Recidivism : a comparative analysis

Abstract

Locating and identifying the notion of recidivism in bygone days is of utmost importance, in a quest to understand the current legal position portrayed. In tracking down the notion's own origins and early stages, the reader views the pattern of developments which ultimately pave the way for the existing present position. Thus Chapter 1 sets out to do rightly this - tracing recidivism within the ages. Primarily, it will be seen that focus fell upon specific relapse or 'recidiva vera e propria'. Chapter 2 delineates the current Maltese legal position relating to recidivism. A subsequent offence (even if theoffence is different in kind from the previous offence1), can only lead to the qualification of the status of recidivist if it is preceded by a previous conviction, which emanates from a final and absolute judgement. Moreover the previous punishment awarded need not have been served, to lead to recidivism. This remains true to say only within the terms of the 'sistema della temporaneita' which provides that an increase in punishment due to recidivism is admissible solely within a specified interval of time, after which it will not arise. The court's discretionary power is pivotal in its evaluation of awarding the appropriate increase of punishment. Chapter 3 studies foreign legal positions, in view of a possible future harmonization of laws within the E.U. as urged in the Recommendation of the Council of Europe n. R(92) 17 19th October 1992. In the future as in the past, knowledge of foreign provisions will aid legislators vis-a-vis possible reform as was the case of the Commissioners of the Maltese 1836 Draft Code. Additionally future legislators learn from past failed legislative efforts. Chapter 4 debates the compatibility of 'ne bis in idem.' with recidivism. ultimately finding Police vs. Karmnu Ellul2to be a milestone case. Chapter 5 evaluates and criticises the current law leading to the formulation of Chapter 6' s proposals as well as uncovering new challenges. The absence of recognition of foreign judgements within the Maltese penal system has been identified as one of the main deficiencies in the system vis-a-vis recidivism. One of the proposals suggests seeing to this deficiency. The concluding remarks take into consideration all that has been said in this thesis with particular emphasis on Malta. Thus this thesis tackles the past, present and future of the notion of recidivism.