Some procedural innovations envisaged in the White Paper on amendments to the Criminal Code (Oct'2000)

Abstract

My thesis focuses on a few important procedural innovations, which have been proposed in the White Paper, 'Il-Glieda kontra il-Kriminalita bis-sahha tal Ligi. ' I will be dealing with the following procedural innovations: 1) The present article 413 of the Criminal Code deals with appeals from judgments of the Court of Magistrates as a Court of Criminal Judicature. Over the years the right of appeal of the Attorney General has been constantly widened. The White Paper is proposing to overhaul this article in order to introduce a new procedure giving the Attorney General a general right of appeal. What are the difficulties, which may arise from such a procedural innovation? Was such an innovation required? 2) The White Paper is also proposing to give the Attorney General a limited right of appeal from judgments in a trial by jury, but only against the leniency of the sentence. What are the implications of such procedural innovation? 3) Article 137 deals with the notion of habeas corpus (i.e. a writ used to determine whether a person's detention is lawful or not). Following three judgments delivered by the European Court of Human Rights against the Government of Malta, a new article is being proposed, to replace the existing article 137, in order to put the issue beyond doubt. However, the White Paper has not stopped here. The legislator has also provided for specific articles dealing with the issue of unlawful detention whenever such issue is raised, i.e. be it before the Court of Magistrates, the criminal Court or Court of Criminal Appeal. In this Chapter I will analyze the position obtaining in our Criminal Code before the proposed amendments. Did the remedy of habeas corpus exist before? What is the problem, which the new article wanted to solve? Is there a distinction between bail and habeas corpus? The White Paper purports to broach a discussion on the question of plea bargaining. To date, although plea-bargaining is generally accepted and has become part of our criminal justice system, it is not regulated by the Criminal Code. Should this current state of affairs persist?