A probation order does not count towards recidivism

The Court of Criminal Appeal, presided by Madam Justice Natasha Galea Sciberras, held on 30 January 2026 that a person placed on probation cannot be found a recidivist on the strength of that judgment. In Il-Pulizija vs G.C., the court also rejected a plea that the committal proceedings were null because an inspector who had not investigated the case confirmed the charges on oath. It upheld the appeal in part and reduced the prison term from four years to three.

The facts

The Court of Magistrates (Malta), sitting as a court of criminal judicature, gave judgment on 20 February 2023. It found G.C. guilty of causing grievous bodily harm to a woman, threatening her, breaching the public peace and taking up a weapon, a hammer, against her.

The first court also found her guilty of breaching a probation order under article 7 of the Probation Act (Chapter 446 of the Laws of Malta), and of being a recidivist under articles 49 and 50 of the Criminal Code (Chapter 9 of the Laws of Malta). It sentenced her to four years in prison.

Acting under article 23(1)(a) of the Probation Act, the first court also revoked the earlier probation order and added four months for the offences it covered. G.C. appealed on nullity, on the recidivism and probation findings, and on the sentence.

What the court held

The appellant argued that only the original prosecuting inspector could confirm the charges on oath under article 390(1) of the Criminal Code. When the committal was restarted in 2019 at the request of the Attorney General, another inspector, with no part in the investigation, read and confirmed them.

The court rejected the argument. Relying on the Court of Criminal Appeal (Superior Jurisdiction) (29 May 2008), it held that the sworn report under article 390(1) is the charge the prosecuting officer brings and then undertakes to support with evidence.

The original inspector had left the police force and no longer represented the Commissioner of Police, so another officer could confirm the report, once someone had done the minimum investigation. The court found that "xejn ma kien jimpedixxi lill-istess Spettur li jaqra r-rapport tal-Pulizija dwar il-każ qabel jaħlef l-akkużi" (nothing stopped the same inspector from reading the police report on the case before swearing to the charges).

The appellant had also raised no objection at that sitting. Her lawyer had instead exempted the court from hearing the prosecution witnesses again.

On recidivism, the court held that the handwritten addition to the charge sheet was valid, because the prosecuting inspector had initialled it before reading the charges. It also held that identity was proved, because the particulars in the earlier judgment matched those of the appellant.

The prosecution, however, brought no evidence that the earlier judgment had become final when the new offences were committed. The court held that it cannot rely on the criminal record for that fact, because the record is not always correct or up to date.

The decisive point was that the earlier judgment had placed the appellant on probation for three years. Article 49 makes a person a recidivist who commits another offence after being sentenced by a judgment that has become final. Article 25(1) of the Probation Act deems a finding of guilt followed by a probation order not to be a conviction, save for two exceptions that did not apply.

The court held: "L-appellanti ma setgħetx tinstab ħatja mill-Ewwel Qorti tal-addebitu tar-reċidiva la darba bis-sentenza mogħtija fil-konfront tagħha ... hija tqiegħdet taħt Ordni ta' Probation" (the first court could not find the appellant a recidivist, since by the judgment given against her ... she was placed under a probation order). For the same lack of proof of finality, it also cleared her of breaching the probation order.

On sentence, the court applied the settled test. It does not disturb a punishment unless the appellant shows that it is wrong in principle or manifestly excessive.

The court agreed with the first court that effective imprisonment was right. The appellant had a long criminal record and had been given conditional discharges, probation orders and suspended sentences. The first court found that the violence caused grievous injuries without provocation.

Because the appellant was cleared of the fifth and sixth charges, the court reduced the term to three years' effective imprisonment. It also revoked the four-month term for the earlier probation offences.

The court refused to acquit her of the first four charges. The appeal gave no reasons against those findings, as article 419(1)(b) of the Criminal Code requires, and the court cannot guess at a grievance.

Why it matters

A prosecutor who charges recidivism must prove that the earlier judgment was a conviction and was final when the new offence was committed. A probation order is not enough, and the criminal record is not proof of finality. Defence lawyers should check what order the earlier judgment made before conceding recidivism, and should give reasons for every finding they appeal.

Where it sits

Recidivism under articles 49 and 50 of the Criminal Code raises the punishment of a person who offends again after a final conviction. The Probation Act cuts across that rule. It deems a finding of guilt followed by a probation order not to be a conviction, save in the cases article 25(1) lists.

The court followed the Court of Criminal Appeal (17 September 2004), which reached the same result on a probation order. On sentence, it relied on the Court of Criminal Appeal (Superior Jurisdiction) (25 August 2005 and 26 February 2009).

Source

Court of Criminal Appeal, Il-Pulizija vs G.C., 30 January 2026: 744/2018/1