ACT No. XXXII of 2018 AN ACT to amend the Criminal Code, Cap. 9, the Drug Dependence (Treatment not Imprisonment) Act, Cap. 537 and to provide for other matters dealing with them or ancillary thereto. (amendmentofactxxivof)

I assent.

(L.S.)

MARIE-LOUISE

COLEIRO PRECA

President

20th July, 2018

ACT No. XXXII of 2018

AN ACT to amend the Criminal Code, Cap. 9, the Drug Dependence

(Treatment not Imprisonment) Act, Cap. 537 and to provide for other

matters dealing with them or ancillary thereto.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

The short title of this Act is the Criminal Code (Amendment)

and the Drug Dependence (Treatment not Imprisonment) (Amendment)

Act, 2018.

PART I

Amendment to the Criminal Code

This Part amends the Criminal Code, and it shall be read and

construed as one with the Criminal Code, hereinafter referred to as "the

Code".

In sub-article (1) of article 15A of the Code the words

"including moral harm and, or psychological harm," shall be substituted

by the words "including, only in the case of crimes affecting the dignity

of persons under Title VII of Part II of Book First and of willful crimes

against the person subject to a punishment of imprisonment of at least

three years under Title VIII of Part II of Book First up to a maximum

limit of ten thousand euro (€10,000) or up to such maximum limit as the

Minister responsible for Justice may by regulations establish both with

regard to the maximum amount and about the method of computation

depending on the case, moral harm and or psychological harm,".

In sub-article (1) of article 28H of the Code the words Amendment of

"including moral and, or psychological harm" shall be substituted by the article

words "including, only in the case of crimes affecting the dignity of

persons under Title VII of Part II of Book First and of wilful crimes

against the person subject to a punishment of imprisonment of at least

three years under Title VIII of Part II of Book First, up to a maximum

limit of ten thousand euro (€10,000) or up to such maximum limit as the

Minister responsible for justice may by regulations establish both with

regard to the maximum amount and about the method of computation

depending on the case, moral harm and, or psychological harm.".

In sub-article (1) of article 221 of the Code the words "five Amendment of

years" shall be substituted by the words "two years".

Immediately after Sub-title XI of Part I of Book Second of the Addition of new

Code there shall be added the following new Sub-title

"Sub-Title XII

Of the Presumption of Innocence

The measures provided for in this Sub-title transpose the provisions

of Directive (EU) 2016/343 of the European Parliament and the

Council of the 9 March 2016 on the strengthening of certain aspects

of the presumption of innocence and of the right to be present at the

trial in criminal proceedings.

366A. (1) Every person suspected or accused of

Presumption

of innocence.

having committed a criminal offence or an alleged

criminal offence shall be presumed to be innocent until

the decision on the final determination of whether that

person has committed the criminal offence has become

definitive

Provided that the provisions of this article shall

be without prejudice to the proviso to sub-article (5) of

article 39 of the Constitution and to the enforcement, as

may be provided by law, of a judgement of the Court of

Magistrates or of the Criminal Court pending the hearing

of an appeal after the accused has been found guilty of

having committed a criminal offence by one of the said

Courts.

366B. (1) The burden of proof for establishing the

guilt of suspects or accused persons shall lie with the

prosecution

Provided that the provisions of this article shall

be without prejudice to

(a) the proviso to sub-article (5) of article

39 of the Constitution;

(b) any obligation of a judge, magistrate or

any court or tribunal to seek both inculpatory and

exculpatory evidence;

(c) the right of the defence to submit any

evidence according to law.

(2) Any reasonable doubt as to the question of guilt

shall benefit the suspect or accused person including

where the court assesses whether an accused person

should be acquitted.

366C. (1) As long as a suspect or accused person has

not been proven guilty according to law, public

statements made by public authorities and judicial

decisions, other than those on guilt, shall not refer to that

person as being guilty

Provided that the provisions of this article shall

be without prejudice to

(i) acts of the Attorney General, the Police or

other public authorities having prosecuting powers

which aim to prove the guilt of the suspect or

accused person;

(ii) preliminary decisions of a procedural nature

taken by a magistrate, a judge or by any other

competent authority and which are based on

suspicion or on incriminating evidence;

(iii) the right of public authorities to publicly

disseminate information on criminal proceedings

where this is strictly necessary for reasons relating to

the criminal investigation or to the public interest.

