drug dependence (treatment not imprisonment) act, 2014 - bill · 2015-03-09 · c 1165 a bill...

C 1165

A Billentitled

AN ACT to provide for the treatment of persons in possession ofsmall quantities of prohibited drugs for personal use and for othermeasures for the rehabilitation of persons suffering from drugdependence.

BE IT ENACTED by the President, by and with the advice andconsent of the House of Representatives, in this present Parliamentassembled, and by the authority of the same as follows:-

Short title and commencement.

1. (1) The short title of this Act is the Drug Dependence(Treatment not Imprisonment) Act, 2014.

(2) This Act shall come into force on such date as the Ministermay by Order in the Gazette establish and different dates may beestablished in respect of different provisions or purposes of this Ac

Interpretation2. In this Act, unless the context otherwise requires:

Cap. 291.

"conviction" also includes the voluntary payment of a penaltywithout proceedings as provided under this Act or under theCommissioners for Justice Act;

VERŻJONI ELETTRONIKA

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Cap. 31.

Cap. 101.

"drug laws" means the Medical and Kindred ProfessionOrdinance and the Dangerous Drugs Ordinance.

"Minister" means the Minister responsible for Justice;

Cap. 31.

Cap. 101.

"prohibited drug" means any drug which may form the object ofcriminal proceedings under article 120A of the Medical and KindredProfessions Ordinance or under article 22 of the Dangerous DrugsOrdinance;

Application of this Act.

3. (1) Subject to the provisions of sub-article (2), theprovisions of this Act, including the procedures, measures andpunishments provided in this Act in respect of offences against thedrug laws, shall apply notwithstanding and to the exclusion of theprovisions of the drug laws.

(2) The drug laws shall continue to apply except in respect ofany matter explicitly provided for in this Act.

Possession for personal use of prohibited drug.

Cap. 291.

4. (1) Where a charge for breach of the drug laws consistsof a charge of possession of a prohibited drug in a quantity of lessthan two grams or two ‘ecstacy’ or similar pills, irrespective of purity,in circumstances which do not give rise to reasonable grounds tobelieve that the prohibited drug is not for personal use by the personin possession thereof, that person shall be tried in accordance with theCommissioners for Justice Act and shall be liable, on conviction bythe Commissioner for Justice, hereinafter referred to as "theCommissioner", assigned by the Minister to hear drug offence cases,to a penalty of between seventy-five euro (€75) and one hundred andtwenty-five euro (€125).

(2) Notwithstanding the provisions of sub-article (1), wherethe prohibited drug in respect of which a person is charged accordingto sub-article (1) consists of the drug cannabis or of cannabis resin,the penalty applicable shall be of between fifty euro (€50) and onehundred euro (€100).

(3) Where, in proceedings commenced before theCommissioner in terms of sub-articles (1) or (2) a question arises asto whether a substance constitutes a prohibited drug, theCommissioner shall refer such question to the Drug OffendersRehabilitation Board which shall report back on its findings to theCommissioner.

(4) Any prohibited drugs confiscated or exhibited in thecourse of proceedings before the Commissioner in terms of sub-articles (1) or (2) shall be sent by the Registrar of the Tribunal to theRegistrar of the Criminal Court for destruction. Due record shall be


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kept of such sending.

(5) Where a person charged with an offence as provided for insub-articles (1) or (2) is a person not habitually resident in Malta anypenalty due in terms of the provisions of the said sub-articles shall,unless the charge is contested, be paid in its minimum throughelectronic means and without proceedings before the Commissioner,at any place and in such manner as may be established by theMinister. Such payment may only be made through credit card orother bank transfer within twelve hours from the time when the saidperson is notified of the charge during which time the ExecutivePolice shall have the power to keep the said person in detention untilpayment is made:

Provided that where a charge to which this sub-articleapplies is contested or where no payment of the penalty as providedabove in this sub-article is made, the provisions of this Act shall ceaseto apply in respect of the person to be charged and the case shallproceed in accordance with the provisions of the drug laws.

