A comparative study of the recent developments in the Institute of Bail following the 2002 amendments to the Criminal Code

Abstract

The significance of criminal law is often said to lie in the fact that it is concerned with the liberty of the subject and it is precisely by bail and sentencing decisions that freedom can be taken away. Liberty and security of persons are the rule and any derogation ought only to be considered of exceptional in nature. This notwithstanding, bail decisions affect people entitled to be presumed innocent until proven guilty. Thus, it is a subject in which all legal criminal law practitioners must be thoroughly versed. Throughout this thesis I have humbly attempted to evaluate the considerations which are borne in mind when a decision regarding bail is made. Thus, I have concentrated primarily on that area regarding the recent developments in our law vis-a-vis the criteria to be adhered to in making such a decision. My prime area of concern was the position prevailing in Malta following Act Ill of 2002. Furthermore, a detailed assessment of the approach adopted by the Strasbourg Institutions was considered indispensable for the obvious reason that such an approach has a direct bearing on Maltese Law. Similarly it was felt necessary to examine the position prevailing in the United Kingdom since the main source with regards to Maltese Law on Bail was the U.K. Bail Act of 1976. Finally, a brief outline of the Italian system was considered relevant in that preventive detention is the extrema ratio - the most severe precautionary measure. Thus pre-trial detention can only be applied in exceptional circumstances and only if the other lighter measure prove inadequate.