Issue link: https://maltatoday.uberflip.com/i/960495
50 maltatoday SUNDAY 1 APRIL 2018 T he amendments to Article 500, which were done by Act IV of 2014 and Act VIII of 2015, granting a procedural right of appeal to the Attorney General in criminal cases shall have retroactive application. This was decreed by the Court of Criminal Appeal (Superior) in the case of The Republic of Malta vs Allan Grech. The defendant was found guilty of willful homicide and unlawful possession of a sharp knife which he used to murder the victim during an argument in February 2010. That year, a trial by jury found him guilty of breaching the limitations of lawful self-defence and unlawful possession of a weapon, with the Courts sentencing him to six years in prison. The Attorney General pleaded with the Court to reverse and change the sentence in order to rid the defendant of any excusability before the law and to impose a more grave sentence in this regard, claiming that there had been a miscarriage of justice. Article 500 (3) and (4) allow for the institution of an appeal by the Attorney General to the Criminal Court to reverse and change a sentence given in cases which have been formerly decided by a trial by jury, where the judgement is clearly the result of a manifest misinterpretation or of a manifestly wrong application of the law, which could have had a bearing on the verdict.The defence held that an appeal by the Court in order to reverse the findings by a jury would constitute a breach of the principle of non-retroactivity of law in criminal matters since the trial by jury was held in 2010 while the amendments came later. The Court explained that the principle of non-retroactivity, found in both Article 39 of the Constitution and Article 7 of the European Convention, emanate from the principle of "nullum crimen, nulla poena sina lege" which means that no action can be punished unless the law states that it is indeed a crime. The principle of non-retroactivity is meant to therefore protect individuals from being accused of a committing a criminal action which was not illegal at the time of its commission. The principle therefore applies to substantive criminal law and means that individuals should have the right to access the law in order to know what actions are criminal in nature, and to not be punished for actions which are were not illegal when they were committed. It was held that the rights of the defendant were therefore not at stake in this case. The Court explained that procedural criminal law has effective and immediate application, meaning that the procedures become effective even to proceedings that were ongoing before the new procedures were in place. The Court held that Article 500 (3) and (4) are not related to substantive criminal law nor did they breach the fundamental right of the defendant to foreseeability of the grave criminal nature of his crimes. For this reason, the Court dismissed the argument by the defendant that the plaintiffs' right to appeal could not apply in this case. The judgement was delivered by Hon. Judge Joseph Zammit Mc Keon acting as Agent President, Hon. Judge Abigail Lofaro and Hon. Judge Edwina Grima. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion A development planning application contemplating various structural interventions including the sanction of unauthorised structural additions was turned down by the Planning Commission even though applicant had insisted that the site had been "committed" with development before 1978. The site in question is situated outside the development zone of Qrendi. To justify its decision, the Commission held inter alia that the proposed interventions ran counter to planning policies, citing the provisions of policy 6.2C of the Rural Policy & Design Guidance (RPDG) 2014 which essentially provide that redevelopment may only be considered when the proposed floor area reflects that "of the 1978 rooms". Moreover, the Commission underlined that applicant, in this case, was neither a registered farmer nor an animal breeder. On this basis, the proposal was found to be in breach of planning policy. Following the said decision, applicant lodged an appeal before the Environment and Planning Review Tribunal, requesting the Tribunal to reverse the decision. In his defence, applicant (now, appellant) said that he was submitting himself "to the judgement of the Tribunal and will stand by the decision of the Tribunal as to the depth of the first floor room as previously existing". "Should the Tribunal decide to approve solely the 1978 construction at first floor", appellant agreed that he would "humbly submit to this decision" and therefore requested the Tribunal "to direct the depth at first floor level". In other words, the Tribunal was called to define the extent of commitment that had existed prior to the year 1978 and decide accordingly. In reply, the case officer contended that the proposed aggregate floor area measured 190 square metres, highlighting that "the 1978 aerial photos indicate the presence of a room at first floor level, which does not extend to the facade of the building and is much smaller than what is being currently proposed." The Tribunal was reminded that applicant had ignored the Directorate's suggestions to scale down the proposal, limiting the size of the rooms to what was visible in the 1978 aerial photos. Moreover, the Agricultural Advisory Committee had objected to the proposal since applicant was not a registered farmer, nor a livestock breeder, and no proof of arable farming to justify the use of the stores was forthcoming. In its assessment, the Tribunal observed that the proposed area was larger than what had existed in 1978. It further noted that an open area linking the old rooms at ground level was roofed recently. In addition, applicant had failed to bring sufficient evidence attesting that he is a genuine farmer. Against this background, the Tribunal went on to dismiss the appeal. Dr Robert Musumeci is an advocate and a perit with an interest in development planning legislation robert@robertmusumeci.com Robert Musumeci Policy 6.2C of the Rural Policy & Design Guidance: redevelopment may not exceed "the total floor area of the 1978 room" Malcolm Mifsud Attorney General's newest procedural right to appeal to find retroactive application Tribunal not convinced about the need for agricultural storage @ maltatoday