Bail system under scrutiny

The first was the decision (subsequently revoked) to grant bail to 48-year-old Vince Muscat: one of the main suspects in last June’s daring HSBC heist in Qormi, during which some 60 rounds of bullets were fired in the direction of the police.

Muscat stands accused of the attempted murder of two police officers, on top of aggravated armed robbery, and to compound matters, he supplied no fixed address.

Nonetheless, he was granted released on bail against a deposit of €5,000 and a personal guarantee of €15,000.

The second case concerns a Lithuanian national charged with conspiracy to drug trafficking. Thomas Mikalauskas, 29, was one of seven persons arrested in September 2009 in connection with a “record” haul of 500kg of cannabis. He was the only one to be denied bail – officially, because (like Muscat) he had “no fixed address”. But an identical pretext did not stop the Magistrates’ Court from granting bail to a potentially homicidal suspect. Where is the consistency in all this?

Criminal lawyer Dr Veronique Dalli argues that it is actually quite rare for bail to be denied outright.

“Such cases usually involve murder, drug trafficking/importation or cultivation of drugs on a large scale, or being a foreigner with no ties in Malta.”

Bail is regulated by Article 575 of the Criminal Code. Dalli summarises the law as follows: “When a person is accused of an offence against the government’s security, or of any other crime which carries a maximum of life imprisonment, the Court may grant bail only after taking into consideration the seriousness of the crime, the character of the accused, previous convictions, his ties or connections in Malta; whether the accused has a fixed address, whether he is financially indigent and also the chances of him committing another offence of a voluntary nature.”

In practice, this also means that it is much harder for a foreigner to be granted bail than a local.

“Yes, it is true – the reason being that there is more chance that they will abscond and generally can offer no security at all… though this is applicable to foreigners who are not part of the European community.”

Contacted separately, criminal lawyer Dr Franco Debono (MP) explains that there is also the type of arraignment to be taken into account… significantly adding that the courts’ standard interpretation of the law may be flawed.

“The police can arraign persons accused of crimes or contraventions either by means of summons, or under arrest,” he points out. “When the accused is arraigned under arrest, the prosecutor must justify the arrest: which has generally been interpreted by our courts to be justified where the original arrest was legal. In my opinion this is not totally correct, since you might very well have a perfectly legal arrest, but the police could still have arraigned by means of summons.”

In cases where the arraignment method was deemed unjustified, bail is granted almost automatically. 

“Where the court rules that arraignment under arrest is not justified, then the person is released and he is given a date and time to appear in court, so that proceedings continue. On the other hand, where the court rules that the arraignment under arrest is justified, then the court must decide whether to release accused on bail pending trial, or to remand in custody.”

Returning to Article 574, Debono identifies an interesting discrepancy. “The Criminal Code states that any accused may be granted bail ‘upon giving sufficient security to appear for the proceedings at the appointed time and place under such conditions as the court may deem fit to impose . .’ So strictly speaking, in general the sole criterion which should be taken into consideration by the court is that the accused does not fail to appear for proceedings if released on bail.”

He goes on to point how the same provision of law only applies with regards to i) crimes against the safety of the State,  and, ii) crimes liable to life imprisonment.

“However, our courts have been applying the criteria laid down in Article 575 to all crimes and contraventions, and do not limit themselves to those two categories laid down in the section itself,” Debono observes.