Tonio Borg, the home affairs and justice minister who ushered in the law, defends its implementation. Citing the notorious case of the Jamie Bulger murder, the horrific killing of a two-year-old at the hands of two 10-year-olds, he says such gruesome acts are also “evil deeds which even nine to 14-year-olds commit.” Bulger was abducted from a shopping centre by Jon Venables and Robert Thompson in 1993, who walked two and a half miles with him, in the process bruising him and kicking him, before they left him across the railway tracks and weighted his head down with rubble. His body was run over by an oncoming train.
In the sense of the gravity of the crime, imprisonment seems to be a far more justifiable form of punishment than the simple reprimand or fine previously provided by the law. Before the 2002 amendments, the Criminal Code provided that children aged nine to 14 who committed any criminal offence acting with mischievous discretion could only be sentenced to a fine between €6.99 and a maximum of €58.23.
It means that, in the case of such crimes like – as Tonio Borg himself listed exhaustively – wilful homicide, arson, drug trafficking, causing of explosions with loss of human life, or even terrorist acts, the child offender would face imprisonment.
Borg argues that before the amendments, the punishment for child offenders could “hardly be considered reasonable and equitable punishment in grievous offences of the kind mentioned.”
But the minister also kicks the ball back into the Attorney General’s court, after the same office pointed out in a letter to the press earlier last week that the 13-year-old girl had been imprisoned, legally ‘justifiably’ one would presume, under the amendments of 2002.
In a universal culture which seems to place particular attention on children – their diets, their playing atmosphere, their schooling, and their exposure to violence and negative influences on TV and in video games – it is bizarre to learn that in 2002, a government would find it necessary to legislate in favour of imprisonment for children, although it would be senseless to rule out that children could be willing or indirect accomplices and perpetrators of crime. Even the Convention on the Rights of the Child does not prohibit the impartial and justified incarceration of children.
And yet, Tonio Borg says it had been considered by the Attorney General’s office, then under the stewardship of Anthony Borg Barthet, “that limiting the Court’s choices to a sentence of ammenda (fine)… did not sufficiently take into account the difference in the degree of seriousness that there could be between different offences which could be of a particularly grievous nature as already described.
“It was therefore considered appropriate to allow the Magistrate to impose the punishment of deprivation of personal liberty in those cases where such punishment could be appropriate.”
Interestingly, the parliamentary debate on the Criminal Code amendments held back in 2001, produced no relevant discussion of this particular section. The 220-page Act, chock-full of sweeping reforms, failed to elicit any discussion on the imprisonment of children. Labour shadow minister for justice Gavin Gulia explains the debate that was then held just before parliament’s summer recess:
“The amendments made an extensive overhaul of the Criminal Code and other chapters of the laws dealing with crime. The Opposition had objections on certain specific amendments but was in agreement with the general thrust of the Act. It would have been illogical to vote ‘no’ with a call for a division, as it would have transmitted the perception that the Opposition is against the fight against crime. Of course we made our reservations on certain provisions at committee stage, but on occasions the government moved from its original rigid position and softened its amendments. So we either voted for the changes or voted ‘no’ without a call for a division.”
Still, the grievous crimes listed by Tonio Borg certainly cannot be compared to what transpired to be something of a teenage squabble in the case of the 13-year-old girl.
The case goes back to March of last year, when three girls aged between 13 and 14 were prosecuted for their part in a fight with another group of similarly aged girls in Valletta. All three were found guilty by Magistrate Antonio Vella of verbal abuse, and one of causing slight injury to one of the other girls, apparently by pulling her hair. They were sentenced to seven days’ detention, but while two of the girls filed an appeal against their sentence, the third did not… for reasons which have never been made fully clear. The other two girls’ sentence was later revoked by the Court of Appeal.
As a result, the youngest of the three offenders was left with no option but to go to jail, becoming the first female offender of her age to be incarcerated at Corradino prisons.
Attorney General Silvio Camilleri said last week the girl in question had not appeared in court for the first session, while her peers were given a sentence of imprisonment by the Court, which at that point could not sentence the other girl because she was absent.
“I’m not informed as to whether the police prosecution actually demanded that the girl be given a prison sentence, but it is likely that the Court had to be consistent in sentencing this girl the same way as the others,” Camilleri said.
Labur MP Gavin Gulia today expresses his doubts on this particular amendment: “I could not see the utility of the amendment in question as in Malta we do not have a delinquent society, particularly among kids at that age. I must however emphasise that the law imposes some very important qualifications that have to be satisfied before the Court decides to pass a sentence of imprisonment in lieu of a mild punishment. The judge or magistrate cannot just incarcerate a minor unless those conditions are proved and it is up to him to do so. He is not bound to.
“Having said that, I dislike the amendment and I would have preferred to do without it. There are reformative penalties for misconduct and a judge can safely make recourse to them without the need to incarcerate.”
But as Tonio Borg points out, the Court itself was still armed with the discretion to order different forms of punishment. And it is this point that leads observers to query whether it was the Court that may have been too hasty in sentencing the teenagers to incarceration; or whether it was expected that the Appeals Court would have revoked the sentence anyway; but transpiring, as this case shows, that without an appeal the 13-year-old girl would have to spend the next week in a jail which was not specifically equipped for people her age.
“In spite of this amendment, it was specifically stated that the court was still allowed discretion,” Borg says, indeed a wide area of discretion which would have included: binding the parents to take care of the minor in lieu of imprisonment; issuing a care order; awarding a suspended sentence of imprisonment; imposing a fine; issuing a probation order (which places the minor under the supervision of a probation officer) and even ordering community service; or discharging the minor under a condition not to commit an offence within a specified time.
Borg adds that the law also laid down a number of criteria to guide the Court in its assessment as to whether, in exceptional circumstances, the punishment of imprisonment would be appropriate. Even in this case, it is arguable that, given the girl’s clean record, the Court could have reduced the punishment provided for the offence by three degrees.
“In fact the amendment provided that the Court may sentence the person to the punishment for the offence (which could be imprisonment) decreased by three degrees (a substantial reduction), if the court was of the of the opinion that none of the punishments… including a fine, was appropriate, after taking into account the age of the offender, his previous conduct, the gravity of the fact of which he has been convicted and the degree of mischievous discretion shown by the offender as it appears from his conduct by which the offence was committed and all the other circumstances of the offence.”
Borg adds that the law actually widened the Court’s sentencing options so that it could take into account a wider spectrum of possible circumstances. “But in all cases it retained its discretion to impose any non-custodial sanction which it considered appropriate.”
But does Borg agree with the sentence? Borg says he was neither informed of the case.
“I cannot substitute my discretion with that of the presiding magistrate in this particular case since judgments by the Juvenile Court are by law covered by the rule of confidentiality and therefore I do not have a copy of the records or judgment in this case.
“I was never seized of the case in any way; no appeal seems to have been filed in this case; nor was any petition for pardon submitted.”

mvella@mediatoday.com.mt