For the purposes of this sub-article "contested" meansgiving notice of contestation even if verbally.

Second offence with a period of two years.

Cap. 291

5. (1) In the case of a second or subsequent conviction forpossession of a prohibited drug for personal use within a period oftwo years from the date of the first conviction the offender shall alsobe tried before a Commissioner for Justice appointed in terms of theCommissioners for Justice Act and shall be liable to the samepenalties and be subject to the same procedures as provided in article4:

Provided that upon a conviction for the second orsubsequent offence of a person habitually resident in Malta theCommissioner for Justice shall order the person convicted to appearbefore the Drug Offenders Rehabilitation Board established underarticle 6.

(2) Notwithstanding the provisions of sub-article (1), in thecase of a second or subsequent conviction as referred to in sub-article(1), where the prohibited drug involved in the offence is cannabis orcannabis resin the Commissioner for Justice shall only refer theconvicted person to the Drug Offenders Rehabilitation Board if, afterconsidering the circumstances of the offence and of the offender, he issatisfied that there are reasonable grounds to believe that thecircumstances of the convicted person give rise to a probability thathe is abusing or is likely to abuse prohibited drugs other thancannabis or cannabis resin.


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Non-appearance before the Board.

Cap. 291.

(3) The Commissioner for Justice shall in all cases make anorder for appearance before the Drug Offenders Rehabilitation Boardin the case of any person who is charged with a second or subsequentoffence in terms of sub-article (1) or (2) and who either opts to paythe penalty without proceedings in terms of the Commissioners forJustice Act or fails to appear before the Commissioner when dulysummoned.

(4) Where a person is referred to the Drug OffendersRehabilitation Board in terms of sub-articles (1), (2) or (3), the saidBoard shall summon the said person to appear before it and shall,after conducting such examinations on the said person as areproportionate and as it considers necessary, and if it finds that the saidperson has a drug dependence problem which merits treatment, thesaid Board shall issue such orders to that person as appear to theBoard to be necessary for the purpose of assisting that person to comeout of his drug dependence.

(5) Any person who after being referred to the Drug OffendersRehabilitation Board fails, without reasonable justification, to appearbefore the Board on any occasion when he is to so appear, or whofails without reasonable justification to comply with an order issuedto him by the Board shall be guilty of an offence against this Act andshall be liable on conviction by the Court of Magistrates to a fine(multa) of between one hundred euro (€100) and five hundred euro(€500) or to imprisonment for a period of three months or to bothsuch fine and imprisonment.

Drug Offenders Rehabilitation Board.

6. (1) There shall be a Board to be known as the DrugOffenders Rehabilitation Board which shall consist of:

(a) a Chairman who shall be appointed by the Ministerwho shall be either a retired judge or a retired Magistrate or aperson who shall have exercised the profession of advocate for aperiod of at least twelve years;

(b) one member who shall be appointed by the Ministerupon the recommendation of the Minister responsible for SocialPolicy;

(c) one member who shall be appointed by the Ministerupon the recommendation of the Minister responsible for HomeAffairs;

(d) one member who shall be appointed by the Ministerupon the recommendation of the Minister responsible forHealth.


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(2) The Minister may appoint may appoint more than oneformation of the Board in accordance with the method of appointmentprovided in sub-article (1).

(3) In the case of equality of votes the Chairman of the Boardshall have a casting vote.

(4) The Drug Offenders Rehabilitation Board shall have thefollowing powers and functions:

(a) to interview and examine any person who is referredto it by the Commissioner for Justice or by a Court in terms ofthe provisions of this Act or of any other law;

(b) to order the taking of such blood or urine samplesfrom any person referred to it;

(c) to obtain any information, technical assistance orexpert advice from any Government department or agency orfrom any body set up by law for the purpose of assessing thesituation of any person referred to it;

(d) to take such proportionate measures as may appearto the Board to be necessary for the purpose of assisting theperson referred to it to combat drug dependence problems;

(e) to issue such orders or recommendations, whichmay also include orders restrictive of freedom of movement, fortreatment or rehabilitation to any person referred to it for thepurpose of assisting such person to combat drug dependenceproblems;

