For the purposes of the employment of private guards and community officers, the Police Commissioner cannot simply bar an ex-convict from obtaining a licence to provide such services without adequately considering the gravity of the offence and whether or not the person has been rehabilitated.
This was held by the Administrative Review Tribunal presided by Magistrate Charmaine Galea on the 1st of April 2019 in the case of Tarcisio Agius vs Commissioner of Police.
The Tribunal heard the claims by the plaintiff wherein it was explained that he applied for a licence in order to be able to work as a private guard.
It was furthermore stated that he had received notice that his application had been declined by the Commissioner on the basis of Article 10 of the Private Guards and Community Officers Act, concerning the refusal to issue a licence on the basis of a serious former criminal conviction and where the application goes against the public interest.
The Tribunal heard how the plaintiff had previously been found guilty of being involved in the running of an establishment that was frequented by persons engaging in prostitution and other immoral offences.
It was claimed that the refusal to issue a licence on the basis of his previous criminal record was unjust.
The Tribunal also heard the testimony of a number of individuals, who addressed the Tribunal in their official capacities and who confirmed that the former convict had been rehabilitated since leaving prison.
The Tribunal heard how both in and outside of prison, the plaintiff had engaged in voluntary work and even participated in a programme aimed at preventing persons from falling into a life of crime.
The Tribunal also considered the defence council’s reasoning for the Commissioner’s actions, which were claimed to be based both on law and on fact.
It was stated that the law places a responsibility on the Commissioner to refuse to issue a licence should the applicant have been convicted of a serious crime and in consideration of the impact that this would have on the public.
It was, therefore, felt that the nature of the plaintiff’s crimes warranted that his application be refused.
In considering whether or not the decision was justified, the Tribunal held that the law imposes on the Commissioner the responsibility to objectively examine whether or not an offence was truly serious in nature.
In order to do this, the Tribunal stated that the law itself establishes grievous crimes from others by imposing a heavier punishment on some offences than on others.
It was held that the crime that the plaintiff was convicted of, which is a crime that today falls within the original competence of the Court of Magistrates, carries a maximum penalty that can be identical to that of an offence of a very light wound.
The Tribunal maintained that although every crime can subjectively be seen to be serious in nature, it is the Commissioner’s responsibility to be reasonable when applying the provisions of the law.
The Tribunal also held that it is clear that the plaintiff is not a danger to society at large and that it was unjust for the Commissioner to base his decision solely on the fact that the plaintiff had a criminal record.
For this reason, the Tribunal declared the decision to be annulled and reversed, although it was held that this did not mean that the Commissioner could be ordered to issue the licence.
Alternatively, the Commissioner was ordered to revise the decision and to pay all legal costs.
Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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