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The Probation (Amendment) Act, 2009 (Bill No. 40)

A BILL

entitled

AN ACT to amend the Probation Act, Cap. 446.

Short title and commencement

Cap. 446.

Amendment of article 2 of the principal Act.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) The short title of this Act is the Probation (Amendment) Act, 2009, and this Act shall be read and construed as one with the Probation Act, hereinafter referred to as "the principal Act".

(2) The provisions of this Act shall come into force on such date as the Minister responsible for justice may, by notice in the Gazette, establish, and different dates may be so established for different provisions and for different purposes of this Act.

2. Article 2 of the principal Act shall be amended as follows: (a) immediately before the definition "combination

order", there shall be inserted the following new definition:
" "alternative sanction" means a community service order, or a combination order, or a conditional discharge, and the terms "community service order", "combination order" and "conditional discharge" shall have the same meaning assigned to them in the Act;";
(b) immediately after the definition "community service order", there shall be inserted the following new definition:
" "competent authority" means the competent authority of Malta established under article 26;";
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(c) immediately after the definition "Director", there shall be inserted the following new definitions:
" "executing State" means the Member State in which the probation orders and alternative sanctions are supervised following a decision in accordance with Article
8 of the Council Framework Decision 2008/947/JHA of 27
November 2008;
"Framework Decision" means Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principal of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions;"; and
(d) immediately after the definition "institution", there shall be inserted the following new definition:
" "issuing State" means the Member State in which the judgment is delivered;".

3. Article 7 of the principal Act shall be amended as follows:

(a) in sub-article (2) thereof, the second proviso shall be substituted by the following new proviso:
"Provided further that where a probation order which has been made is of a period of less than one year, that order shall be deemed to be of one year."; and
(b) in sub-article (8) thereof, for the words "The court by which a probation order is made shall forthwith give copies of the order to the probationer, to the Director" there shall be substituted the words "The court by which a probation order is made shall forthwith give copies of the order to the probationer, and summon in his presence the Director".

4. Article 10 of the principal Act shall be amended as follows:

(a) sub-article (1) thereof shall be substituted by the following new sub-article:
"(1) The Criminal Court may, on an application made by the Director or by the probationer, cancel the order.";

Amendment of article 7 of the principal Act.

Amendment of article 10 of the principal Act.

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(b) sub-article (2) thereof shall be amended as follows:
(i) for the words "The court by which the probation order was made may," there shall be substituted the words "The Criminal Court may,"; and
(ii) in paragraph (b) thereof, for the words "the requirements of the order as amended.", there shall be substituted the words "the requirements of the order as amended:"; and immediately thereafter there shall be added the following new proviso:

Amendment of article 11 of the principal Act.

"Provided further that the Court shall appoint for hearing the application within twenty days of the filing of the said application.".

5. Article 11 of the principal Act shall be amended as follows:

(a) in sub-article (2) thereof, for the words "or more than two hundred and forty hours" there shall be substituted the words "or more than four hundred and eighty hours"; and
(b) in paragraph (a) of sub-article (3) thereof, for the words "to perform work under such an order;", there shall be substituted the words "to perform work under such an order:"; and immediately thereafter there shall be added the following new proviso:

Re-numbering

of articles 26, 27

and 28 of the principal Act.

Addition of new articles to the principal Act.

"Provided that where the court is so satisfied, it may, after considering the offender’s circumstances, dispense from the need of a written pre-sentencing report and order that a verbal report be submitted, and such verbal report shall be duly recorded in the court’s proceedings.".

6. Articles 26, 27 and 28 of the principal Act shall be re- numbered as articles 35, 36 and 37, respectively.

7. Immediately after article 25 of the principal Act, there

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shall be inserted the following new articles:
"Designation of competent authority in accordance with Framework decision.

Types of probation measures and alternative sanctions.

26. There shall be a competent authority, to be designated by order of the Minister, whose functions shall be the taking of decisions relating to probation orders and alternative sanctions, in particular, in case of non-compliance with a probation order or alternative sanctions or if the sentenced person commits a new criminal offence, in accordance with article 31(1), where Malta is either the issuing or executing State for the purposes of the mutual recognition of judgments and probation services between Member States.
27. (1) In accordance with the Framework Decision, the following probation orders and alternative sanctions shall be regulated by the competent authority:
(a) an obligation for the sentenced person to inform a specific authority of any change of residence or working place;
(b) an obligation not to enter certain localities, places or defined areas in the issuing or executing State;
(c) an obligation containing limitations on leaving the territory of the executing State;
(d) instructions relating to behaviour, residence, education and training, leisure activities, or containing limitations on or modalities of carrying out a professional activity;
(e) an obligation to report at specified times to a specific authority;
(f) an obligation to avoid contact with specific persons;
(g) an obligation to avoid contact with specific objects, which have been used or are likely to be used by the sentenced person with a view to committing a criminal offence;
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Forwarding of judgments or probation orders to competent authorities of member states where Malta is the issuing State.