(f) to advise and assist the Commissioner for Justice,the Court of Magistrates or any other Court of criminaljurisdiction upon the request of the said Commissioner forJustice or Court in relation to measures related to proceedingsbefore the Commissioner for Justice or the Court, or in mattersrelating to the assistance and rehabilitation of drug offendersand persons charged with offences under the drug laws or withoffences which are related, directly or indirectly to drugdependence;

(g) to oversee and advise about the establishment andoperation of a programme aimed at providing psychologicalsupport to family members and other persons with a closeconnection to persons suffering from drug dependenceproblems;


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(h) to work in co-ordination with the justice, socialpolicy, police, health and judicial training authorities for theorganization of training for practitioners involved in activitiesrelated to the control of drug abuse and drug related behaviour;

(i) to perform any other function related to therehabilitation of drug abusers as the Minister may from time totime by regulations assign to it.

(3) Generally, for the purpose of exercising its powers andfunctions, the Board shall have, mutatis mutandis, all such powers asare by the provisions of Book Second of the Criminal Code vested inthe Court of Magistrates.

Cultivation of the plant cannabis.

7. A person found guilty of cultivating the plant cannabis in asmall quantity not exceeding one plant, in circumstances where theCourt is satisfied that such cultivation was for personal use, shall notbe liable to a mandatory term of imprisonment or to the exclusion ofthe application of a probation order or of the suspension of a term ofimprisonment provided for in the drug laws.

Drugs Court.

Cap. 101.

Cap. 31.

8. (1) Where the accused is charged with an offenceagainst the drug laws with regard to a quantity of prohibited drugswhich, irrespective of the kind of drug or of the purity, does notexceed the quantity of the drugs listed in the Guidelines found in theFourth Schedule to the Dangerous Drugs Ordinance or in the FourthSchedule to the Medical and Kindred Professions Ordinance as aquantity of drugs indicative that the accused should not be referredfor trial before the Criminal Court, or is charged with the commissionof any crime not liable to a punishment of more than seven yearsimprisonment, and the conditions referred to in sub-article (2) aresatisfied, the Court may, after hearing submissions made on behalf ofthe accused and on behalf of the prosecution and after hearing anywitness which the Court considers it necessary to hear and afterconsulting the Drug Offenders Rehabilitation Board, issue a decreewhereby the Court will assume the function of a Drugs Court.

(2) The conditions to be satisfied for the purpose of sub-article(1) are the following:

(a) that the offence against the drug laws or against anyother law with which the accused is charged is substantiallyattributable to the grave and medically proved drug dependenceof the accused; and

(b) that the offence against any law other than the druglaws with which the accused is charged does not consist of awilful offence against the person or of a crime committed whilst


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the accused was in possession of arms proper or with the use offire or explosives; and

(c) that there are objective reasons which indicate thatthe accused is likely to be rehabilitated from drug dependenceor that he has made substantial progress or effort to free himselfof drug dependence.

(3) When the Court issues a decree that it is to assume thefunctions of a Drugs Court, the Court shall proceed to refer theaccused before the Drug Offenders Rehabilitation Board which shallbe entitled to give such orders in respect of the accused as provided inarticle 6.

(4) In the event that the accused fails to comply with theorders of the Drug Offenders Rehabilitation Board or if the Board,after examining the facts, considers that the accused is not showingcommitment to his rehabilitation, the Board shall, without prejudiceto any liability of the accused under article 5(5), recommend to theCourt to revoke its decision to convert itself into a Drugs Court and toproceed with the trial.

(5) Where the Drug Offenders Rehabilitation Board, within aperiod of not more than eighteen months from when the accused wasreferred to it, considers that the accused has managed to substantiallyfree himself of drug dependence, the Board shall report that fact tothe Court and it shall refer the accused back to the Court.

