Continuing offence charges need no separate verdict

The Court of Criminal Appeal (Inferior), presided by Mr Justice Neville Camilleri, gave judgment on 24 June 2026 in Il-Pulizija vs C.M., an appeal from a conviction for noise from a bar. The court holds that a charge of continuing offence under article 18 of the Criminal Code is not a separate offence, so a first court's silence on it does not make the judgment null.

It also holds that prosecutions for the same conduct over different periods do not found a plea of ne bis in idem.

The facts

C.M. runs a bar that forms part of a hotel in a tourist area. Neighbouring residents reported that music and karaoke went on daily until midnight and later. He faced seven charges covering 2011 to 2024, among them noise from a commercial activity in an urban zone between 23:00 and 09:00, disturbing the repose of others at night, harassing four residents, and a seventh charge that the acts formed a continuing offence.

On 17 April 2026 the Court of Magistrates (Malta) as a Court of Criminal Judicature found him guilty on five charges, abstained on another, and fined him €7,500 in total, with an order under article 321(1) of the Criminal Code to stop loud noise reaching the surrounding streets. That court delivered ten judgments on the same premises that day, separated by source of noise and by period.

What the court held

Article 382 of the Criminal Code requires a court that convicts to state the facts found proved, the punishment and the article that creates the offence. The first court never ruled on the seventh charge. The appeal court finds that the charge "ma tikkostitwixxiex reat awtonomu u distint mill-imputazzjonijiet l-oħra iżda hija sempliċement riferiment għaċ-ċirkostanza tar-reat kontinwat" (does not constitute an autonomous offence distinct from the other charges but is simply a reference to the circumstance of continuing offence).

That circumstance bears on punishment and on the accumulation of offences. Since the first court decided the substantive offences beneath it, article 382 is not breached.

On ne bis in idem, the court sets out article 527 of the Criminal Code, article 39(9) of the Constitution and article 4 of Protocol 7 to the European Convention on Human Rights. It adopts a constitutional ruling that simultaneous prosecutions for the same offence over different periods cannot support the plea.

The first court had separated the bar from the hotel pool area and one period from another, and the appellant never produced the other judgments. In any event, "huwa meħtieġ illi jkun hemm sentenza finali preċedenti dwar l-istess reat u l-istess fatti" (there must be a previous final judgment on the same offence and the same facts), and there was none.

The court rejects the claim that the witnesses spoke only in general terms: four residents gave detailed accounts and one produced video recordings of the noise. Their testimony and an establishment details document prove the urban zone required by item 9 of the Second Schedule to Subsidiary Legislation 441.07.

Article 638(1), which opens with the words "In general", did not oblige the prosecution to call an expert to measure the noise. The best evidence rule "ma timponix obbligu assolut li titressaq kull forma possibbli ta’ prova jew li jinħatar espert f’kull każ" (does not impose an absolute duty to produce every possible form of proof or to appoint an expert in every case).

On punishment, the court does not disturb a sentence that falls within the law and is neither wrong in principle nor manifestly excessive, and it finds the fine within those limits. It rejects all five grounds.

Why it matters

A nullity plea cannot rest on a first court's silence about a continuing-offence charge if it decided the offences underneath. A ne bis in idem defence in a series of prosecutions for repeated conduct needs a final judgment on the same facts and period, and that judgment must be in the record. Prosecutors in noise cases can prove disturbance through detailed resident testimony and recordings without a sound-level expert.

Where it sits

Article 18 of the Criminal Code treats several acts at different times, breaching the same provision under one resolution, as a single continuing offence for punishment. The judgment places it as a circumstance of the charged offences, not an offence of its own. Ne bis in idem runs on three levels in Maltese law, the Code, the Constitution and the Convention, and each looks back to a prior final acquittal or conviction, not to a pending prosecution.

For the rule on different periods the court relies on the First Hall of the Civil Court (Constitutional Jurisdiction), 30 September 2025, on a reference from the Court of Magistrates. On review of evidence it cites the Court of Criminal Appeal of 31 July 2008: the appeal court intervenes only if the first court could not reasonably and legally reach its conclusion.

On article 638(1) it cites the same court on 31 July 2018, and on police investigation without a court expert, on 30 September 2020. On sentence it cites the same court on 5 December 2019 and 24 September 2009, and the Court of Criminal Appeal (Superior) of 25 August 2005.

Source

Court of Criminal Appeal (Inferior), 1202/2025/1, 24 June 2026.