Issue link: https://maltatoday.uberflip.com/i/874823
46 maltatoday, SUNDAY, 17 SEPTEMBER 2017 Opinion A Magistrate's Court held that it is not sufficient for harassment to stick if there is only one incident, there must be more than one. This was held in a court judgement, the Police -v- Tristan Tedesco, handed down by Magistrate Donatella Frendo Dimech on 8 August, 2017. Tedesco was charged with having escaped from police custody, damaging his father's property, causing fear of violence towards his mother, threatening people on the phone and harassment. Tedesco admitted to all the charges brought against him, however, the Court could not accept the guilty plea with respect to the charge of causing others to fear violence against them as contemplated in Article 251B of the Criminal Code and this was because there is no evidence that there existed a course of conduct. Magistrate Frendo Dimech quoted from the Police -v- Joseph Bajada decided on 2 May, 2013, which held that the offence of harassment was introduced in 2005 and the law contemplates a course of conduct and not one single incident. The Court also quoted from Black 's Law Dictionary which defines harassment as "words, conduct or action (repeated and persistent) that being directed at a specific person annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose". This course of conduct must result from the evidence produced. Article 251C gives an interpretation of Article 251B and states that harassment includes alarming the person or causing the person distress. Notwithstanding this the law lacks a definition of harassment, but the court can still judge whether an action is one of harassment or otherwise. In another previous judgement the Police -v- Francis Xavier Micallef, the Magistrates Court pointed out that the law mentions conduct, which is equal to the British notion of course of conduct. A single incident cannot amount to harassment. The article in the Criminal Code has been inspired by Article 4(1) of the Protection from Harassment Act, 1997 in the UK which states "A person whose course of conduct causes another to fear on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions." The court then considered other charges Tedesco was accused of, one of which was that he breached a probation order delivered on 16 February, 2017. For this another magistrate dealt with the breach following a report filed by the probation officer. With regard to the punishment to be awarded the Court took into consideration that the accused had admitted to the charges, and also his worrying criminal record. According to the pre-sentencing report, the accused lives a turbulent life, but also suffers from a medical behavioural condition. His parents pressing for the proceedings was for the courts to order his care. The Court sentenced the accused to three years in prison and ordered that he receives care. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates T he Planning Commission had to decide whether to allow onsite cooking within an established food and drink outlet together with the sanctioning of various structural interventions including a 'temporary (seasonal) platform atop an eroded dilapidated depression to house tables and chairs' just outside the premises. Moreover, the proposal included the replacement of an existing metal canopy with a timber one as well as the redesign of the toilet facilities so as to 'incorporate a ventilated storage for gas cylinders'. The premises in question abut a concrete slipway in Ghar Lapsi. Following a thorough analysis and various consultations, the Commission found that the proposed platform 'covered a public open space, being a 'public beach'.' Therefore, the proposal was deemed to be in breach of Thematic Objectives 5 and Coastal Objectives 1 & 3 of the Strategic Plan for Environment and Development (SPED). Against this background, the Commission proceeded to turn down the applicant's request. In reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been approved. In his application, the applicant submitted that the Commission's only concern related to the concrete platform. Now, Policy T05 of the Strategic Plan for Environment and Development provided that existing recreational resources should be protected, enhanced and made accessible allowing for 'the provision of new recreational facilities to improve social cohesion, human health, air quality and biodiversity' whereas coastal policies were in favour of new recreational facilities as long as these 'do not restrict or interfere with physical and visual public access of the coast and in a manner which does not have an unacceptable adverse impact on protected areas, species and areas of high landscape sensitivity'. All things considered, the applicant contended that the proposed platform was deemed acceptable since none of the cited SPED objectives were being compromised. In reply, the case officer representing the Authority underlined that the area in question consists of 'typical coastal features that are scheduled for their ecological importance'. More so, SPED Thematic Objective 5 was meant 'to ensure that existing recreational resources are protected'. According to the case officer, the proposed platform formed part of 'the existing natural foreshore, which is typical of eroded holes and coastal boulders'. Consequently, these natural features should be preserved 'in their natural state and not serve as an 'excuse' for the taking up of public land for the use of a commercial activity'. Concluding, the officer reminded the Tribunal that North West Local Plan Policy NWLA 2 expressly prohibits the introduction of any inappropriate structures or activities which in the Authority's opinion 'adversely affect designated Areas of High Landscape Value of Coastal Cliffs'. For its part, the Tribunal assessed that the concrete platform was deemed inappropriate since the pristine foreshore would be compromised. For this reason the Tribunal approved the application, however subject to doing away with the concrete platform. Dr Robert Musumeci is an advocate and an architect with an interest in development planning law robert@robertmusumeci.com Robert Musumeci The concrete platform was deemed inappropriate since the pristine foreshore would be compromised Malcolm Mifsud Harassment takes place when there is a multitude of incidents Permit for Ghar Lapsi concrete platform turned down