order, which order requires the offender to perform a minimum of forty hours of work and a maximum of two hundred and forty hours. The Court prior to the actual issuing of this order must ensure that the following conditions have been met:
- after considering the offender’s circumstances and the presentencing report, that the offender is suitable to perform work under such an order;
- that arrangements can be made for such work;
- the offender has agreed to the order; and
- the offender has signed the community service work agreement form.
Combination Order: the Court may, instead of sentencing the offender to imprisonment, order the offender to be placed on a combination order i.e. placing the offender under probation supervision and perform a community service order. Nevertheless, the community service order, in this case, cannot be made for a period exceeding forty hours of work and no more than one hundred hours. The requirements to be met with respect to both the probation order and the community service order have to be met prior to the actual issuing of this Order.
Absolute or Conditional Discharge: where a Court by which a person is convicted of an offence (not being an offence punishable only be a fine (multa or ammenda) and not being an offence which apart from an increase of punishment in view of continuity or previous convictions, is punishable with imprisonment for a term exceeding seven years) is of opinion that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment and that a probation order, a community service order or a combination order are not appropriate, the Court may make an order discharging the offender absolutely, or, if the Court thinks fit, discharging the offender subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified therein. Should the offender commit another offence during the period of conditional discharge, the offender will be liable to be sentenced for the original offence.
The Role of the Public Prosecutor in relation to the Execution of Sanctions
The Attorney General qua public prosecutor is not directly concerned with the execution of sentences which fall within the competence of the officers of the competent court but the Attorney General does monitor the execution of such sentences as the need may arise.
Prior to delving into an explanation of the actual system used in Malta to ensure compliance with sanctions imposed by a Court of criminal jurisdiction, it would be better to spend a few words on the actual punishments possible under Maltese penal law, to allow a better understanding of the system.
Sanctions or penalties are divided into two categories – those originating from the Criminal Code and those originating from the Probation Act, Chapter 446 of the Laws of Malta.
The Maltese Criminal Code sets forth a bi-partisan system of offences, distinguishing between crimes and contraventions. As a result of this distinction the same Code creates different punishments to which crimes and contraventions are subject.
Crimes are liable to the punishment of:
- imprisonment
- solitary confinement
- interdiction
- fine (Multa).
Contraventions are liable to the punishment of:
- detention
- fine (Ammenda)
- reprimand or admonition.
Nevertheless, it has to be pointed out at the outset, that in the case of crimes and contraventions set forth by special legislation, the punishments afforded to these may vary slight from the above list as specifically mentioned in the same legislation.
The Criminal Code also sets forth by means of sect. 28A the application of a suspended sentence of imprisonment. Furthermore sect. 28G allows the Court to issue a suspended sentence supervision order.
The Probation Act, Chapter 446 sets forth the following type of punishments:
- probation order
- community service order
- combination order
- absolute or conditional discharge
Upon a Court declaring the finding of guilt of the accused or person charged, the same Court stipulates the punishment that is to be imposed on such individual. The enforcement of each punishment shall now be seen.
Imprisonment, Solitary Confinement and Detention: the Court issues an order to be served on the Director of Correctional Services stipulating the time that individual is to serve. From the moment that the guilty party is handed over to the Director of Correctional Services, the responsibility to ensure the compliance with this judgment by the guilty party rests on this Director. The Department of Correctional Services, being a government department entrusted with the running of Correctional Institutions, consults on a regular basis with the Office of the Attorney General on any issue that may be affecting the smooth running of this department and any inmate held in its custody. Reason being that the Attorney General is also the chief legal counsel to government.
Interdiction: the Court upon ordering the application of this punishment and also upon ordering the discontinuance thereof must publish these orders in the Government Gazette. This punishment can either be of a general nature or of a special nature. General interdiction disqualifies the person sentenced from any public office or employment, generally, whilst special interdiction disqualifies the person sentenced from holding some particular public office or employment, or from the exercise of a particular profession, art, trade, or right, according to the law in each particular case. Although no particular entity has been specifically entrusted with the actual ensuring of compliance with this punishment, one may safely opine that, this burden is put on all members of society. Reason being that the concept of ‘name and shame’ is alien to the Maltese penal system, thus by way of elimination this is the most plausible reason that can be utilised to explain the legislators’ intention in obliging the Court to publish such orders in the Government Gazette.
Fine (Multa/Ammenda): the Courts can impose this punishment only in cases were this type of punishment is specifically so mentioned. A person sentenced to a fine (ammenda or multa) is obliged to pay the fine immediately. Nevertheless the Court may, for a reason to be recorded, order that the person sentenced shall pay the fine to the Registrar of Courts within such period as the Court in passing sentence has directed. The obligation to ensure that this fine is paid immediately or within the stipulated timeframe rests solely with the Registrar of Courts. In cases of default of payment of the fine (multa or ammenda) within the time laid down by the Court in its sentence or, failing a timelimit in the sentence, within the time of one week from the date of the sentence, the said fine is converted forthwith into imprisonment or detention as provided in articles 11 and 13 of the Criminal Code. Upon the automatic conversion of the fine to imprisonment or detention, the obligation to ensure compliance and actual execution of this term of imprisonment or detention is shifted onto the Police, who must then proceed to arrest the person sentenced and escort him to the place designated according to law for the confinement of persons sentenced to a fine convertible into imprisonment or detention.
Reprimand or admonition: the reprimand or admonition is made in open Court by the judge or magistrate who tried the offence immediately upon passing sentence.
