Self-defence under Maltese Law: This article is part 1 of a 2-part series discussing the various elements required to successfully plead lawful self defence under Maltese criminal law. Part 2 will be dealing with the difference between justifiable homicide and excusable homicide and when wilful homicide is deemed to be excusable under Maltese law.
Every Person has a natural and inherent right of personal safety, and where the hand of the State on account of the place or time in which the aggression takes place, cannot intervene to protect him, every person is entitled to resist by force any wanton aggression. Indeed, civilised laws have sanctioned the use of private force even in the defence of others from unjust aggression. When lawful self defence or lawful defence of another person is proved, there is a complete defence. Justification means that one is exempt from criminal responsibility.
Article 223 of Chapter 9 of the laws of Malta[1] states as follows;
“No offence is committed when a homicide or a bodily harm is ordered or permitted by law or by a lawful authority or is imposed by actual necessity either in lawful self-defence or in the lawful defence of another person.”[2]
Article 224[3] then goes to specify specific cases when lawful self defence (resulting in homicide or bodily harm) may be used.
The following are cases of actual necessity of lawful self defence;
The homicide or bodily harm is justified when it is “committed in the act of repelling, during the night-time, the scaling or breaking of enclosures, walls or the entrance doors of any house of inhabited apartment or of any appurtenances thereof having a direct or indirect communication with such house or apartment”. [4]
The homicide or bodily harm is justified when it is “committed in the act of defence against any person committing theft or plunder with violence or attempting to commit such theft and plunder”.[5]
The homicide or bodily harm is justified when it is “imposed by the actual necessity of the defence of one’s own chastity or the chastity of another person”.[6]
However, even in the aforementioned cases, the law rightly imposes certain conditions, in the absence of which, a plea of legitimate self defence cannot be successfully pleaded.
In the case of ‘Il-Pulizija vs Salvu Psaila’ (1963)[7]the court said that for a legitimate defence, the evil threatened must be; (i) Unjust (ii) Grave; and (iii) Inevitable. Let us delve into these three elements one by one;
(i) The evil threatened must be Unjust
The threat must be unlawful, not permitted by law. Therefore, one may not plead legitimate defence after he has resisted and harmed the executive police who have lawfully come to arrest him.
(ii) The evil threatened must be Grave
The act of defence must have been done in order to avoid consequences, which if they occurred would have resulted in irreparable harm. The law considers irreparable and consequently grave, that evil which threatens the life, limbs, body, or the chastity of an individual. Mere interferences with one’s property are not considered as grave unless it takes the form of circumstances outline in articles 224(a) and 224(b).[8]
(iii) The evil threatened must be Inevitable
The accused must be able to prove that the act done by him was done in order to avoid an evil which he could not otherwise have avoided. This element in turn postulates three conditions in order to materialise;
A) The Danger must be SUDDEN: The danger must not have been anticipated.
B) The Danger must be ACTUAL: The danger must be present and not one which would have already passed when the accused had committed the act of self-defence.
C) The Danger must be ABSOLUTE: The danger, at that moment, could not have been averted by other means.
In the case of ‘Il-Pulizija vs Auguliaro’ (1998)[9]the court states that the element of inevitable is deemed to be missing if the accused instead of avoiding the trouble which could have been reasonably avoided, goes to confront it and thus precipitating himself to physical confrontation.
In the case of ‘Ir-Republika ta’ Malta vs Nazzareno Mercieca u Gaetano Scerri’ (1995)[10]the court stated that to have complete justification, the means used to ward off the apprehended danger must be proportionate to the evil or danger threatened.
The aforementioned elements have become firmly established in our jurisprudence and the Maltese courts regularly make reference to these elements as essential ingredients for a successful plea of lawful defence.
For more information or assistance related to Criminal Law please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Chapter 9, Laws of Malta; The Criminal Code.
[2] “Ma hemmx reat meta l-omiċidju jew l-offiża fuq il-persuna huma ordnati jew permessi mil-liġi jew mill-awtorità leġittima, jew meħtieġa mill-bżonn attwali tad-difiża leġittima ta’ wieħed innifsu jew ta’ ħaddieħor”
[3] Chapter 9, Laws of Malta.
[4] Chapter 9, Laws of Malta, article 224(a).
[5] Chapter 9, Laws of Malta, article 224(b).
[6] Chapter 9, Laws of Malta, article 224(c).
[7] Volume 47F (1963), Part No. 4, Section, Page 1270, 09/11/1963, Of Criminal Appeal (Inferior)
[8] Chapter 9, Laws of Malta, The criminal code.
[9] Volume 82 (1998), Part No. 4, Section, Page 294, 26/08/1998, Of Criminal Appeal (Inferior)
[10] Volume 79 (1995), Part No. 5, Section , Page 1466, 15/05/1995, Of Criminal Appeal (Superior).