The notion of aggravation in theft in Maltese law

Abstract

Aggravated theft is one of the topics in Maltese Criminal law which appears to have undergone the best process of development and modernisation. It has retained very much the same notion as it originally had when the Criminal Code was promulgated and has not taken on the newer and more sophisticated connotations that the notion of aggravated theft has in Italy. The reason for this is probably two-fold. In the first place, English law which is so much followed in Malta in Criminal law is totally alien to the notion of aggravated theft as understood in Maltese law. In fact the English law of theft knows of no aggravated theft as such and only qualifies the ordinary theft with the concepts of burglary, aggravated burglary, robbery and so on. It contains however no system of aggravations as is contained in Italian or Maltese law, as a consequence of which the large mass of English books on Criminal law and on theft in particular are of little use to the Maltese lawyer and judicature, dealing with the notion of aggravated theft, and in fact the only reference to books which is made, is made to the works of the Italian writers. Moreover the new Italian Penal Code has completely revolutionised the concept of aggravated theft so that reference to the Italian books must be made to pre-1930 editions, since the old law was similar to ours, and thus the new concepts of the newer Italian writers have not been taken up in Maltese law. On the other hand, the trial by jury of all cases of aggravated theft (since an aggravated theft always came - until the recent amendments - within the sphere of jurisdiction of the Criminal Court) has left unrecorded the discussion on the nature and requisites of the aggravations. Trial by jury necessitates of its nature a much lengthier discussion on the material facts of the offence rather than on its legal connotations, since it is the jury's verdict on the facts which is of the essence in a successful defence or prosecution. Moreover what discussion there might be as regards the nature of the aggravations of theft is an oral one, and unless one were to look up the transcriptions of the speeches of the lawyers involved, it is impossible to trace any reference to the subject prior to 1967.