(h) an obligation to compensate financially for the prejudice caused by the offence and, or an obligation to provide proof of compliance with such an obligation;
(i) an obligation to carry out community service;
(j) an obligation to cooperate with a probation officer or with a representative of a social service having responsibilities in respect of sentenced persons; and
(k) an obligation to undergo therapeutic treatment or treatment for addiction.
(2) The competent authority shall notify the General Secretariat of the Council of the European Union, when implementing the Framework Decision, which probation orders and alternative sanctions, apart from those referred to in sub-article (1), it is prepared to supervise. The General Secretariat of the Council shall make the information received available to all Member States and to the Commission.
28. (1) Where Malta is the issuing State, the competent authority shall, on its own initiative, or upon the request of the sentenced person, forward a judgment or probation order to the competent authority of the Member State in which the sentenced person is lawfully and ordinarily residing, in cases where the sentenced person has returned or wants to return to that State:
Provided that the competent authority shall only consent to the forwarding of a judgment or probation order, upon the request of the sentenced person, where the sentenced person has not committed subsequent offences and under such conditions it may deem fit to impose.
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(2) When, in applying the provisions of sub-article (1), the competent authority forwards a judgment and, where applicable, a probation order to the executing State, it shall ensure that it is accompanied by a certificate, in such form as may be prescribed by the Minister by regulations made under this article.
(3) Once the competent authority of the executing State has recognised the probation order forwarded to it and has informed the competent authority of such recognition, the competent authority in Malta shall no longer have competence in relation to the supervision of the probation order imposed, nor to take any subsequent decisions referred to in article 31(1).
(4) The competence referred to in sub- article (3) shall revert to the competent authority:
(a) as soon as the competent authority has notified the competent authority of the executing State about the withdrawal of the certificate referred to in sub-article (2), provided that supervision in the executing State has not yet begun;
(b) in cases or categories of cases to be specified by the executing State where it may refuse to assume the responsibility of supervision, in particular:
(i) in cases relating to an alternative sanction, where the judgment does not contain a custodial sentence or measure involving the deprivation of liberty to be enforced in case of non-compliance with the obligations or instructions concerned;
(ii) in cases relating to a conditional discharge; and
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Recognition of judgments and probation orders where Malta is the executing State.

(iii) in cases where the judgment relates to acts which do not constitute an offence under the law of the executing State, whatever its constituent elements or however it is described;
(c) in cases where the jurisdiction of the executing State has ended in accordance with the provisions of article 32.
29. (1) Where Malta is the executing State, the competent authority shall within sixty days of receipt of the judgment and, where applicable, the probation decision, recognise the judgment and, where applicable, the probation order forwarded, and follow the necessary procedure referred to in article 28(2), and shall without delay take all necessary measures for the supervision of the probation order, unless it decides to refuse recognition and supervision on the grounds referred to in article 30:
Provided that when, in exceptional circumstances, it is not possible for the competent authority to comply with the time limit provided for in sub-article (1), it shall immediately inform the competent authority of the issuing State by any means, giving the reasons for the delay and indicating the estimated time needed for the final decision to be taken.
(2) Where Malta is the executing State, the competent authority may postpone the decision on recognition of the judgment and, where applicable, the probation order in the situation where the certificate referred to in article 28(2) is incomplete or does not correspond to the judgment or, where applicable, the probation order, until a reasonable deadline is set for the certificate to be completed or corrected.
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Grounds for refusing recognition and supervision.

30. Where Malta is the executing State, the competent authority may refuse to recognise the judgment and the probation order and assume responsibility for supervising probation orders or alternative sanctions on the following grounds, in accordance with Article 11 of the Framework Decision:
(a) the certificate referred to in article 28(2) is incomplete or manifestly does not correspond to the probation order and has not been completed or corrected within a reasonable period set by the competent authority;
(b) the criteria set out in article
28(1) are not satisfied;
(c) the recognition of the probation order and assumption of the responsibility for supervising probation orders would be contrary to the principle of ne bis in idem;
(d) the judgment relates to acts which do not constitute an offence under the laws of Malta;
(e) the enforcement of the sentence is barred by prescription according to the laws of Malta and falls within its competence according to that law;
(f) there is immunity under the laws of Malta, which makes it impossible to supervise probation orders;
(g) under the laws of Malta, the sentenced person cannot, owing to his age, be held criminally liable for the offences in respect of which the judgment was issued;
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Jurisdiction to take all subsequent decisions and governing law where Malta is the executing State.

