Justifiable and Excusable Homocide: This article is part 2 of a 2-part series. Part 1 discussed Lawful self defence under Maltese law. This article will discuss the difference between justifiable and excusable homicide under Chapter 9 of the Laws of Malta.

There is a distinction between justifiable and excusable homicide.

In justifiable homicide[1] there is no criminal offence and thus no criminal responsibility and subsequent punishment. In the case of ‘Il-Pulizija vs Toni Micallef’ the court stated as follows:

            “… Il-Leġittima difiża mhix sempliċi skużanti bħal provokazzjoni imma ġustifikazzjoni li teżenta l-imputat mir-responsabbilta u piena..”

Therefore, in instances that fall under article 223 (as was discussed in the first part of this series) the homicide that may ensue is justifiable.

On the other hand, article 227 of Chapter 9 of the laws of Malta lays down instances of excusable homicide. Here the prime distinction is that the accused is not exempted from criminal responsibility and punishment. In excusable wilful homicide a criminal offence still materialises. So much so that article 228 of this same chapter lays down the punishment for excusable wilful homicide.

Wilful Homicide shall be excusable where “it is committed in the act of repelling, during the daytime, the scaling or breaking of enclosures, walls or the entrance doors of any house or inhabited apartment or of any appurtenances thereof having direct or indirect communication with such house of apartment.”[2]

In cases falling under article 227(b) of Chapter 9 of the Laws of Malta, the punishment for the offender shall on conviction be liable to imprisonment for a term not exceeding 2 years.[3]

Wilful homicide shall be excusable where “it is provoked by grievous bodily harm or by any crime whatsoever against the person, punishable with more than 1-year imprisonment”[4]

Wilful homicide shall be excusable where “it is committed by any person acting under the first transport of sudden passion or mental excitement in consequence of which he is, in the act of committing the crime, incapable of reflecting.”[5]

The offender shall be deemed to be incapable of reflecting whenever the homicide be in fact attributable to heat of blood and not to a deliberate intention to kill or to cause serious injury to the person, and the cause be such as would, in persons of ordinary temperament, commonly produce the effect of rendering them incapable of reflecting on the consequences of the crime.

Once may notice, that the circumstances provided in article 227(a) and 227(c) the element of provocation is highly prevalent. However, this depends on the degree of provocation, mere provocation of any sort is not enough to excuse wilful homicide.

Here, reference must be made to the English case in the names of ‘R vs Lee Chun-Cuen’ (1963) wherein the courts established 3 notions necessary for actual provocation to arise;

(i) The act of provocation itself;

(ii) The loss of self-control, both actual and reasonable; and

(iii) The retaliation proportionate to the provocation.

In terms of punishment for instances of excusable wilful homicide, article 228(1) states that in cases falling under article 227(a), the offender shall on conviction be liable to imprisonment for a term not exceeding 2 years. Article 228(2) states that in cases falling under article 227(c), the offender shall on conviction be liable to imprisonment for a term not exceeding 20 years.

Wilful homicide is excusable where “it is committed by any person who acting under the circumstances mentioned in article 223, shall have exceeded the limits imposed by law, by the authority or by necessity”.[6]

The proviso to the aforementioned article then goes on to provide that “… Provided moreover that any such excess shall not be liable to punishment if it is due to the person being taken unawares or to fear or fright.”

In instances falling under article 227(d) of chapter 9 of the Laws of Malta, the punishment for the offender shall on conviction be imprisonment for a term not exceeding 12 years.[7]

Finally, article 229 of chapter 9 the Laws of Malta precedes to shed light as to what can amount to an acceptable excuse; the excuse referred to in article 227(c) shall NOT be admissible :-

• Where the passion is provoked by the lawful correction of the person accused;[8]
• Where the passion is provoked by the lawful performance of duty by a public officer[9];
• Where the offender has either sought provocation as a pretext to kill or to cause a serious injury to the person, or endeavoured to kill or to cause such injury before any provocation shall have taken place.[10]

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

---

[1] Article 223, Chapter 9 Laws of Malta.

[2] Article 227(b) Chapter 9, Laws of Malta.

[3] Article 228(1) Chapter 9, Laws of Malta.

[4] Article 227(a) Chapter 9, Laws of Malta.

[5] Article 227(c) Chapter 9, Laws of Malta – This refers to what is known in Maltese as ‘Passjoni stantanja’

[6] Article 227(d) Chapter 9, Laws of Malta.

[7] Article 228(3) Chapter 9, Laws of Malta.

[8] Article 229(1), Chapter 9, Laws of Malta.

[9] Article 229(b), Chapter 9 Laws of Malta.

[10] Article 229(c), Chapter 9, Laws of Malta.