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Is applying the more favourable law just ? More favourable – YES; Less Favourable - NO

Dated: [bxcode.pagedata.date]

In a judgement delivered on the 10th May 2019, the Court of Magistrates reaffirmed a well-established principle of criminal procedure. This principle relates to the norm that whenever an amendment to the law takes place one has to always apply the law which is  more favourable to the accused. Thus, if a person is charged with an offence and, before his case is decided, the punishment for that offence is, for example, is increased, then the Courts of criminal jurisdiction are bound to apply the law which provides for the less serious punishment.

The facts of the case were as follows:
On the night of the 8th November 2014, a group of friends went out for the evening in Paceville, St Julian’s. The group was made up of a 17-year-old girl along with her brother and two of his friends.  went out to Paceville.

The young girl was informed by her brother that one his friends, a 33-year-old man from Cospicua would take her home. The girl suffered repeated blackouts due to having consumed alcohol and could not even recall how she had left St Julian’s. However, she did recall that at a point when she was conscious for a short while she found herself lying  naked in bed with the 33 year old.

The next time the girl regained consciousness, she found herself in the accused’s car, in front of her house where he asked her not to tell anyone about what had happened between them.

The next day however, the girl told her family what she believed had happened and her family then proceeded to file a police report.
The 33-year-old man from Cospicua, was faced with the charge of violent indecent assault on a minor, for which he pleaded not guilty and denied having intercourse with the victim. The Court maintained that it had reasonable doubts on the evidence produced due to the fact that the victim blacked out several times during the night and could not relate the details of what took place. The charges brought against the accused could not be proven in Court due to the lack of evidence, and moreover, the age of consent, since 2014, had been lowered to 16 years, which meant that the victim was not considered as a minor in the eyes of the law.

In fact, at the time of the commission of the alleged offence in 2014, the Criminal Code considered a minor to be any person who was under the age of 18. During the course of the proceedings the law was amended whereby the definition of a minor   included any person who had not yet attained the age of 16. Consequently, the Court concluded that, by applying this principle, the offence of having intercourse with a minor could no longer result since at the time of the offence the alleged victim was 17 years old and therefore the accused could not be found guilty of an offense that no longer existed.

In reality, this principle of applying the more favourable law is enshrined in Article 7 of the European Convention of Human Rights and is well-established in European case-law.

Thankfully, albeit recently, our Courts have acknowledged an interpretation of Article 7 which is in line with the interpretation given by the European Court of Human Rights.

Lawyer Joseph Giglio was defence counsel to the accused.

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