(6) After it receives the report referred to in sub-article (5), theCourt shall order the Registrar of Criminal Courts and CriminalTribunals to furnish it with a list of all pending criminal cases againstthe accused, other than cases over which a Court of Magistrates doesnot have and cannot be granted competence and offences involvingcharges as referred to in sub-article (2)(b), and it shall, insofar as itconsiders such a measure to be in the best interests of therehabilitation of the accused after also taking due account of theinterests of the proper administration of justice and of victims, recallall such cases as may fall within the competence of the Court ofMagistrates or to which the competence of the Court of Magistratesmay be extended so that they will be heard and decided before it if theCourt is the Court of Magistrates and if the Court is the CriminalCourt they shall be decided before it consisting only of the Judge:

Provided that in cases to which this sub-article applies,where an offence referred to in this sub-article exceeds thecompetence of the Court but consists of an offence to which the saidcompetence may be extended, the Court’s competence shall be


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deemed to have been extended by operation of law by virtue of thedecree recalling such cases to be heard and determined before it withno further consent or formality being required.

(7) In cases where a recall of other cases is made in terms ofsub-article (6) the Court may, notwithstanding any other law, in theevent of any conviction, decide not to apply any minimum term ofmandatory imprisonment or the exclusion of the application of aprobation order or of the suspension of a term of imprisonmentapplicable to any offence in respect of which the accused is foundguilty:

Provided that the Court shall only refrain from applying amandatory minimum term of imprisonment or the exclusion of theapplication of a probation order or of the suspension of a term ofimprisonment if it is satisfied on a balance of probabilities that theoffence of which the accused has been found guilty was mainlyattributable to his drug dependence.

Cap. 9.

Cap. 77.

(8) In giving judgment in cases to which sub-articles (5), (6)and (7) apply, the Court may also order that any offence of which theaccused has been found guilty, other than an offence for which theaccused has been sentenced to imprisonment without the applicationof article 28A of the Criminal Code, shall not be taken into accountfor the purposes of the issue of a conduct certificate under theConduct Certificates Ordinance after the lapse of a period being aminimum of one year and a maximum of three years from the date ofthe Court’s judgement unless the offender relapses.

(9) There shall be no right of appeal from a decision of theCourt to assume the functions of a Drugs Court or to decline a requestto do so, or from any decision of the Drug Offenders RehabilitationBoard.

(10) Where the accused has been referred to the Drug OffendersRehabilitation Board as provided in this article the accused shall,during the period whilst he is so referred, be brought before the Courtat intervals of not more than three months for the Court to be updated,whether orally or in writing, by the Board with regard to the progressof the rehabilitation or treatment of the accused.

(11) During the time when the accused is referred to the DrugOffenders Rehabilitation Board the Court shall continue to hear thecase against the accused as though no such referral was made but itshall not pass judgement.


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Sentencing Policy Advisory Board.

9. (1) There shall be a Board to be known as theSentencing Policy Advisory Board which shall consist of suchnumber of persons not being less than three or more than six as theMinister may from time to time appoint.

(2) The function of the Board shall be to suggest policies forthe sentencing of persons found guilty of drug and drug relatedoffences in such a manner as to aim at achieving consistency in thepunishments given for such offences by different courts.

(3) The Minister, after consultation with the Commission forthe Administration of Justice, may by regulations extend thecompetence of the Sentencing Policy Advisory Board to otheroffences.

(4) Upon drafting sentencing policies the Board shall report tothe Minister who shall refer the draft policies for an opinion from theCommission for the Administration of Justice, making suchcomments in writing as the Minister may deem appropriate.

(4) The Commission for the Administration of Justice shallissue its opinion on the draft sentencing policies within six monthsfrom the end of the month during which these are communicated to itby the Minister:

Provided that if the opinion of the Commission for theAdministration of Justice is not received by the Minister within aperiod of thirty days following the expiry of the period of six monthsreferred to in this sub-article, the Minister shall be entitled to proceedto adopt and publish the said sentencing policies or to extend the saidperiod of six months upon the request of the Commission if heconsiders that such extension is justified:

Provided further that where the Commission for theAdministration of Justice has approved a sentencing policy this shallbe published by the Minister as so approved unless the Minister, forreasons to be stated in writing, considers it necessary to depart fromthe approved policy.

