A conviction that omits the offence's article is null

The Court of Criminal Appeal, presided by Mr Justice Neville Camilleri, decided Il-Pulizija vs A.C. on 15 July 2026. The two appellants had been convicted of smuggling duty-free cigarettes and of two Criminal Code offences, but the first court's decision cited only the customs, excise and VAT provisions.

The appeal court held that the omission of the Criminal Code articles breaches article 382 of the Criminal Code, annulled the judgment and remitted the acts so that the Court of Magistrates could pronounce judgment afresh.

The facts

On 22 February 2016 police and customs officers searched a car at Palumbo Shipyard and found 300 cartons of cigarettes, 60,000 cigarettes in all, said to have been landed from a vessel without payment of duty.

The two accused, A.C. and K.B., were charged, at the request of the Director General of Customs, with landing, receiving and concealing the cigarettes with intent to defraud the Government of duty, excise and VAT, under the Customs Ordinance (Chapter 37) and the Excise Duty Act (Chapter 382), and, at the request of the Director General of Tax, under article 80 of the VAT Act (Chapter 406).

Two further charges came from the Criminal Code: knowingly making a false declaration in a document intended for a public authority to obtain an advantage, and refusing or giving false particulars to a public officer in the discharge of his duties.

On 4 May 2026 the Court of Magistrates found each accused guilty of the charges brought against him, after seeing the articles of Chapters 37, 382 and 406 only, and condemned each to €40,595.40 representing unpaid duty, excise and VAT, a further fine of €4,000, and two years' imprisonment suspended for two years under article 28A, with confiscation of the cigarettes and the car and expert costs of €2,638.42 shared equally.

Both accused appealed on four grounds: nullity of the judgment, wrong appreciation of the evidence, a constitutional reference on the way the pecuniary penalty is computed, and excess of punishment. At the hearing of 1 July 2026 counsel agreed that the court could decide the first ground alone.

What the court held

The court started from article 382 of the Criminal Code: the court, in giving judgment against the accused, "għandha tgħid il-fatti li tagħhom dan ikun ġie misjub ħati, tagħti l-piena u ssemmi l-artikolu ta' dan il-Kodiċi jew ta' kull liġi oħra li tkun tikkontempla r-reat" (must state the facts of which he has been found guilty, award the punishment and cite the article of this Code or of any other law contemplating the offence).

Reading the operative part of the appealed judgment, the court noted that the articles of Chapter 9 were not mentioned at all, although the appellants had been charged with two Criminal Code offences and had been found guilty of them.

The court then applied a Court of Criminal Appeal judgment of 27 April 2006.

That judgment held that stating the facts means saying exactly and expressly of which offences the accused is found guilty, not reviewing the evidence, and that by the constant case law of the court, failure to observe article 382 strictly "jimporta n-nullita' tas-sentenza appellata" (entails the nullity of the appealed judgment), because it is the omission of a substantial formality within article 428(3) of the Criminal Code.

Citing the wrong article, or the wrong law, is treated as citing none, and the court may raise the defect ex officio even without a ground of appeal. Although the facts of that case were not identical, the first court's failure to cite the Chapter 9 articles for the Chapter 9 charges led this court to adopt the same teaching. The first ground was upheld and the remaining grounds were not examined.

On the consequence the court again followed the 2006 judgment: nullity is limited to the judgment, and "kull parti oħra preċedenti tal-proċeduri kontra l-appellant tibqa' bla mittiefsa" (every earlier part of the proceedings against the appellant remains untouched), so the first court need only pronounce judgment again in compliance with article 382, and the accused is put back in the position he was in immediately before the annulled judgment.

The court noted that it had done the same in a Court of Criminal Appeal judgment of 1 June 2011. It annulled the judgment and remitted the acts to the Court of Magistrates for a new judgment according to law, expressly to preserve the parties' benefit of a double examination.

Why it matters

Read the operative part before advising on an appeal: a judgment that convicts of "the charges" but cites articles for only some of them is null, and the point can be taken even where the client has no substantive defence.

The remedy is a re-pronouncement, not an acquittal, so the client returns to the moment before sentence with the evidence intact. For magistrates and prosecutors, the case is a reminder that every offence on the charge sheet needs its own article in the decision, and that a wrong article is as bad as none.

Where it sits

Article 382 of the Criminal Code fixes the minimum content of a judgment of the Court of Magistrates: facts, punishment and the article creating the offence.

The judgment applies the line summarised in the Court of Criminal Appeal's judgment of 27 April 2006, which itself relied on the Court of Criminal Appeal's decisions of 24 April 2002, 28 June 2002, 10 July 2002, 9 September 2002, 25 September 2003, 14 September 2004, 19 May 2005 and 2 February 2006 on nullity, on its decision of 3 February 1995 that a wrong article equals no article, and on its decisions of 26 May 1994 and 6 January 2005 that the defect may be raised ex officio.

The nullity is one of substantial formality under article 428(3). The remittal follows the Court of Criminal Appeal's judgment of 1 June 2011. The substantive charges under Chapters 37, 382 and 406, and the constitutional question the appellants raised about a penalty computed on a valuation made by the Customs authorities, were left for the fresh judgment.

Source

Court of Criminal Appeal (Inferior), 3019/2026/1, 15 July 2026, 3019/2026/1.