A judge has ruled that the attorney general needs to consider other factors, besides those laid down in current legal guidelines, when deciding whether to send accused persons for trial before the Criminal Court or before the Magistrates’ Court.

Madam Justice Consuelo Scerri Herrera, presiding over the criminal court, last week sent a drugs case back to the Magistrates’ Court and ordered that the justice minister be notified of her judgment so that the law might be amended.

The issue came to the fore in criminal proceedings against Paul Cachia, who got much more than he bargained for when, 10 years ago, he allegedly accepted an offer of €1,000 from Joey Xerri to hide an undisclosed amount of drugs in his field, just for one night.

At the time, Cachia was in dire straits after having spent all his savings on treatment at a UK hospital for his wife who was seriously ill.

He allegedly accepted to go along with the plan just because he needed the money.

However, when that box of drugs inexplicably vanished overnight, Cachia not only failed to get the promised money but ended up in great trouble.

In a separate incident, a third party told police that he once saw Xerri collect a cement sack from Cachia’s workplace.

That sack allegedly contained 50 bars of cannabis soap.

Xerri seemed angry that day because Cachia had allegedly refused to sell the drug, the third party recounted.

Cachia himself strongly denied it all.

In May 2012, he was charged with involvement in a drug trafficking conspiracy as well as possession of cannabis resin in circumstances indicating that it was not solely for his personal use.

He pleaded not guilty.

Although the police never seized the alleged bars, the prosecution insisted on pressing charges over 10 kilogrammes of cannabis resin.

As for the first incident, the amount of substance in the shoebox-sized container was never quantified and since it was allegedly dumped into the dug-out hole by Xerri himself, Cachia could not tell how much it weighed.

As proceedings continued, the attorney general decided, in terms of article 22 of the Dangerous Drugs Ordinance, that Cachia was to be judged by the Criminal Court. A bill of indictment was issued.

In June, Cachia’s lawyers filed an application to reverse that decision.

If judged by a magistrate, Cachia faced a possible minimum punishment of six months imprisonment instead of the four-year minimum jail applicable before the superior court.

The matter landed before the Criminal Court, presided over by Judge Scerri Herrera, who observed that since 2014, when guidelines were introduced under the Dangerous Drugs Ordinance, the attorney general no longer had total discretion on this matter.

The decision was to take into account the actual or potential harm caused by the crime, the role played by the accused, any attempt to hide the drugs as well as the purity and amount of the substance.

However, those guidelines were only “indicative,” said Judge Scerri Herrera.

The attorney general was to take into consideration other factors, such as the lapse of time since the start of proceedings.

In Cachia’s case, 10 years had elapsed since his arraignment.

With respect to the first incident, charges were based on a statement released by Cachia at a time when Maltese law did not provide for legal assistance in the pre-trial stage.

Besides, there was no proof as to the amount and nature of the drug.

The number of cases decided by the Criminal Court when the amount of drugs was not quantified were relatively minimal, observed the judge.

As for the second incident, the attorney general was insisting on the amount of 10 kilogrammes when that amount did not feature anywhere in the records of the case.

Given the circumstances, Cachia’s role appeared to have been a minor one.

And the prosecution appeared to believe his version since it indicated that he could benefit from a diminution in punishment for cooperating with investigators.

Consequently, the court upheld Cachia’s request and sent his case for trial before the Magistrates’ Court.

The court also ordered a copy of the judgment to be notified to the justice minister for any necessary amendments to be made so that the law might reflect other factors which should guide the attorney general’s discretion when deciding which court is to judge the accused.

Lawyers Franco Debono, Marion Camilleri and Kathleen Calleja Grima assisted Cachia.