Justice | Suspended sentences 'rampant'

Kevin Ellul, 27, was jailed for three years, suspended for three, while his license was revoked for one year. The family of Emmanuel Formosa (the victim) has expressed their concern for the sentence, which, in their opinion, was too lenient.

A criminologist, who wishes to remain anonymous, agrees that the use of suspended sentences in the courtroom is a hot topic, claiming that they are given according to the magistrate and lawyer in question.

Though a suspended sentence should be given only if the crime committed is not a serious one and the risk of re-offending is small, she claims that it is more dependent on the money thrown at the lawyers taking the case. In other words, the richer the criminal, the more likely he is to receive a suspended sentence. Some people are given a suspended sentence over and over again while others are immediately sentenced and imprisoned.

She adds that because the prosecution is normally a police officer – though there are a handful of legally-qualified police officers – most of them do not have the legal expertise of the defence lawyers, putting them at a disadvantage when attempting to get the maximum sentence for an offender of the law.

Labour spokesperson for Justice Dr Jose Herrera says as a general rule, our courts are indeed applying the law as intended and in a just and equitable fashion. However, he agrees that there are instances in this regard when the courts would appear too lenient and such instances do give rise to a hue and cry, as seems to have happened the case of Formosa’s family.

“This notwithstanding, however, we cannot generalise, and justice must be made in a subjective way in every single case. There might be mitigating factors, which the general public might not appreciate.

“There are however cases where the law will be wrongly applied. However in our system today the Attorney General always has the right to appeal. Here if mistakes were made, they can be rectified.”

Criminal lawyer Gavin Gulia points out that suspended sentences suffer from a problem of perception, and that uniformity in this regard is impossible.

“Judging court judgments at face value can only lead to misguided conclusions. When delivering judgment, the court takes into consideration not only the question of responsibility but also, where it finds fault or guilt, what punishment would be appropriate in the particular circumstances of the case and of the accused.”

The reasons for handing down a suspended sentence differ from case to case.

“It is very difficult to provide uniformity and frankly I don’t think its possible.”

Criminal lawyer Franco Debono says that suspended sentences are handed down due to various circumstances, including the nature of the crime, the character and possibility of reform of the convicted person, whether it was a first offence and other considerations, which vary from case to case.

“Once a person is found guilty then it is up to the court to calibrate a just punishment, having regard to various considerations which emerge from the trial. However I think it is high time we have, as in other jurisdictions, a sentencing policy.”

Another issue that shows a number of inconsistencies is that of the awarding of bail. Bail is awarded to the accused awaiting trial against monetary security. However, according to the criminologist, this also depends on the lawyer defending the case and how much money he is being paid.

Bail is not usually granted to foreigners as they pose a certain flight risk, even more so if they come from open centres. This is putting increasing pressure on the local prisons, where population is at an all time high of 547 inmates, more than double the population ten years ago, which was 230 in 1999. 

Of the present population, 40% of inmates are foreign, with more than 61% of those hailing from the African continent. Most African inmates are serving six-month sentences after being caught residing in Malta illegally.

Dr Herrera is critical of the court’s reluctance to grant bail in certain cases, saying that he strongly believes that every person should have the right to bail in accordance with our constitution and the European Convention of Human Rights.

“The underlying principle of our criminal law is the presumption of innocence. Therefore if an accused person is kept under preventative custody, this presumption is lost.”

He says that the court appears contradictory when denying bail in minor cases while freely granting bail in more serious ones.

“Our constitutional court and the European Court of Human Rights have had various occasions to censor our courts for their failure to uphold the right to bail which is entrenched in our supreme law.”

Dr Debono agrees with Dr Herrera, echoing his views on the granting of bail and campaigning for uniformity in this area.

“The spirit of the law, which, unfortunately, in my experience, is not always observed by our courts, is that arrest should be the exception, and it should be only ordered where there exist manifest and founded dangers to the administration of justice in the particular case, and also if the accused does not furnish sufficient guarantees.”

Another matter Dr Debono is concerned about is the ability of the police to arraign under arrest. Bail is only an issue when the accused is arraigned under arrest. If arraignment takes place in any other method – for example by summons – then bail is not an issue, as the accused can go home between hearings. As the law stands, if the original arrest is deemed to be legal, then arraignment under arrest is also legal and bail becomes an issue. This gives the police wide discretionary powers that may be abused.

“In my opinion the validity of the original arrest does not necessarily entail the justification of arraignment under arrest, since the police have other options at their disposal.”