How do we distinguish between crimes and contraventions?

The classification found under Chapter 9 of the Laws of Malta.

Article 2 of the Criminal Code[1] states that offences are divided into crimes and contraventions. This classification in turn depends on the gravity of the offence in question. The more serious offences carrying harsher punishments are classified as crimes whereas the lesser serious offences are classified as contraventions.

Book First, Part II of the criminal code speaks ‘Of Crimes and Punishments’ and lists the offences which are considered to be crimes and the punishments which such crimes carry.

Book First, Part III of the criminal code speaks ‘Of Contravention’ and proceeds to list the contraventions and their subsequent punishments.

However, having outlined the aforementioned classification, there are some crimes for which the provisions (and the punishments) of contraventions apply. This therefore means that for all other means and purposes these offences are to be considered as crimes – however of noteworthy, is that the legislator is clearly outlining that despite these offences are classified as crimes, they should be punishable by the punishment prescribed for contraventions.

An example of this is Article 161 of Chapter 9 which speaks of ‘Damage to Monuments etc.’ This crime is found in Book First, Part II of the criminal code and is therefore and is therefore considered to be a crime for all intents and purposes. However, there is a proviso to this same article which states that; ‘provided that the court may, in minor cases, apply any of the punishments established for contraventions’.

Therefore, the law gives the adjudicator the possibility of handing down a punishment for a crime which would normally apply for contraventions.

Another example wherein a crime may be afforded a punishment which is usually prescribed for contraventions is found under Article 237(d) of chapter 9 of the Laws of Malta.

Offences arising from other pieces of legislation.

Not all offences arise out of the criminal code. These are various other pieces of legislation which prescribe for criminal offences. Some of these include: -

  • The VAT Act[2]
  • The Income Tax Act[3]
  • The Environment Protection Act[4]
  • The Dangerous Drugs Ordinance[5]

Most of these specific pieces of legislation do not specify whether the offences they create are crimes or contraventions. However, they do provide the respective punishment for the said offences. In fact, the punishment prescribed for these specific offences serve as a good indicator as to whether these offences ought to be classified as crimes or as contraventions. If for example, the offence is punishable with imprisonment, then the punishment would resemble the punishments prescribed for crimes in the criminal code.

If on the other hand, the offence created is punishable with a fine (ammenda) then given the resemblance with the punishments existing for contraventions, it would make sense to classify the offence as being a contravention.

But why is this distinction between crimes and contraventions so important?

There exist a multitude of reasons why it is important to distinguish between crimes and contraventions. Below, we will be discussing a few.

1. The Consequence of the Corpus Delicti[6]

The corpus delicti consists of all the instruments used or intended to be used in the commission of a criminal offence as well as anything illicitly obtained by the offence (For Ex: Profits obtained through drug trafficking)

As a rule, the corpus delicti is subject to forfeiture ie. Jista’ jiġi konfiskat[7] only if the offence in question is crime. In the case of contraventions, this forfeiture is generally not possible. It is only possible in instances where the law expressly states so. The forfeiture of the corpus delicti is provided for under Article 23 of the Criminal Code.

Therefore, the distinction between crimes and contraventions is important in this regard since once an offence is classified as a crime, then it would be subject to forfeiture.

2. Attempts

An attempt is only punishable in the case of Crimes. This is stipulated in Article 41(2) of chapter 9 of the Laws of Malta. An attempted contravention is only punishable where it is expressly provided by law. Therefore, as a general rule only attempted crimes are punishable.

3. Vicarious Liability

Vicarious liability arises when a person is held to be responsible in court for something which albeit he didn’t personally commit but which was committed by someone else (For ex. A father being held vicariously liable for an offence committed by his minor son) This is provided for under Article 24 of the Criminal code which makes it clear that vicarious liability arises only in respect of contraventions.

4. Recidivism

According to article 49 of Chapter 9 of the Laws of Malta, a person is deemed to be a recidivist if after being sentenced for any offence by a judgement which has become res judicata, he commits another offence.

Article 50 then provides that a person who commits a crime subsequently (during the operational period mentioned therein in the law) commits another crime, then the punishment ought to be increased.

What is important for the purposes of classification is the fact that article 50 operates only when a crime is followed by another crime. Therefore, a person who commits a crime and later commits a contravention or an involuntary offence, would not warrant this increase in punishment.

5. Prescription

In the case of contraventions, the prescriptive period is that of 3 months. In the case of crimes, the prescriptive period varies according to the gravity of the crime; this is based on the scale provided in Article 688 of Chapter 9 of the Laws of Malta.

For more information or assistance related to Criminal Law please contact Dr Robert Tufigno and Dr Delilah Vella.  

[1] Chapter 9, Laws of Malta.

[2] Chapter 406, Laws of Malta.

[3] Chapter 123, Laws of Malta.

[4] Chapter 549, Laws of Malta (Partially in force)

[5] Chapter 101, Laws of Malta.

[6] ‘The Body of the Crime’ No one should be convicted of a crime without sufficient evidence that the crime actually occurred.

[7] English translation; ‘May be confiscated’.

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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