Use of cannabis for medical purposes.Cap. 464.

10. (1) A specialist consultant physician appropriatelyregistered under the Health Care Professions Act shall be entitled toprescribe medicinal preparations containing extracts of the plantcannabis if he considers that there is no viable alternative to suchprescription due account being taken of the interests of the patient andof the costs.

Cap. 464.

(2) A specialist consultant physician appropriately registeredunder the Health Care Professions Act shall be entitled to prescribe


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the use of the plant cannabis in small quantities for medical purposeswith the approval in writing of the Superintendent of Public Health.In granting such approval the Superintendent of Public Health mayimpose such conditions, modalities and limitations with regard to theacquisition, use and length of use of the said drug for medicalpurposes as he may deem fit.

(3) The Superintendent of Public Health shall keep a Registerof any approvals or rejections of applications made under this article.

(4) A person who sells, procures, acquires or uses the plantcannabis or medicinal preparations thereof in accordance with theprocedures and approvals provided for in this article shall not beguilty of an offence against this Act or against the drug laws.

Persons providing assistance to a person suffering from a drug overdose.

11. (1) Any person who provides assistance to anotherperson suffering from a drug overdose by taking such person to ahospital or to a place where he can receive appropriate medical careor who seeks the assistance of the competent authorities for such apurpose shall, without prejudice to his liability for any other offence,not be liable to be prosecuted for having shared or consumed aprohibited drug in a quantity for personal use with the personsuffering from the said overdose.

(2) Where the person providing assistance in accordance withsub-article (1) shall be liable to prosecution for any other offencedirectly connected with the overdose of the assisted person thepunishment to which such person shall be liable on conviction shallbe reduced by on degree.

Power to make regulations.

12. The Minister may make regulations for the betterimplementation of any of the provisions of this Act and, withoutprejudice to the generality of the foregoing, such regulations maymake provision:

(a) for establishing procedures to be followed byCommissioners for Justice taking cognizance of cases under thisAct and in respect of the procedure to be followed by the DrugOffenders Rehabilitation Board;

(b) for the organization of schemes of communityservice and to provide that such schemes may, with theauthorisation of a Court or of a Commissioner for Justice, as thecase may be, be used as an alternative to any pecuniary penaltywhich may be imposed by a Court or by a Commissioner forJustice under this Act;

(c) for varying the amount of penalties that may be


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imposed by Commissioners for Justice under this Act providedthat the maximum penalty so established shall not exceed fivehundred euro (€500);

(d) for providing for procedures to be followed for theimmediate payment of penalties without proceedings in respectof penalties to which a person may become liable under thisAct;

(e) for providing, in a proportionate manner, for thenon-renewal of licences or other authorisations of any kind to aperson convicted of any offence consisting of simple possessionof a drug for personal use until a penalty due is actually paid.

Exclusions from applicability of this Act.

13. This Act shall not apply:

(a) in respect of any offence against the drugs laws,other than an offence consisting of the simple possession forpersonal use of a prohibited drug, committed within, or withinone hundred metres from, the perimeter of a school, youth clubor centre or such other place where young people habituallymeet; or

Cap. 31.

Cap. 101.

(b) where the offence consists in the sale, supply,administration or offer of prohibited drugs to a minor, to awoman with child or to a person who is following a programmefor cure and rehabilitation from drug dependence and to whichthe second proviso to sub-article (2) of article 120A of theMedical and Kindred Professions Ordinance or the secondproviso to sub-article (2) of article 22 of the Dangerous DrugsOrdinance apply; or

(c) where the offence against the drug laws is onecommitted in or in relation to a correctional facility.

Amendment of article 3 of the Commissioners for Justice Act.Cap. 291.

14. Article 3 of The Commissioners for Justice Act shall beamended as follows:

(a) in the proviso to sub-article (3) thereof, for thewords "Provided that the Court of Magistrates shall havejurisdiction" there shall be substituted the words "Provided thatthe Court of Magistrates or any other court of criminaljurisdiction shall have jurisdiction"; and

(b) immediately after sub-article (3) thereof, there shallbe added the following new sub-articles:


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Cap. 101.

