An informal plea deal with police binds no one

The Civil Court, First Hall, sitting in its constitutional jurisdiction under Mr Justice Giovanni M. Grixti, decided on 5 August 2026 an application by S.N. against the Attorney General and the State Advocate.

The applicant said that he had admitted charges before the Court of Magistrates on an informal understanding with the prosecuting inspector that no prison term would be sought, that the Attorney General had then appealed, and that the Court of Criminal Appeal had sentenced him to fourteen months' imprisonment. He claimed a breach of his right to a fair hearing under article 39 of the Constitution and article 6 of the Convention and asked for immediate release.

The court found no breach and dismissed the application with costs.

The facts

The applicant was arraigned under arrest in June 2024 on charges of breaching bail conditions imposed by three separate decrees, possession of cocaine in circumstances showing it was not for his exclusive use, and driving without a licence and without insurance. He admitted all charges. On 2 June 2024 the Court of Magistrates fined him, placed him under a three-year probation order and a treatment order, and suspended his driving licence.

The Attorney General appealed. During the appeal the applicant asked the Court of Criminal Appeal to sit as a Drug Court under article 8 of Chapter 537, but did not appear at the sitting fixed to hear evidence on that request, which was refused.

On 6 March 2026 the Court of Criminal Appeal annulled the first judgment of its own motion, because it had not indicated the articles of law for the drug charge, and, on the admission already recorded, found him guilty and sentenced him to fourteen months' effective imprisonment, noting that imprisonment for that charge was mandatory under article 22(9) of Chapter 101.

The constitutional application followed on 21 May 2026.

What the court held

The court disposes of the preliminary pleas briefly: both defendants are legitimate contradictors, the Court of Criminal Appeal could not have decided this complaint, and the action is about the Attorney General not honouring an alleged informal agreement rather than about the right of appeal itself.

On the merits the court records a conflict of evidence: the inspector denied any agreement and said she had told the court of the applicant's cooperation and drug problem and had not insisted on prison, while defence counsel said submissions on an appropriate punishment had been made. The court finds that whatever passed between them, the Court of Magistrates could never have disposed of the case as it did, because the law required a penalty within different parameters.

It concludes that «dan ir-rikors ma hu xejn għajr forma ta' appell fuq l-appell, ħaġa din li mhix konċessa fil-liġi tal-pajjiż» [this application is nothing but a form of appeal on the appeal, which the law of the country does not allow].

The court then sets out the law. Formal plea bargaining before the Court of Magistrates was introduced by Act IV of 2014 in article 392A(5) of the Criminal Code: the accused and the Attorney General may reach agreement and ask the court, by application, to apply the agreed sanction if the accused pleads guilty. Subarticle (6), added by Act VIII of 2015, forbids the court to take account of any agreement not made under subarticle (5).

Subarticle (8) obliges a court that disagrees with the bargain to say so and let the parties make submissions, as the Court of Criminal Appeal applied on 19 June 2024 when it annulled a sentence heavier than the one agreed. The applicant's complaint is not that the Court of Magistrates exceeded what was agreed, but that formal bargaining is not used when the police prosecute.

The court answers that «l-liġi tirrikjedi li l-unika forma ta' patteġġjament li jiswa' huwa dak formali» [the law requires that the only form of plea bargain that counts is the formal one]. When arraigned under arrest he could have proceeded by way of the examination procedure and approached the Attorney General with a joint application; he chose the quickest and most informal path instead.

The court cannot exercise its constitutional power in favour of a person who had a provision of law at his disposal and chose not to use it.

The court adds one observation it does not act on: after raising the nullity of the first judgment of its own motion, the Court of Criminal Appeal did not give the parties the chance to be heard on it, which sits uneasily with the rule that a court must not surprise the parties; but that was not the complaint before it.

Why it matters

Defence counsel before the Court of Magistrates should treat an understanding with the prosecuting inspector as worthless: only a joint application with the Attorney General under article 392A(5) binds, and subarticle (6) tells the court to ignore anything else. Where a mandatory custodial penalty applies, no arrangement with the police can displace it and the Attorney General will appeal. The observation about the unheard nullity point is a ground to plead expressly in a future case.

Where it sits

The case applies the fair-hearing guarantee of article 39(1) and article 6(1) to plea bargaining under article 392A of the Criminal Code, and the rule that a constitutional court is not a further tier of appeal. The judgment names the Court of Criminal Appeal's decisions of 2 July 2008, of 13 July 2012 on informal bargains and the duty to avoid surprise, and of 19 June 2024 on subarticle (8).

Source

Civil Court, First Hall (Constitutional Jurisdiction), 163/2026, 5 August 2026: 163/2026