Photo: Miguela Xuereb
A constitutional court has ruled that a female police inspector abused her prosecutorial powers when she decided to indict a man who had paid child support to the mother of his children no fewer than nine times – once for each consecutive monthly payment he missed.
Judge Francesco Depasquale – who consequently had to issue 9 verdicts identical in substance except for the references to each individual case – argued that the actions of the prosecutor, led by Insp. Sarah Magri, seemed designed only to incriminate the accused Joseph Muscat threaten submission.
He even argued that a long-standing practice of the Court of Criminal Appeal – by which jail sentences for non-payment of alimony are commuted to parole once the payments are made – appears only “in the face of repeated abuses by law enforcement … compelling the court to seek relief.” to accomplish.”
Therefore, to counteract such abuses, he argued that it should not only be the prerogative of prosecutors to consider whether multiple offenses can be treated as a single case: the Court should also have the power to do so ex officio if this appears appropriate.
He proposed amending the Criminal Code accordingly and urged the Criminal Court of Appeal – which had referred him to the matter – to do just that in the Muscat case.
9 criminal proceedings initiated for 9 consecutive non-payments
Muscat had failed to pay child support to the mother of its minor children between October 2020 and June 2021: such an omission is considered a breach of public order. However, since District Attorney Inspector Sarah Magri elected to treat 9 months of non-payment as nine separate offenses, Muscat faced up to 18 months in prison.
However, the Criminal Code states that “if several acts committed by the offender, even if committed at different times, constitute violations of the same provision of the law and are committed in pursuit of the same intention”, they can be considered as a continuous offense: in such cases applies a single offense as committed, although the penalty may be increased by a grade or two.
In Muscat’s case, a two-degree increase in sentence would have meant a maximum jail term of no more than 9 months, just a third of the sentence he faced as a result of prosecutors’ decision to prosecute him separately for each missed payment.
In fact, Muscat faced this maximum sentence when on October 20, 2021 a judge closed all 9 cases: he was sentenced to a month’s imprisonment nine times. The sentences were not carried out in the face of Muscat’s appeal, which led to the filing of a constitutional reference.
Police, prosecutor justify procedure
The prosecutor and the police commissioner both objected to the Insp. Magri. They pointed out that the violation, which Muscat has been accused of 9 times, is statute-barred after just 6 months, preventing the inspector from waiting for consecutive non-payments to pile up. They also insisted that the law “exists to protect the victim” – in this case the mother of Muscat’s children – and not “to protect those who flout the law in the most flagrant way”.
They also argued that the constitutional reference should not have been made in the first place, with the prosecutor citing the Criminal Court of Appeals’ practice of commuting prison sentences to parole: the same practice that the judge finally appeared to have put in place in the first place to curb the abusive correct the behavior of the public prosecutor.
Judge Depasquale firmly rejects the authorities’ arguments
He stressed that the 9 counts of charges Muscat is facing are practically identical in wording, apart from the dates mentioned. And he also noted that Muscat was treated as a repeat offender due to the segregated procedure, a consideration that affected the sentence handed down to him.
The judge also dismissed the argument that Insp. Magri had to charge Muscat nine times to avoid a statute of limitations, noting that on two occasions — on February 9 and July 22 — three separate criminal hearings were filed on the same day Muscat were initiated.
On balance, he argued that he “cannot help but state that the behavior of the prosecution – particularly in relation to the charges brought on the same day – can be considered abusive and aimed only at causing the greatest possible harm to the defendant that can be at.” surely find no solace in this court.”
And the judge didn’t stop there with his criticism of the prosecutor’s conduct, which he pointed out seemed to reflect their general approach to such cases – and not just the Muscat case.
He questioned whether prosecutors were trying to achieve justice or simply forcing the accused to pay at all costs: even at the cost of creating an injustice by potentially detaining them much longer than they should.
In the face of such prosecutorial abuses, he believed an amendment to the penal code was necessary, he concluded, before asking the police commissioner to pay all legal costs related to the case.
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