Attempt conviction without the attempt article is null

The Court of Criminal Appeal (Inferior Jurisdiction), presided by Madam Justice Consuelo Scerri Herrera, delivered judgment in Il-Pulizija vs R.S. on 17 March 2026. It annulled a judgment of the Court of Magistrates (Malta) because the accused had pleaded guilty to attempted fraud, but the judgment did not cite article 41 of the Criminal Code, which governs attempts. It sent the record back so the first court could deliver judgment again.

The facts

The appellant engaged Sherries Estates Holding Limited for work costing €4,525. According to his own appeal application, he gave the company a proof of payment from a foreign bank, the company provided the service and the payment never arrived. The company reported him to the police, suspecting the document was forged.

He was arraigned under arrest on 15 February 2026. The charge sheet in Maltese accused him of fraud under articles 308, 309 and 310B of the Criminal Code (Chapter 9 of the Laws of Malta). He told the court he did not understand Maltese, so the proceedings were held in English.

The prosecuting officer read out charges in English that accused him of attempting those offences, and he pleaded guilty to them. The court gave him time to reconsider his plea and adjourned for judgment.

On 19 February 2026 the first court found him guilty on his own admission. Its judgment cited articles 7, 8, 18, 31, 308, 309 and 310(1)(b), but not article 41. It sentenced him to two years’ imprisonment suspended for three years under article 28A and ordered him to pay the company €4,525 under article 15A.

What the court held

The appellant raised two grounds. He argued that charges of attempt did not match the facts of a completed fraud, so he could not be found guilty despite his plea, and he relied on the Court of Magistrates (16 May 2018). He also argued that the punishment was excessive because he had paid the company before the proceedings and pleaded guilty at the first opportunity.

At the sitting of 26 February 2026 the Attorney General raised a different point. He submitted that the judgment was null because it punished the appellant for the completed offence, although he was charged with, and admitted, only the attempt. The parties asked the court to decide that point first.

The court relied on article 382. When the Court of Magistrates delivers judgment against the accused, it must state the facts of which he is found guilty, award punishment and quote the article of law creating the offence.

Following the Court of Criminal Appeal (27 April 2006), the court held that failing to observe article 382 strictly is a breach of a substantial formality under article 428(3), which entitles the appeal court to annul the judgment. Citing a wrong article counts the same as citing none, and the appeal court may raise the defect of its own motion.

The court noted that the 2006 case was not identical. It found that the failure to cite the article creating the attempt, for both charges, left it with “no option other than embracing” that line. It therefore did not need to consider the appellant’s grounds.

It also cited the Court of Criminal Appeal (6 December 2022). A Court of Magistrates must keep the body of its judgment, its reasons and its operative part in harmony, so that the accused sees clearly what he is found guilty of and what follows from it.

The nullity does not reach the whole proceedings. The court held, following the 2006 judgment, that “kull parti oħra preċedenti tal-proċeduri kontra l-appellant tibqa’ bla mittiefsa” (every other earlier part of the proceedings against the appellant stays untouched).

Of its own motion, the court revoked the judgment and remitted the record to the first court. The appellant returns to where he stood just before judgment, the parties keep their right to two levels of examination, and a new judgment is to be delivered according to law.

Why it matters

When an accused pleads guilty to an attempt, lawyers on both sides should check that the judgment cites article 41 as well as the article creating the offence. Without it, the punishment rests on the completed offence, and the judgment can be annulled on appeal even without a ground raising the point. The remedy is a fresh judgment, not an acquittal, so the earlier proceedings, including the plea, remain in place.

Where it sits

Under article 41(1)(a), an attempted crime carries the punishment for the completed crime decreased by one or two degrees, so the attempt article changes the range. Article 382 sets three requirements for any judgment against the accused, and the Court of Criminal Appeal has annulled many judgments that miss one of them.

The court applied the remedy used by the Court of Criminal Appeal (1 June 2011): only the judgment falls, and the first court decides again. The 2006 judgment it followed listed earlier appeals to the same effect, including the Court of Criminal Appeal (25 September 2003), (9 September 2002), (24 April 2002) and (2 February 2006).

On the rule that a wrong article counts as none, the 2006 judgment cited the Court of Criminal Appeal (3 February 1995). On raising the point of its own motion, it cited the Court of Criminal Appeal (26 May 1994) and (6 January 2005).

Source

Court of Criminal Appeal (Inferior Jurisdiction), 17 March 2026, 161/2026/1