Suspended Sentence of Imprisonment: a Court which passes a sentence of imprisonment for a term of not more than two years for an offence may order, that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than four years from the date of the order, the offender commits another offence punishable with imprisonment. Should thereafter a Court competent to determine this newer offence attribute guilt to the person charged or accused, then the original sentence takes effect. The authority responsible to ensure compliance with this punishment is not specifically mentioned by the Criminal Code. Nevertheless, since the investigation of all offences lies with the Police, it is in practice the Police who monitor the application of this punishment. In practice this is done in the following manner. Should during the actual investigation of an offence, the Police identify a particular person with having committed this offence, the Police due to the fact that they are in possession of all criminal records, can readily ascertain whether such individual is serving a suspended sentence of imprisonment. Should it so transpire, the Police being the principal authority responsible for charging individuals, (apart from the cases previously mentioned), shall also charge this individual with having violated a suspended sentence of imprisonment, and ask the Court hearing this new case against this individual, to order the actual serving of this term of imprisonment.
Suspended Sentence Supervision Order: the Court may, upon its application of a suspended sentence of imprisonment, (where the sentence suspended is of more than six months imprisonment), the Court may in addition make a suspended sentence supervision order, (also known as ‘a supervision order’). This in practice sees the offender being placed under the supervision of a supervising officer, who is an employee of the Department of Probation Services known as a probation officer. This supervision is to be made for a period specified in the order. If at any time while the supervision order is in force it appears to the Court that made the order, on the written report of the supervising officer, that the offender has failed to comply with any of the requirements mentioned in the supervision order, the offender is taken before that same Court and if the Court, after hearing the offender, is satisfied that such failure has occurred, it may either in serious or repeated cases order that the suspended sentence passed in the proceedings in which the supervision order was made shall have effect immediately or, without prejudice to the continuation of the order, impose on him a fine (ammenda) not exceeding one hundred liri.
The following sanctions are set forth by the Probation Act and the obligation to ensure compliance with them by the offender rests solely with the Probation Officer entrusted by the Director of Probation services with each particular case. These officers are specifically so trained and are employed by the Department of Probation Services. In certain situations, though, such as when this individual commits another offence, the Police play a fundamental role in informing the Court of this matter, as occurs, in the case of a breach of a suspended sentence.
The Department of Probation Services, being a government department entrusted with the application and enforcement of the provisions of the Probation Act, consults on a regular basis with the Office of the Attorney General on any issue that may be affecting the smooth running of this depart-ment and any offender under its care and/or supervision. Reason being that the Attorney General is also the chief legal counsel to government
The major difference that exists between the following sanctions and the punishments set forth in the Criminal Code, lies in the fact that a conviction for an offence, for which one of the following order is made under the Probation Act, cannot be deemed to be a conviction for any purpose whatsoever other than:
- the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under this Act and
- in the case of a public officer, the purposes or any disciplinary proceedings which may be taken against him or any disciplinary punishment which may be imposed upon, such public officer in consequence of any such conviction or of any of the facts constituting the offence
Probation Order: a Court may, instead of sentencing the offender, make a probation order, i.e. an order requiring the offender to be under the supervision of a probation officer for a period to be specified in the order of not less than one year and not more than three years. The reasons that must cumulatively exist for the Court to issue such an order are the following:
- the offender is convicted of an offence, not being an offence punishable only with a fine (multa or ammenda), and not being an offence which apart from any increase of punishment in view of continuity or of previous convictions, which is punishable with imprisonment for a term not exceeding seven years and
- the Court is satisfied that the supervision of the offender by a probation officer is desirable in the interest of securing the rehabilitation of the offender and, or protecting the public from harm from the offender or preventing the commission of further offences and
- having regard to the circumstances of the case, including the nature of the offence and the character of the offender, the issue of such order is appropriate.
If the offender fails to comply with this order and/or any instructions given to him by the probation officer, or commits another offence, the offender will be liable to be sentenced for the original offence. In case of failure to comply with the order or instructions given to him by the probation officer, this latter officer is duty bound to inform the Court of this situation. Should this indi-vidual commit another offence, the Police play a fundamental role in informing the Court of this matter as occurs in the case of breach of a suspended sentence.
Community Service Order: this order may only be applied in respect of an offender aged sixteen years and over, convicted of an offence for which, in the opinion of the Court, the appropriate sentence would be one of imprisonment. Such an offence must not be punishable only by a fine (multa or am-menda) and cannot be an offence, which apart from any increase in punishment in view of the continuity or of previous convictions, is punishable with imprisonment exceeding seven years. This order requires the offender to perform unpaid work for a number of hours as specified in the order, which order requires the offender to perform a minimum of forty hours of work and a maximum of two hundred and forty hours. The Court prior to the actual issuing of this order must ensure that the following conditions have been met:
- after considering the offender’s circumstances and the presentencing report, that the offender is suitable to perform work under such an order;
- that arrangements can be made for such work;
- the offender has agreed to the order; and
- the offender has signed the community service work agreement form.
Combination Order: the Court may, instead of sentencing the offender to imprisonment, order the offender to be placed on a combination order i.e. placing the offender under probation supervision and perform a community service order. Nevertheless, the community service order, in this case, cannot be made for a period exceeding forty hours of work and no more than one hundred hours. The requirements to be met with respect to both the probation order and the community service order have to be met prior to the actual issuing of this Order.
Absolute or Conditional Discharge: where a Court by which a person is convicted of an offence (not being an offence punishable only be a fine (multa or ammenda) and not being an offence which apart from an increase of punishment in view of continuity or previous convictions, is punishable with imprisonment for a term exceeding seven years) is of opinion that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment and that a probation order, a community service order or a combination order are not appropriate, the Court may make an order discharging the offender absolutely, or, if the Court thinks fit, discharging the offender subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified therein. Should the offender commit another offence during the period of conditional discharge, the offender will be liable to be sentenced for the original offence.
