Issue link: https://maltatoday.uberflip.com/i/1389773
10 maltatoday | SUNDAY • 4 JULY 2021 OPINION Raphael Vassallo Worried about going to prison? Get a job in the construction sector… LET'S try a little experiment, shall we? I will quote from two (much-publicised) judgments by the Maltese courts… you try and guess which cases they are taken from. Ready? Here's the first quote: "Those concerned over the suffering their family goes through due to their convic- tion, should consider this be- fore embarking on criminal activity. Having a family is not a reason to disturb a court's de- cision." Allow me to repeat that last part, just for the sake of un- necessary emphasis: "Having a family is not a reason to disturb a court's decision." Got that, everyone? Good. And now, onto the second mystery quote of the day: "The defendants […] have to provide for their families, and a prison sentence could have negative effects on other family members who are extraneous to the case…" Ok, I'll admit that the second quote is somewhat easier to identify than the first (if noth- ing else, because the sentence itself was only handed down a few days ago: understandably enough, causing widespread outrage and indignation). But in case you missed it: it is part of Magistrate Joe Mifsud's justification for refusing to im- prison two architects, despite having found them guilty of criminal negligence resulting in the death of Miriam Pace last year (under circumstances that you will surely not need me to repeat). The first quote, on the oth- er hand, takes us all the way back to October 2013. And for the benefit of those with short memories – a rather large cat- egory in this country, it would seem – it is lifted from the Ap- peals Court ruling in the case of Daniel Holmes: imprisoned for 10 years for the cultivation and trafficking of cannabis. To be honest, however, the specific details do not real- ly matter all that much. Even without knowing anything at all about the two separate cas- es… you can already see, just from the wording alone, that those two quotes contradict each other rather blatantly, on the application of what is ulti- mately a very basic legal prin- ciple. Should the effect of incarcer- ation on other family members be taken into consideration by the law-courts, when met- ing out sentences in any given case? In the first instance, the answer came back as a very emphatic 'No'. In the second, however… it suddenly became 'Yes'. Or, to use the same phrasing: in one case, 'having a family' was not enough to overturn a 10-year prison sentence (even though the crime, in itself, did not actually kill anyone); whereas, in the case of two architects charged with invol- untary homicide… 'having a family' was suddenly enough to commute a prison sentence, to a mere two months' worth of community service, and a K10 fine. Leaving aside the sheer dis- crepancy in sentencing policy alone – which, to be fair, we al- so see in a wide variety of oth- er cases: not all presided over by Mifsud – those two rulings could very easily have been the result of two totally different (and utterly incompatible) le- gal systems. Yet they are both interpre- tations of one and the same Criminal Code… which - to the best of my knowledge, anyhow – has not been substantively changed at any point between 2013 and 2021 (or at least, not in any way that can possibly justify the above contradic- tion). So much so, that Magistrate Joe Mifsud himself – whose ruling, by the way, was else- where replete with allusions to previous judgments – did not substantiate this part of his reasoning with references to any kind of case-law at all. Presumably, this is because Mifsud was not, in fact, basing his reasoning on any existing article of law. Like so many of his other judgments, his sud- den concern with family mem- bers seems to be a purely per- sonal, subjective opinion of his own, which has no real legal basis whatsoever. And it seems to have cropped up only in this one particular case, too. Naturally, I have nei- ther the time nor the inclina- tion to pore over every single judgment, ever handed down by the Criminal Court, to see if this sort of reasoning has ever been used before. But I don't think it would even be necessary, for the simple reason that: let's face it, if the same logic were to be applied to every single criminal case in Malta… nobody would ever be sentenced to prison at all. It is probably too obvious a point to even bother spelling out, but… every single per- son who is currently serving a sentence in Corradino pris- on – from the most hardened, cold-blooded murderer, to the hit-and-run motorist who acci- dentally ran over a pedestrian, all the way down to the hapless VAT defaulter – will have fam- ily of their own, too. You know: mothers and fa- thers, sons and daughters, brothers and sisters, aunts, uncles, cousins, nephews, niec- es.… that sort of thing. And all of those family members, in turn, would likewise be 'extra- neous' to the crime in question; not to mention – most of the time, anyhow – utterly devas- tated by the incarceration of their darling, beloved relative (no matter how 'deserved' or 'undeserved'). So if the judiciary were to suddenly start taking the plight of all those people into con- sideration, when deciding on each and every single criminal case… quite frankly, we would end up having to dismantle, not just Corradino prison itself; but also, eventually, the crimi- nal justice system as a whole. But of course, the Maltese courts don't normally do this (for reasons that are rather clearly spelt out by the Holm- es ruling, quoted above). And nor, for that matter, does Mag- istrate Joe Mifsud himself… or at least, not when sentenc- ing 'lesser mortals' to prison (which, in other instances, he does quite a lot). In fact, you don't need to look very far at all, to find cas- es where the same magistrate seems to have applied diamet- rically opposed reasoning him- self. Just five days ago, for instance, the same Joe Mifsud had no qualms whatsoever in sentenc- ing 13 Bangladeshi immigrants to six months' imprisonment, for the grave crime of 'en- tering the country using fake passports' (another 'victimless crime', if there ever was one...) Now: I myself have neither met, nor spoken to, any of those 13 incarcerated Bang- ladeshis. But I am reasonably confident that all 13 of them would also have family mem- bers – most likely, back home in Bangladesh – who would no doubt have been 'negatively affected' by news of their rel- atives' imprisonment in a for- eign country. Was that fact taken into con- sideration by the magistrate, before handing down that (rather harsh) sentence? No, of course not. They were, after all, only 'illegal Bangladeshi immi-