Issuu

selected essays on

CRIMINAL LAW

selected essays on

Criminal Law

2021 Published by Għaqda Studenti tal-Liġi

Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society. Correspondence in relation to this publication should be forwarded to:

The Publications Officer / The Resources Officer Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@ghsl.org or resources@ghsl.org © Għaqda Studenti tal-Liġi 2021 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher. Proofreading and editing done by the GħSL Publications Office. Opinions expressed in this publication do not necessarily represent the views of Għaqda Studenti tal-Liġi. Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit v

Introduction Criminal law finds itself in a conflicting paradigm in this modern day and

age.

On the one hand the basic principles, as opined by famous jurists such as Carrara, Antolisei, and even the late Professor Anthony Mamo, have remained consistent throughout the decades, and remain as essential today as they were in prior years. These basic doctrines remain essential for any jurist or law student, in understanding the basic concepts of criminal law. On the other hand, the modern evolving nature of criminal justice and the new wave of technological advancements which have changed the very nature of how criminal offences are committed, ensures that these same principles are often facing situations in which their respective authors, notwithstanding how forward looking, could never possibly envision. In this light, this publication seeks to bridge the basic principles of criminal law and its modern day application. One would also note that the conflicting nature of criminal law, both in its adherence to traditional thought, and its applicability in the modern age, is perhaps best exemplified by the varied subject matter being discussed in this publication. I am humbled and privileged to bring you this stand-alone publication. As evidenced by GħSL’s long and illustrious history, found in the large volume of books published during the decades, this organisation has always been on the forefront of academic and legal thought. Following the success of last year’s publication, on Private International Law, we thought there was a need for a new standalone publication reexamining certain subjects related to Criminal Law. I remain forever indebted to all those who contributed to this publication either as a writer, a proofreader, an edit viewer or as a designer. I would like to express my thanks towards Madame Justice Consuelo Scerri Herrera for peer reviewing this publication; Andrew Sciberras, Maegan Grech and David Chetcuti Dimech, for proofreading this publication; and last but not least, Matthew Charles Zammit, for designing this handbook from scratch. vi

Lastly, I must thank you, dear reader, for engaging with this publication as we hope for it to leave another mark on the never-ending timeline behind the constant development of Criminal Law here in Malta.

Valentina Cassar

GħSL Vice-President 2020-21

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Foreword I

t is with great pleasure and honour for me to be asked by the Editorial Board of GħSL to write this forward to the Criminal Law Handbook. I am likewise proud to state that I have been a regular contributor to the works published by GħSL ever since 1984 with my first article written as a student relating to the offence of Calumnious Accusation. I honestly look forward to all the publications issued by GħSL especially those related to my field of Criminal Law and cannot but praise their ardent work. I find it very interesting to be able to read academic work published through GħSL directly related to Malta’s legal framework. Sadly, not much is written in relation to Maltese Criminal Law and therefore this book will certainly be serving as a further basis to educate oneself on such chosen topics. This book can most definitely serve up as an easy reference to students and lawyers alike when researching about a particular subject relating to Criminal law, especially if reference to case law was made. Back in time, it seemed to be a practice that most law students took great pride and satisfaction in presenting their well-researched thesis on a chosen subject for their Doctorate of Laws. In fact, till this date I often go to the Library in court and look up a thesis when I feel the need to delve deeper into a particular section of the law and perhaps also make use of case-law therein mentioned. Though today even this luxury of reading well researched thesis is dwindling, since law students no longer submit thesis’ but dissertations for their undergraduate degree which is not as detailed as a thesis. In fact, the word count is much less. It has always been my passion to read about Criminal law ever since the days when I was a student of the late Professor Guido De Marco. I remember following his lectures with great enthusiasm, since more often than not, he would refer to his past experiences which undoubtedly were explained in great detail. I could almost say that I had witnessed the event he would be discussing. It is perhaps having gone through such wonderful experiences that made me fervor the subject so much.

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Thirty one years have passed since graduating as a lawyer and yet I am still a great enthusiast on the subject and scrupulously follow case law delivered by the domestic courts and that of the European Court of Human Rights. The Criminal Code of Malta has seen a great number of amendments to it, bringing it in line with the Directives issued by the European Union especially from a procedural point of view and such changes have definitely affected the outcome of our case law. It has created a tsunami of conflicting judgments at times also creating legal uncertainty in particular, those judgements relating to the right to legal assistance which was staggered into the domestic law of Malta over a number of years. I am looking forward to this book being published and by individualizing the authors of the different articles, I am sure that their contribution is of high standard since most of them are prominent practicing lawyers. The Criminal Code has gone through a major overhaul with Act III of 2002 and in fact has also touched upon some of the subjects chosen in this book namely the instigation of defilement as evidenced in Article 203A. Other chosen topics such as computer misuse introduced by Act VII of 2010 is an offence which I often come across in my court sittings and thus this article would most defiantly interest me. By Act IX of 2014 the offence of bigamy was also amended so as to include any partner to a civil union contracted or recognized under the Civil Unions Act. I would like to conclude by congratulating the GħSL editorial Board for all the trouble they have taken in publishing this interesting and informative book and cannot wait to dig into the book to start reading. I would also like to send out a clear message to all students that: “The more that you read, the more things you will know. The more that you learn, the more places you’ll go.” – Dr. Seuss

Consuelo Scerri Herrera

Judge Law Courts of Malta

Contents Criminal Responsibility The Theory of Criminal Liability

Chief Justice Emeritus Silvio Camilleri

Vicarious Liability and Corporate Criminal Liability

Dr Joe Giglio

The Crime of Conspiracy

Madame Justice Consuelo Scerri Herrera

Operation of Criminal Law Discussions on Extradition

Dr Chris Soler

Crimes Against Property and the Public Safety Theft, Misappropriation and Fraud - Any Difference?

Madame Justice Consuelo Scerri Herrera

Computer Misuse

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Dr Ezekiel Psaila

Bribery Dr Veronique Dalli

119

Crimes Affecting the Good Order of Families Sexual Offences - An Analysis of the Offence of Rape

127

Dr Charles Mercieca Dr Leonard Caruana

Crimes Against the Administration of Justice Perjury

143

Dr Stephen Tonna Lowell

Contributors

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Project Leader Valentina Cassar

Writers Madame Justice Consuelo Scerri Herrera Chief Justice Emeritus Silvio Camilleri Dr Leonard Caruana Dr Joe Giglio Dr Ezekiel Psaila Dr Stephen Tonna Lowell Dr Chris Soler Dr Veronique Dalli Dr Charles Mercieca

Proof-readers David Chetcuti Dimech Maegan Grech Andrew Sciberras

Publication Designer Matthew Charles Zammit

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