(2) Any person who alleges that his rights under this

article or this Sub-title have been breached shall have a

right to file an application in the Court of Magistrates

within ten days, from the date of the fact which allegedly

gave rise to the breach, to demand a finding of such a

breach and an appropriate remedy

Provided that when a person stands accused before a

court the application referred to in this sub-article shall be

filed before the court where that person stands accused.

366D. Suspects and accused persons shall not be

presented in court or in public as being guilty, through the

use of measures of physical restraint

Provided that nothing in this article or in article

443 shall prevent the police or any court from applying

measures of physical restraint that may be required in any

particular case for reasons relating to security or to the

p r e v e n t i o n o f s u sp e c t s o r a c c u se d p e r so n s f r o m

absconding or from having contact with other persons.

366E. (1) Suspects and accused persons shall have

Right to silence

the right to remain silent in relation to the criminal

offence which they are suspected or accused of having

committed and shall have the right not to incriminate

themselves.

(2) The exercise of the right not to incriminate

oneself shall not prevent the competent authorities from

gathering evidence which may be obtained through the

use of legal powers of compulsion which exist

independently of the will of the suspects or accused

persons.

(3) The exercise by suspects or accused persons of

the right to remain silent or of the right not to incriminate

oneself shall not be used against them and shall not be

considered to constitute evidence that they have

committed the criminal offence concerned.

366F. Saving the provisions of any law which may

provide for trials in the absence of the persons charged or

accused, subject to the safeguards provided in Directive

(EU) 2016/343 of the European Parliament and the

Council of the 9 March 2016 on the strengthening of

certain aspects of the presumption of innocence and of

the right to be present at the trial in criminal proceedings,

persons charged or accused shall have the right to be

present at their trial.".

Article 500 of the Code shall be amended as follows

(a) sub-article (2) thereof shall be re-numbered as sub-

article (3) and the marginal note thereof shall be substituted by the

words "Appeal by the Attorney General.";

(b) sub-articles (3) and (4) thereof shall be re-numbered as

sub-articles (4) and (5) respectively;

(c) immediately after sub-article (1) thereof, there shall be

inserted the following new sub-article

"(2) The Attorney General may appeal to the Court

of Criminal Appeal against an acquittal or a wrong finding

of guilt on the bill of indictment or part thereof or against the

sentence passed unless the sentence is one fixed by law.";

and

(d) in sub-article (5) as re-numbered, for the words "sub-

article (3)" there shall be substituted the words "sub-articles (2) or

(4)" and for the words "from which an appeal has been filed."

there shall be substituted the words "from which an appeal has

been filed, or, if it considers that a sentence of greater severity

should have been passed, quash the sentence passed at the trial and

pass such sentence of greater severity warranted in the law in

substitution thereof as it considers ought to have been passed, and

in any other case shall dismiss the appeal

Provided that if the court considers that it would be

more just in the circumstances to do so, the court shall quash the

sentence and send the case for retrial before the Criminal Court.".

Sub-article (4) of article 501 of the Code shall be deleted.

Article 502 of the Code shall be amended as follows

(a)

in sub-article (1) thereof

(i) for the words "an appellant" there shall be

substituted the words "an accused";

(ii) for the words "the appellant", wherever they

occur, there shall be substituted the words "the accused"; and

(iii) for the words "though not properly convicted"

there shall be substituted the words "though acquitted or not

properly convicted";

(b) in the proviso to sub-article (1) thereof, for the words

"Provided that such other sentence" there shall be substituted the

words "Provided that where the appeal is filed by the person

convicted such other sentence";

(c)

in sub-article (2) thereof

(i) for the words "an appellant" there shall be

substituted the words "an accused"; and

(ii)

for the words "for that other offence, not being a

sentence of greater severity." there shall be substituted the

words "for that other offence which in the case of an appeal

filed by the person convicted shall not be a sentence of

greater severity.";

(d)

in sub-article (3) thereof

(i) the words "on conviction of the appellant" shall

be deleted; and

(ii) for the words "(not being a sentence of greater

severity)" there shall be substituted the words "(which, in the

case of an appeal filed by the person convicted shall not be a

sentence of greater severity)".

