New guidelines will help structure Attorney General’s discretion

New amendments to the Criminal Code are set to provide “exhaustive” guidelines that will structure the Attorney General’s discretion on criminal cases.

The AG enjoys the power to decide whether drug cases, among others, should be heard before the Magistrates’ Court or face a Judge.

According to legal practitioners, the AG usually looks at the quantity of drugs the accused has been charged with trafficking. If the accused was caught with over 300 grams of drugs, then he or she will most probably appear before the superior court.

“It is an unwritten rule,” the practitioners said.

The Bill will be published today.

According to Justice Minister Owen Bonnici, the proposed amendments to the Criminal Code will also give the accused the right to appeal the Attorney General’s discretion.

“The Bill stipulates the guidelines that will structure the Attorney General’s discretion. The guidelines are exhaustive. It also gives the accused the right to appeal the AG’s decision at the end of the compilation of evidence,” Bonnici told MaltaToday.

The Judge will also have the power to hand down a lower sentence if he feels that the accused should have faced a magistrate’s court.

The AG’s discretion has been found to be in breach of fundamental human rights and multiple court cases have confirmed the breach of Articles 6 and 7 of the European Convention of Human Rights.

The AG’s discretion effectively means that two individuals who committed the same crime can be given different sentences and jail terms, depending on which court is handing down the judgement.

Before a judge, the accused can face a minimum prison term of 10 years, the maximum term before the Magistrates’ Court.

“The AG will be duty-bound to take into consideration the guidelines before deciding whether a case should be heard by the lower or the superior courts. This includes the role played by the accused in the crime and the indicative quantity of the drug,” Bonnici explained.

He also pointed out that, currently, the AG’s decision cannot be appealed or revised by the courts.

In the case Camilleri vs Malta, decided in January 2013, the European Court of Human Rights ruled a breach of Article 7 of the European Convention on Human Rights.

The applicant complained that the discretion of the public prosecutor to decide which court an accused may be brought to trial in and consequently which punishment would be applicable was contrary to the impartiality requirement of Article 6.

In 2003, the applicant was charged with having been in possession of 953 pills of ecstasy, in December 2001, not for his exclusive use. The prosecutor decided to try the applicant in the Criminal Court. Following a trial by jury, the applicant was found guilty and sentenced to 15 years’ imprisonment and fined €35,000.