An analysis of Article 30A of the dangerous drugs ordinance including the suspension or otherwise of the application of Article 661 of the criminal code

Abstract

Article 661 of the Criminal Code provides that confessions shall not operate to the prejudice of third parties. However, article 30A of the Dangerous Drugs Ordinance serves as a lex specialis, derogating from this principle by allowing such prejudicial statements to be admitted against third parties and co-accused persons. As codified, article 30A does not reflect the procedural safeguards expected in 2025, especially considering evolving human right standards. This dissertation examines the judicial safeguards developed by Maltese courts to ensure that such statements may still be used without breaching the right to a fair trial. Chapter 1 introduces article 30A as a legislative response to the practical challenges of prosecuting serious drug offences. It situates the provision within a broader context of special evidentiary measures aimed at strengthening such prosecutions. Chapter 2 analyses Maltese case law, outlining how the courts have addressed the admissibility of co-accused statements, culminating in Ir-Repubblika ta’ Malta v Malcolm Joseph Falzon, which sets out twelve interpretative principles governing article 30A. Chapter 3 offers a comparative analysis of England, Italy and the United States. It examines how each system regulates the use of coaccused statements, including whether they allow incriminating and exculpatory statements, the role of confrontation and relevant procedural safeguards. Chapter 4 assesses the compatibility of article 30A with the European Court of Human Rights Standards and also focuses on cross-examination and the admissibility of anonymous witnesses. The conclusion suggests that clearer legislative guidance is now appropriate. It proposes either codifying the Falzon principles within article 30A, or abrogating article 30A and transplanting its rationale in article 661, while adding a new provision article 661A to also allow co-accused statements to be used for exculpatory purposes.