Article 508 of the Code shall be amended as follows

Amendment of

article 508 of

the Code.

(a)

in sub-article (1) thereof

(i)

the words "against conviction" shall be deleted;

(ii) for the words "raised under article 501(1)(b)"

there shall be substituted the words "raised under articles

500(4) or 501(1)(b)"; and

(iii) for the words "as provided by article 501(2)"

there shall be substituted the words "as provided by articles

500(5), 501(2)";

(b)

in sub-article (2) thereof

(i) for the words "An appellant" there shall be

substituted the words "An accused";

(ii) in paragraph (a) thereof, for the words "he was

convicted" there shall be substituted the words "he was

convicted or acquitted" and for the words "his appeal" there

shall be substituted the words "the appeal";

(iii) in paragraph (b) thereof, for the word "he" there

shall be substituted the words "the accused"; and

(iv) in paragraph (c) thereof, for the word "him"

there shall be substituted the words "the accused";

(c) in sub-article (3) thereof, for the words "An appellant"

there shall be substituted the words "An accused";

(d)

in sub-article (4) thereof, for the words "the appellant"

there shall be substituted the words "the accused"; and

(e)

in sub-article (7) thereof

(i) for the words "is again convicted" there shall be

substituted the words "is convicted"; and

(ii) for the words "not being a sentence of greater

severity" there shall be substituted the words "which in the

case of a retrial ordered upon an appeal of the person

convicted shall not be a sentence of greater severity".

Article 540A of the Code shall be amended as follows

(a) in sub-article (1), for the words "social worker" there

shall be substituted the words "professional, trained by the

designated agency in accordance with the Gender-Based Violence

and Domestic Violence Act"; and

(b) in sub-article (3), for the words "the social worker"

there shall be substituted the words "the professional".

PART II

Amendment to the Code of Organization and Civil Procedure

This Part amends the Code of Organization and Civil

Procedure, and it shall be read and construed as one with the Code of

Organization and Civil Procedure, hereinafter referred to as "the Code".

Immediately after paragraph (c) of article 741 of the Code there

shall be added the following new paragraph

"(d) Any reference to a "court" in the first sentence and in

paragraph (b) of this article shall be deemed to include a reference

to a Board or Tribunal established by law, so however that when a

cause is commenced before a Board or Tribunal it may also be

transferred for hearing before a court in accordance with the

provisions of paragraph (b) of this article. When a cause is

transferred to be heard in front of the Court, Board or Tribunal in

accordance with paragraph (b) the said Court, Board or Tribunal

may give all orders and make provisions as necessary, subject to

such conditions and time limits as appear to them to be

appropriate, so that the hearing of the cause will proceed in

accordance with the formal and procedural requirements,

including those relating to the payment of fees, applicable before

that Court, Board or Tribunal.".

PART III

Amendment to the Civil Code

This Part amends the Civil Code and it shall be read and Amendments to

construed as one with the provisions of the Civil Code hereinafter in this the

Part referred to as "the Code".

The first and second provisos to sub-article (1) of article 1045 Amendment to

article 1045 of

of the Code shall be substituted by the following

the Code.

"Provided that in the case of damages arising from a

criminal offence, other than an involuntary offence, and only in

the case of crimes affecting the dignity of persons under Title VII

of Part II of Book First of the Criminal Code and of wilful crimes Cap. 9.

against the person subject to a punishment of imprisonment of at

least three years under Title VIII of Part II of Book First of the said

Code, up to a maximum limit of ten thousand euro (€10,000) or up

to such maximum limit as the Minister responsible for justice may

by regulations establish both with regard to the maximum amount

and about the method of computation depending on the case, the

damage to be made good shall also include any moral harm and, or

psychological harm caused to the claimant.".

