A woman was spared 40-days behind bars on Wednesday when her conviction over allegations of loitering in Marsa was found to have been based on mere “presumptions of fact”.
The 48-year old woman from Mqabba had been found guilty of loitering for prostitution in February following an incident that took place one evening in October 2019.
A police squad patrolling an area of Marsa, notorious for prostitution, spotted two women who were provocatively dressed.
The officers approached the women, checked their personal details, told them to leave and warned them that charges would be issued in due course.
A while later, the patrol came across a third woman, the accused, who appeared to be hanging around Triq Belt il-Ħażna, in the vicinity of a bar.
She was also told to go home and warned that she would face prosecution.
Charges were eventually issued and the woman was found guilty of loitering with intent but not of relapsing, and was given a 40-day jail term.
Her lawyers, Franco Debono and Marion Camilleri, filed an appeal arguing that the conviction was based on a wrong assessment of facts and that the prosecution had failed to prove its case beyond reasonable doubt.
The accused was not bound to prove her own innocence, they argued.
When delivering judgment, the court of criminal appeal, presided over by Madam Justice Consuelo Scerri Herrera, delved into the reasoning behind the laws regulating the offence of loitering.
Maltese law, modelled upon the Street Offences Act of 1959, was tailored to eliminate prostitution from public places so as to spare passers-by from “annoyance” while going about their private business.
Citing doctrine and jurisprudence, the court said that loitering as defined by the English courts referred to “lingering with no intent to move on and may be engaged in, while in a vehicle as well as on foot”.
In this case, the first court had relied on various presumptions of fact that did not add up to proof beyond reasonable doubt that the accused was in that place at that time for prostitution.
The police had “spotted” her rather than “observed”, implying that it had been a one-off occurrence.
Nor had the officers said anything about the suspect’s clothing, her movement along that stretch of road, whether she had approached any third party or whether she had left when told to do so.
To be found guilty, the suspect must have loitered or solicited, as evidenced by speech, body language, clothing and time frame involved.
“In this case there was nothing of the sort,” said Madam Justice Scerri Herrera, concluding that, in light of all considerations, the conviction was not “safe and satisfactory” since the prosecution had not proved that the appellant was loitering, “let alone for the purpose of prostitution”.
The woman was cleared of all criminal liability.