Prescription, or as is more commonly referred to in other jurisdictions, the Statute of Limitations, is a notion originating from Roman law, denoting a fixed period of time within which a court case has to be instituted against a defendant. This is a fundamental element applicable to both criminal and civil cases.

The Maltese legislator enacted a body of laws determining these periods in relation to different offences. The executive police are precluded from instituting criminal proceedings after the lapse of the prescriptive period relative to the particular offence in question.

From a criminal law perspective, the concept of prescription is of great signi­ficance due to the fact that through prescription, the legislator attempts to safeguard the accus­ed from having a case instituted against him a long time after the occurrence of the crime. Its objective is to restrain the executive police from charging suspects with crimes arising from the loss of evidence, death, loss of me­mory of witnesses and obscurity of facts.

The institute of prescription is of paramount importance in a democratic society, in attempting to strike a balance between the rights of society at large and those of the alleged perpetrator. Of course, from a ‘popularity’ point of view, prescription may be deemed as an infamous way how people may escape justice but, in reality, it is not. It is indeed an important part of justice itself.

Apart from the legal aspect of prescription, from a logistical point of view, it is argued that it is not logistically efficient for the courts to be determining cases where the facts are no longer detectable, evidence no longer traceable, witnesses no longer accessible and when statements are affected by the fallibility of the human memory. The bottom line is that cases instituted after a long time are, as a general rule, too weak to argue and prove.

Some schools of thought argue against the imposition of a prescription period, while others contend that the application of prescription in cri­mi­nal cases is part and parcel of the fundamental right of each and every suspect to have his guilt and innocence determined by a fair and an effective legal process. However, the main conflict revolves around what length of time is truly regarded as fair.

It is worth mentioning that back in 2013, Parliament approved a bill for the removal of prescription on acts of political corruption. This law practically prevents politicians charged with corruption in relation to the office that they hold from raising the plea of prescription.

More recently, in 2018, Judge Giovanni Grixti acquitted a man accused of defiling a young relative due to the fact that the criminal action was time-barred, and consequentially, through this judgment, called for amendments in laws related to sexual abuse crimes, and this in light of the fact that victims of sexual abuse only comprehend the seriousness of the offence years later.

Prescription may be deemed like an infamous way how people may escape justice but, in reality, it is not. It is indeed an important part of justice itself

In Malta, the prescriptive period that determines whether or not a charge is time-barred is regulated by the punishment for which that particular offence would be ordinarily liable without taking into account any aggravating factors. Once a criminal case is instituted within the prescription period stipulated by law, the said prescriptive period is said to be suspended.

Contrastingly, if a criminal case is filed once the prescriptive period laid down by law has lapsed, the plea of prescription may be raised by both the defence as well as ex officio by the court. This would then lead to the extinction of the criminal action.

This was the matter at hand in the case of ‘The Police v Tanya Carmen Chetcuti’ decided by the Court of Criminal Appeal in its Inferior Jurisdiction on July 14.

The accused was first charged before the Court of Magistrates on the accusation that on March 15, 2015, she had driven a motor vehicle on a road while unfit to drive through drink or drugs, and that of driving a motor vehicle after consuming an amount of alcohol that exceeded the prescribed limit.

By means of a judgment delivered by the Court of Magistrates on March 1, 2016, the Court of Magistrates decided that the accused had not been notified with the charges in the English language within the prescribed period of time and declared the proceedings as time-barred.

The Attorney General felt aggrieved by the said judgment and filed an appeal from this decision, arguing that the prescriptive period for the crimes with which the accused was charged was that of two years. Considering that the court judgment declaring the action as being time-barred was delivered during a period of one year from the date of the alleged offence, the Attorney General contended that the action could have never been time-barred. The Attorney General requested the Court of Criminal Appeal to declare the judgment as defective and to annul the judgment of the Court of Magistrates.

Subsequently, the Court of Criminal Appeal, through a partial judgment delivered on June 14, 2019, held that the judgment of the first court was null since the charges were not notified to the accused appellant in the English language − taking into consideration that the accused was a foreign national and the appellant could not understand the Maltese language.

Eventually, the executive police notified Chetcuti of the charges in the English language on June 23, 2020.

The court observed that the punishment applicable for the offences that the accused was charged with could not exceed six months of imprisonment and that in terms of the Criminal Code, the prescriptive period for such actions was two years.

Considering that five years had lapsed before the appellant was notified with the charges in the English language, the Court of Appeal stated that the proceedings were time-barred and acquitted accused appellant from all charges against her.

Rene Darmanin is a junior associate at Azzopardi, Borg & Abela Advocates.