(h) the judgment was rendered in absentia, unless the certificate states that the person was summoned personally or informed through a representative competent according to the laws of Malta of the time and place of the proceedings which resulted in the judgment being rendered in absentia, or that the person has indicated to a competent authority that he does not contest the case;
(i) the probation order provides for medical and, or therapeutic treatment which Malta is unable to supervise in view of its legal or health- care system;
(j) the probation order is of less than six months’ duration; or
(k) the judgment relates to criminal offences which under the laws of Malta are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory.
31. (1) Where Malta is the executing State, the competent authority shall have jurisdiction to take all subsequent decisions relating to a probation order or alternative sanction, in particular in case of non- compliance with a probation order or alternative sanction or if the sentenced person commits a new criminal offence. Such subsequent decisions may include:
(a) the modification of obligations or instructions contained in the probation order or alternative sanction or the modification of the duration of the probation period;
(b) the revocation of the suspension of the execution of the judgment or the revocation of the decision regarding an alternative sanction; and
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(c) the imposition of a custodial sentence or measure involving deprivation of liberty in case of an alternative sanction.
(2) If the nature or duration of the relevant probation order or the probation period are incompatible with the laws of Malta when Malta is the executing State, the competent authority may adapt them in line with the nature and duration of the probation orders or duration of the probation period, which apply under the laws of Malta, to equivalent offences. The adapted probation order, alternative sanction or duration of the probation period shall correspond as far as possible to that imposed in the issuing State:
Provided that where the probation order, alternative sanction or probation period has been adapted because its duration exceeds the maximum duration provided for under the laws of Malta, where Malta is the executing State, the duration of the adapted probation measure, alternative sanction or probation period shall not be below the maximum duration provided for equivalent offences under the laws of Malta:
Provided also that the adapted probation order, alternative sanction or probation period shall not be more severe or longer than the probation order, alternative sanction or probation period which was originally imposed.
(3) Where Malta is the executing State, the competent authority shall without delay inform the competent authority of the issuing State, by any means which leaves a written record, of all the decisions taken on:
(a) the modification of the probation order or alternative sanction;
(b) the revocation of the suspension of the execution of the judgment or revocation of the decision on alternative sanction;
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End of jurisdiction of the executing State.

(c) the enforcement of a custodial sentence or measure involving deprivation of liberty, because of non-compliance with a probation order or alternative sanction;
(d) the lapse of the probation order or alternative sanction.
(4) If so requested by the competent authority of the issuing State, the competent authority shall inform it of the maximum duration of deprivation of liberty that is foreseen in the national laws of Malta for the offence which gave rise to the judgment and that could be imposed on the sentenced person in case of breach of the probation order. This information shall be provided immediately after receipt of the judgment and where applicable, the probation order, together with the necessary certificate set out in article 28(2).
32. (1) Where Malta is the executing State, if the sentenced person absconds or no longer has a lawful residence in Malta, the competent authority may transfer the jurisdiction in respect of the supervision of all further decisions relating to the judgment back to the competent authority of the issuing State.
(2) If new criminal proceedings against the person concerned are taking place in the issuing State, the competent authority of the issuing State may request the competent authority to transfer jurisdiction in respect of the supervision of the probation order and in respect of all further decisions relating to the judgment back to it.
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Information from the executing State in all cases.

(3) When, in the application of this article, jurisdiction is transferred back to the issuing State, the competent authority of that State shall resume jurisdiction. For the further supervision of the probation orders or alternative sanctions, the competent authority of the issuing State shall take account of the duration and degree of compliance with the probation orders or alternative sanctions in Malta, as well as of any decisions taken by Malta in accordance with article 31(3).
33. Where Malta is the executing State, the competent authority shall, in accordance with Article 18 of the Framework Decision, without delay inform the competent authority of the issuing State, by any means which leaves a written record, of:
(a) the transmission of the judgment and, where applicable, the probation order, together with the certificate referred to in article 28(2) to the competent authority responsible for its recognition and for taking the ensuing measures for the supervision of the probation order and where it has no competence to recognise it and take the said measures for the supervision, it shall, ex officio, forward it to the competent authority of the issuing State;
(b) the fact that it is in practice impossible to supervise the probation measures or alternative sanctions for the reason that, after transmission of the judgment and, where applicable, the probation order, together with the certificate referred to in article 28(2), to Malta, the sentenced person cannot be found in the territory of Malta, in which case Malta shall be under no obligation to supervise the probation order;
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Consultations between competent authorities.

(c) the final decision to recognise the judgment and, where applicable, the probation decision and to assume responsibility for supervising the probation order;
(d) any decision not to recognise the judgment and, where applicable, the probation order and to assume responsibility for supervising the probation order in accordance with article 31(2), together with the reasons for the decision;
(e) any decision to adapt the probation order in accordance with the provisos to article 31(2), together with the reasons for the decision;
(f) any decision on amnesty or pardon granted by the issuing or executing State which leads to not supervising the probation order, together, where applicable, with the reasons for the decision.
34. Where and whenever it is felt appropriate, the competent authority shall consult with the competent authority of another Member State being the issuing State or the executing State as the case may be, with a view to facilitating the smooth and efficient application of the Framework Decision.".

Objects and Reasons

The objects of this Bill are to transpose the provisions of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principal of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions into the laws of Malta, and more specifically into the Probation Act (Cap. 446) and to introduce further amendments to the said Act.