Paying arrears on appeal can turn prison into a fine

The Court of Criminal Appeal (Inferior Jurisdiction) on 11 May 2026 held that a person found guilty of a continuing failure to pay maintenance can be sentenced to up to three months' imprisonment. Madam Justice Consuelo Scerri Herrera rejected P.A.'s plea that his sentence was null because prison is not a punishment for a contravention. She then replaced the three months' imprisonment with a €150 fine, because the arrears had been paid in full before the appeal was decided.

The facts

P.A. was charged with failing, between October 2023 and February 2024, to pay the maintenance fixed by a court order or contract within 15 days of the due date. The prosecution charged the failure as a continuing offence. He was also charged with breaching the conditions of a conditional discharge imposed by the Court of Criminal Appeal on 23 February 2023 under article 22 of Chapter 446 of the Laws of Malta.

On 9 March 2026 the Court of Magistrates (Malta) as a Court of Criminal Judicature found him guilty of the first charge on his own admission. It sentenced him to three months' imprisonment. For the second charge, it sent him before the court that made the conditional discharge order, under article 23(1)(b) of Chapter 446.

P.A. appealed on 24 March 2026. At a sitting on 7 May 2026, the injured party declared that she had been paid and had no further interest in the case. The parties stated that the sum due had been €2,365.

What the court held

P.A. argued that the judgment was null under article 382 of the Criminal Code (Chapter 9 of the Laws of Malta). Article 7(2) limits the punishments for contraventions to detention, a fine (ammenda) and a reprimand or admonition, so, he argued, prison could not be imposed.

The court first recalled that not every irregularity in a judgment of the Court of Magistrates leads to nullity. The requirements of article 382 are essential to validity, but they are read strictly, so that the presumption of validity of the judgment is preserved where possible.

The court then held that the plea failed. P.A. was found guilty of a continuing offence under article 18, which allows the punishment to rise by one or two degrees. Article 31(1)(g) provides that “it-tlugħ mill-pieni stabbiliti għall-kontravvenzjonijiet isir għall-piena tal-multa jew ta’ priġunerija għal żmien ta’ mhux iżjed minn tliet xhur” (the increase from the punishments for contraventions is to a fine or to imprisonment for not more than three months).

Three months' imprisonment therefore fell within the law, and the court rejected the first ground. It relied on article 7(5) to reject a second, related ground that imprisonment can only follow a crime, not a contravention.

The third ground, that the punishment was excessive, succeeded. The court recalled that, as a rule, it does not disturb a punishment within the law unless it is disproportionate. It held, however, that the payment of the maintenance recorded on 7 May 2026 had to be taken into account.

The court followed the Court of Criminal Appeal (25 September 2003), which held that the legislator's main aim in creating this contravention was to put pressure on people reluctant to pay maintenance, not only to punish breaches of court orders. In the circumstances, the court found that a prison sentence “ma tiswa xejn lil ħadd” (serves no one). It would not help society, the administration of justice or the appellant's reform, and it could only undo the settlement the parties had reached.

The court allowed the appeal on sentence. It struck out the three months' imprisonment, imposed a total fine (ammenda) of €150 payable at €50 a month, and left the rest of the judgment in place. If one monthly payment is missed, the whole balance falls due at once.

Why it matters

A continuing maintenance default can lead to a short prison term, so a nullity plea built on article 7(2) alone will fail.

The practical defence is payment. Clearing the arrears, even at the appeal stage, gives the court a reason to replace imprisonment with a fine, because the purpose of the contravention has been met.

Where it sits

Failing to pay maintenance within 15 days of the due date is a contravention under article 338(z) of the Criminal Code. Contraventions carry lighter punishments than crimes. Article 18 on continuing offences and the scale of increases in article 31 allow a higher punishment when several acts breach the same provision under a single resolution.

On nullity, the court relied on the Court of Criminal Appeal (3 March 2008) and (6 December 2022). It also referred to a line of appeal judgments from 1965 to 2019 holding that the requirements of article 382 go to the validity of a judgment and must be observed scrupulously.

On sentence, the court followed the Court of Criminal Appeal (25 September 2003), (29 April 2025) and (19 July 2013). Those judgments treat payment of the maintenance due as the aim of the prosecution, and a reason to temper the punishment once it is achieved.

Source

Court of Criminal Appeal (Inferior Jurisdiction), 11 May 2026, 9711/2024/1