Plans to introduce electronic tags into Malta's criminal justice system should be expanded to allow the courts to order their use in cases concerning bail, a judge has said. 

Madam Justice Consuelo Scerri Herrera said that the courts should be allowed to order an accused person to be electronically tagged as part of a bail decree.

“If this sort of system existed in our country, the state would be in a better position to monitor people accused of crimes who have been granted bail,” she wrote in a judgement passed down last week. 

She ordered that a copy of the judgement be sent to Justice Minister Jonathan Attard and Home Affairs Minister Byron Camilleri, “in the hope that the law introduced recently is scrutinized to reflect modern-day needs”. 

Electronic tagging in local justice

Electronic tags remotely and automatically transmit their GPS location to law enforcement, allowing authorities to keep track of the person wearing one. 

Plans to introduce tags into local criminal justice procedures were unveiled in September last year, but that draft bill had not been passed into law by the time parliament was dissolved for the March general election.

The bill will now have to be reintroduced from scratch once parliament is opened if it is to come into effect. 

When introducing the bill, Home Affairs Minister Camilleri had said that only those guilty of "minor crimes", prisoners granted parole and inmates out on prison leave would be eligible for electronic tagging.   

That means judges and magistrates would not be allowed to order their use when granting bail, as happens in many other countries that make use of electronic tags. 

Madam Justice Scerri Herrera noted that a decade has passed since legislators first started talking about introducing electronic tags to improve bail processes. 

She quoted from a June 2012 speech in parliament by Franco Debono, in which the then-PN MP had argued that electronic tagging, if used for bail, would help achieve a balance between the need to protect society and respect for an accused person’s legal rights. 

Debono had encouraged lawmakers to revise articles 574 and 575 of the criminal code, both of which concern laws regulating bail. 

Malta’s incarceration rate is well above the EU average, with 154.1 inmates per 100,000 residents recorded in 2020. Figures for 2021 are not available because Corradino Correctional Facility did not provide them to the Council of Europe. 

A report published this year by the US State Department noted that one in every three inmates in Malta is behind bars while they wait for their case to be concluded in court. 

The judge was writing as part of a decision to grant bail to Clayton McKay, who faces charges related to a 300g heroin bust. 

Prosecutors had objected to the bail request, saying McKay could not be trusted to respect bail conditions. The court ruled that there was no reason to deny McKay bail, noting that holding a person in custody must be the exception, not the rule. Many others with worse criminal records than McKay’s had been bailed, the court noted. 

Questions concerning bail

Questions surrounding local bail practices were brought to public attention last month after Times of Malta reported the story of a man who was left maimed and suffering from post-traumatic stress disorder after he was stabbed multiple times by a stranger in Ta’ Qali.

The man accused of that crime, Elliot Paul Busuttil, was last month accused of killing Mario Farrugia by stabbing him multiple times. Busuttil was out on bail in the previous case at the time. 

Malta’s laws allow all criminal suspects to be granted bail, irrespective of the nature of the crime they are accused of, provided they satisfy a set of criteria established in the law. 

Franco Debono and Francesca Zarb were defence counsel for McKay.