Cap. 31.

"(4) Notwithstanding the otherprovisions of this Act, an offence against theDangerous Drugs Ordinance or against theMedical and Kindred Professions Ordinancewhich is triable under this Act shall not ceaseto be a criminal offence and the courts ofcriminal jurisdiction shall retain a concurrentjurisdiction to try that offence so however thatthe punishments applicable after the cominginto force of this Act shall not exceed thepunishments which would be applied had theoffence been tried before a Commissioner forJustice under this Act:

Provided that the Courts of criminaljurisdiction shall, by virtue of this Act, beentitled to apply any penalty which may beapplied by a Commissioner for Justice underthis Act in respect of an offence whichaccording to this Act is to be tried before aCommissioner for Justice.

(5) An offence referred to in sub-article (4) shall remain subject to all thepowers of the Executive Police in respectthereof as if it had not been an offence triableby a Commissioner for Justice under this Actfor the purposes of the investigation of thesaid offence or of any other offence.

Cap. 77.

(6) Notwithstanding the provisions ofsub-articles (4) and (5) or of any other law, anoffence referred to in sub-article (4) shall notbe taken into account for the purposes of theissue of conduct certificates under theConduct Certificates Ordinance but theRegistrar of the Tribunal or any other personas may be designated by regulations made bythe Minister shall keep a register of allconvictions or voluntary payments ofpenalties in respect of offences referred to insub-article (4) and such register shall beaccessible to the Executive Police, to theRegistrar of Criminal Courts and CriminalTribunals and to any other public authority asthe Minister may by regulations designate.


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Amendment of article 13 of the Commissioners for Justice Act.Cap. 291.

15. In paragraph (b) of article 13 of the Commissioners forJustice Act, for the words "established for contraventions;" there shallbe substituted the words "established for contraventions:" andimmediately thereafter there shall be added the following proviso:

"Provided further that nothing in this paragraph shall beinterpreted as preventing Parliament from amending theSchedule by means of an Act of Parliament to include thereinoffences which are liable to punishments which are higher thanthe punishments established for contraventions.".

Amendment of the Schedule to the Commissioners for Justice Act.Cap. 291.

16. The schedule to the Commissioners for Justice Act shall beamended as follows:

(a) for the words "Particular Provisions if any" in theheading of the third column thereof, there shall be substitutedthe words "Particular Provisions, if any, or Description ofOffence"; and

(b) immediately after the item "Management of BathingWater Quality Regulations" there shall be added the followingnew items under the columns indicated below:

Cap. 31.

Cap. 101.

(7) Prosecution before theCommissioners for Justice for offencesagainst the Medical and Kindred ProfessionsOrdinance or against the Dangerous DrugsOrdinance for possession for personal use of aprohibited drug shall be carried out by theExecutive Police who shall however appearbefore the Commissioner in plain clothes.".

Legislation Cap. or S.L.

number

Particular provisions, if any or description of

offence"Dangerous Drugs Ordinance

Cap. 101. Simple possession forpersonal use of aprohibited drug in anamount not exceedingtwo grams irrespective ofthe purity


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Objects and Reasons

The objects and reasons of this Bill are the introduction of anumber of measures to facilitate and expedite proceedings concerningthe possession of small quantities of prohibited drugs for personaluse, for taking measures for the rehabilitation of persons accused withthe commission of certain criminal offences who suffer from drugdependency, for the better administration of resources in the LawCourts and in the fight against trade in illegal narcotic substances.

Medical and Kindred Professions Ordinance

Cap. 31. Simple possession of aprohibited drug forpersonal use in anamount not exceedingtwo grams irrespective ofpurity or of not morethan two “ecstasy” pillsor other pills of the samenature and simplepossession for personaluse of the plant "khat".".


drug dependence (treatment not imprisonment) act, 2014 - bill · 2015-03-09 · c 1165 a bill...

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