In 1982, American rock band Y&T launched their album “Black Tiger”.

Their single My way or the Highway was a success. The name of this song derives from a very commonly used phrase in the English language, which means that the speaker is asserting the view that either the recipient accepts the speaker’s policies or alternatively, the recipient is to leave. No divergence of opinion to that of the speaker is allowed.

Had this been the case in common parlance only and be absent from daily life, the Criminal Code would not have, since the 10th June 1854 declared that the arbitrary exercise of pretended rights, be a crime.

On September 4, 2023, the Court of Criminal Appeal, presided by Justice Consuelo Scerri Herrera, delivered judgement in the case bearing appeal number 522/2019.

Tracing the origins of this crime to article 168 of the laws existing under the Reign of the Two Sicilies [1819], the Court of Criminal Appeal, once again re-affirmed the correct teachings of Professor Sir Anthony Mamo, whereby this crime was grouped under the Title “of crimes against the administration of justice and other public administration”. Justice Scerri Herrera, quoting Professor Mamo, re-confirmed that:

“These crimes attack the State but indirectly, inasmuch as, without being actuated by motives hostile to the Government, they proceed from other causes, often of a private character and affect those social institutions on and by which the machinery of the Government rests and moves: those institutions, that is to say, which provide the means of guaranteeing to every member of the community the integrity of his rights and those benefits which derive from the state of civil society.”

Referring to previous jurisprudence developed by our courts in relation to this crime, it is undoubtedly stated that this crime is targeted against public administration since a private individual would have, whilst in breach of law, used the powers afforded by law to the authorities, against another private individual. The aim of article 85 of the Criminal Code is intended to protect property, be it movable or immovable, from a unilateral act of usurpation by a third party that would lead to the deprivation of the legitimate owner’s use, enjoyment, and ownership of said property, without having made recourse to legal proceedings.

Thus, the reason why this crime has been placed under the title of crimes against public administration. It is for this reason that courts of criminal justice  act with speed to repristinate law and order in instances when a private individual has taken it upon himself to do what should and can only be done as a result of a judicial process and decision.

Excavation works on contested alleyway

In the case at hand, it had clearly transpired that the appellant had conducted excavation works in an alley used not only by him but also by others. The Court of Criminal Appeal did not [correctly so] delve into who actually owns this alley of sorts, since that function is clearly and undoubtedly the Civil court’s jurisdiction. Nevertheless, from the evidence at hand it resulted beyond any reasonable doubt that the injured party made regular use of the said alley to access his property.

It also transpired that at a certain point in time, the appellant had installed a gate at the beginning of the contested alleyway, without the permission of the injured party. Yet the same injured party still accessed the alley in question, since said gate was never locked.

The appellant though did not limit himself to just such an action. As a result of the works undertaken, the injured party was now exposed to serious risks when even attempting to use the alleyway. The alleyway now ended up having different street levels precluding the injured party from accessing this alleyway with his motorbike as he previously did.

To compound matters, the appellant, while testifying before the First Court, unashamedly stated under oath that he could not be bothered [ma jimpurtaħx] with the accusations levelled against him since the works undertaken by him were done on his own property, albeit knowing full well that the injured party had the right of access over said alleyway.

The acts done by the appellant changed the status quo [not the 1962 British rock band] that existed between the parties. Irrespective of whether the appellant was right according to civil law, he could not do what he did. Had the appellant wanted to challenge status quo, he had to make recourse to the civil courts.

The Court of Criminal Appeal, on the basis of the above having identified that all evidence collated before the Court of Magistrates (Gozo) as a Court of Criminal Judicature, proceeded to dismiss the appeal filed and confirmed in full the punishment handed down by the first court whereby the appellant was punished to a fine of €500 and by application of article 377 of the Criminal Code, further proceeded to oblige the appellant to remedy the situation and repristinate the alleyway as it was prior to the excavation works within seven days and also ordered the imposition of a daily fine of €10 until all works were done and the alleyway was back in the same condition it was prior to the report having been fined.

Daily fines mean daily fines – Saturdays, Sundays and public holidays included. Failure of payment of fines leads to effective imprisonment. Hopefully by the time of writing the works so ordered have been done, as otherwise the Court of Criminal Appeal would really be in a position to say, it’s my way or the highway.

Dr Arthur Azzopardi is Managing Partner, Azzopardi, Borg & Associates.