Posted Friday, April 06, 2018
Attorney General’s newest procedural right to appeal to find retroactive application

The amendments to Article 500, which were done by Act IV of 2014 and Act VIII of 2015, granting a procedural right of appeal to the Attorney General in criminal cases shall have retroactive application. This was decreed by the Court of Criminal Appeal (Superior) in the case of The Republic of Malta vs Allan Grech.

The defendant was found guilty of willful homicide and unlawful possession of a sharp knife which he used to murder the victim during an argument in February 2010. That year, a trial by jury found him guilty of breaching the limitations of lawful self-defence and unlawful possession of a weapon, with the Courts sentencing him to six years in prison. The Attorney General pleaded with the Court to reverse and change the sentence in order to rid the defendant of any excusability before the law and to impose a more grave sentence in this regard, claiming that there had been a miscarriage of justice.

Article 500 (3) and (4) allow for the institution of an appeal by the Attorney General to the Criminal Court to reverse and change a sentence given in cases which have been formerly decided by a trial by jury, where the judgement is clearly the result of a manifest misinterpretation or of a manifestly wrong application of the law, which could have had a bearing on the verdict.The defence held that an appeal by the Court in order to reverse the findings by a jury would constitute a breach of the principle of non-retroactivity of law in criminal matters since the trial by jury was held in 2010 while the amendments came later.

The Court explained that the principle of non-retroactivity, found in both Article 39 of the Constitution and Article 7 of the European Convention, emanate from the principle of “nullum crimen, nulla poena sina lege” which means that no action can be punished unless the law states that it is indeed a crime. The principle of non-retroactivity is meant to therefore protect individuals from being accused of a committing a criminal action which was not illegal at the time of its commission. The principle therefore applies to substantive criminal law and means that individuals should have the right to access the law in order to know what actions are criminal in nature, and to not be punished for actions which are were not illegal when they were committed. It was held that the rights of the defendant were therefore not at stake in this case.

The Court explained that procedural criminal law has effective and immediate application, meaning that the procedures become effective even to proceedings that were ongoing before the new procedures were in place. The Court held that Article 500 (3) and (4) are not related to substantive criminal law nor did they  breach the fundamental right of the defendant to foreseeability of the grave criminal nature of his crimes. For this reason, the Court dismissed the argument by the defendant that the plaintiffs’ right to appeal could not apply in this case. The judgement was delivered by Hon. Judge Joseph Zammit Mc Keon acting as Agent President, Hon. Judge Abigail Lofaro and Hon. Judge Edwina Grima. 

 

Dr. Malcolm Mifsud

Partner 

Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today.  

 

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