Immediately after sub-article (2) of article 2124 of the Code Amendment to

article 2124 of

there shall be added the following new sub-article

the Code.

"(3) Where damages arise from a criminal offence

committed against a minor, prescription shall run from the day on

which the victim attains the age of majority.".

PART IV

Amendment to the Police Act

This Part amends the Police Act and it shall be read and Amendments to

construed as one with the Police Act, hereinafter in this Part referred to the

as "the principal Act".

Immediately after sub-article (5) of article 35 of the principal Amendment to

article 35 of the

Act, there shall be added the following new sub-article

principal Act.

"(5A) (a) There shall be such number of chambers of the

Board as the Minister may prescribe.

(b) Where there is more than one chamber of the Board,

cases shall be assigned to the various chambers in accordance with

such rules as the Minister may prescribe.

(c) Each chamber of the Board shall be composed of a

chairperson and two other members as provided in sub-articles (1)

to (3), which together with all the other provisions of this Act

other than this sub-article shall apply with respect to each chamber

as if reference therein to the Board were a reference to a chamber

of the Board.".

Immediately after article 108 of the principal Act, there shall be

added the following new article

108A. (1) Any inquiry, complaint, proceedings or

other procedures which have hitherto been filed, instituted

or followed before the Police Board prior to the entry into

force of this Act which were valid at the time when such

inquiry, complaint, proceedings or procedures were filed,

instituted or followed shall continue to be valid after the

entry into force of this Act.

(2) The provisions of sub-article (1) shall apply also

to any recommendation, order or other decision delivered

by the said Board and to the enforcement of such order and

decision.

(3) The provisions of this Act shall apply to any

procedures that were pending before the Police Board and

which on the date of entry into force of this Act were still

pending and have not been finally concluded.

(4) All causes which were pending before the Police

Board shall be continued before the Independent Police

Complaints Board.".

PART V

Amendment to the Drug Dependence

(Treatment not Imprisonment) Act

This Part amends the Drug Dependence (Treatment not

Imprisonment) Act and it shall be read and construed as one with the

Drug Dependence (Treatment not Imprisonment) Act hereinafter in this

Part referred to as "the principal Act".

In paragraph (c) of sub-article (4) of article 6 of the principal

Act immediately after the words "the situation of any person referred to

it" there shall be added the words "and to provide assistance to any

person referred to it in particular with regard to any mental health issues

and to assist any such person to overcome the social threats of addiction

such as the absence of a fixed place of abode and unemployability and

for this purpose the Board shall be entitled to consult the Housing

Authority and JobsPlus".

Article 8 of the principal Act shall be amended as follows

Amendment of

article 8 of the

principal Act.

(a) in sub-article (1) thereof, the words "and after consulting the Drug

Offenders Rehabilitation Board" shall be deleted;

(b) in paragraph (a) of sub-article (2) thereof, the words

"grave and medically" shall be deleted;

(c) immediately after sub-article (3) thereof there shall be

added the following new sub-article

"(3A) In the event that the Drug Offenders

Rehabilitation Board receives a referral in respect of a

person who has already been referred before the Board and

whose case is still pending before it, the Board shall inform

the referring Court of that fact and it shall continue to

consider the case only under the first referral

Provided that the Board shall communicate its

findings and decisions on the first referral to any Court

which would have referred the same person to it.";

(d) in sub-article (5) thereof, for the words "considers that

the accused has managed" there shall be substituted the words

"considers that the accused although having previously suffered

from drug dependence is free from drug dependence, or has

managed" and the words "it shall refer the accused back to the

Court." shall be substituted by the words "it shall refer the accused

back to the Court:" and immediately thereafter there shall be

added the following proviso

"Provided that the Board shall have the power to

extend the period of eighteen months referred to in this sub-

article where it considers that there are exceptional

circumstances which justify that extension. The Board’s

decision regarding the extension shall give reasons and shall

be notified to the Court."; and

(e) immediately after sub-article (6) thereof there shall be

added the following new sub-article

"(6A) Where the Court assuming the functions of a

Drugs Court in terms of sub-article (1) is a court of appellate

jurisdiction, any recall of cases made in terms of sub-article

(6) shall only apply to criminal cases which are pending

against the accused in that court of appellate jurisdiction.

The said court of appellate jurisdiction shall however notify

the Registrar of Criminal Courts and Criminal Tribunals of

its decision to assume the functions of a Drugs Court and the

Registrar shall inform any other court before which criminal

cases are pending against the accused of the decision of the

court of appellate jurisdiction to assume the functions of a

Drugs Court and that order shall be binding on all such other

courts sohowever that the recall of cases made pursuant to

that order and after the court of appellate jurisdiction has

received the report from the Drug Offenders Rehabilitation

Board referred to in sub-article (5) may, in respect of cases

against the accused pending before the Court of Magistrates

or before the Criminal Court, be made by the judge or

magistrate presiding over the case which was first instituted

before that Court after receiving notification from the

Registrar that he may do so.

In the circumstances provided for in this sub-article,

cases pending before courts of appellate jurisdiction and

cases pending before other courts shall be decided separately

by the respective courts, whether individually or in groups of

recalled cases pending before a particular court, so as not to

prejudice any right of appeal competent to the accused.".

PART VI

Amendment to the Various Laws

(Criminal Matters) (Amendment No. 2) Act, 2014

This Part amends the Various Laws (Criminal Matters)

(Amendment No. 2) Act, 2014 and it shall be read and construed as one

2014. with the provisions of the Various Laws (Criminal Matters)

(Amendment No. 2) Act, 2014 hereinafter in this Part referred to as "the

amending principal Act".

Article 50 of the amending principal Act shall be substituted by

the following

Immediately after article 360A of the Code there

shall be added the following new article

360B. (1)Notwithstanding

the

other

"Proceedings in

absentia.

provisions of this Code or of any other law,

the provisions of this article shall apply to

offences within the jurisdiction of the Court

of Magistrates as a court of criminal

judicature under article 370(1).

(2) Where a person has been charged

with an offence referred to in sub-article (1)

and having been so notified, that person shall

be informed by the Court by means of a note

in the record of the case that if that person will

not be present for future sittings of the same

case, the Court shall proceed with the hearing

of the case and that it will also decide the case

in the absence of the accused. The Court shall

also after each sitting note on the record that

the accused was notified of the date and time

of the next sitting

Provided that any person charged as

aforesaid may instead of appearing before

the Court of Magistrates file in the Registry

of that Court representations in writing and,

or a declaration on the facts of the case

confirmed on oath contesting the charge

against him, and the Court shall, prior to

deciding the case, take into account such

representations and, or a declaration as if

they had been made viva voce before the said

court.

(3) A judgment delivered in terms of

this article shall be personally served upon

the offender and shall be subject to appeal.

(4) Where no appeal is filed within the

time limit from a judgment delivered in

terms of this article, the offender shall,

within fifteen working days of service of

such judgment, have a further right of appeal

against the judgment and the provisions of

this code relating to appeals shall, subject to

the provisions of this article, mutatis

mutandis, apply.

(5) Without prejudice to the provisions

of sub-article (2), a summons issued in

respect of proceedings provided for under

this article shall also contain an intimation

that in default of appearance the person

summoned may be deemed to have given his

unequivocal consent for the trial to proceed

in his absence.

(6) (a) Where a judgment is served as

provided under sub-article (3) the offender

shall also be informed of his further right of

appeal in terms of sub-article (4).

(b) The provisions of this article

shall come into effect on such date as

the Minister responsible for justice

may by order in the Gazette appoint.

(7) A judgment delivered in accordance

with this article shall have its execution

suspended until the lapse of all time limits for

appeal from that judgment as provided in this

article.".

Passed by the House of Representatives at Sitting No. 137 of the 4th

July, 2018.

ANĠLU FARRUGIA

Speaker

JOSANNE PARIS

Acting Clerk of the House of

Representatives

€1.26