After Scooter Libby, a Topless Bather is Convicted

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Most States have some archaic laws on their books. Some States choose to enforce them. Malta, an otherwise liberal democracy with European ideals, is one of the latter group. The Times of Malta today reports about a human rights appeal in this case.

The facts of the case are quite straightforward. On 20th August 2006 a young lady went to one of Malta's many sandy beaches and bathed 'sans bikini top'. That is pretty much it.

I presume that she was surprised to find herself accused of a contravention in terms of Article 338 of the Criminal Code. That article, introduced in 1933, provides that 'every person is guilty of an offence against public order who...in the harbours, on the seashore, or in any other public place, exposes himself naked or is indecently dressed.' The Court of Magistrates found the accused guilty. She was discharged on the condition that she did not commit any other offence within a week.

She appealed the judgment on the grounds that it was in breach of Article 7 of the ECHR:

No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Since the offence is a contravention, not a crime, there is no requirement of a mens rea. The actus reus will suffice. The appellant argues that whether or not one is prosecuted depends on the prosecutor's appreciation (no pun intended) of the facts. Worse still, a conviction depends on the forma mentis of the judge. There is no a priori definition of whether or not one is indecently dressed, unlike the offence of public nudity which is also provided for in the relevant article of the Code. Accordingly, the appellant argues that the offence did not exist when it was purportedly committed. The prosecution argues that it is incorrect to propose that every offence that requires some degree of interpretation falls foul of Article 7 of the ECHR.

We await the judgment on the human rights matter with interest and some amusement. Tax payers might not find the expenditure of public funds and time as entertaining. I assume that the appellant is appalled.

Comments

James said…
LOL perhaps you would also be interested to comment on the obscene arraignment on the russian girls accused before Mag. Antonio Mizzi re prostitution etc when they were simply there as dancers - AM acquitted them and AG appealed. It was on the Times of Malta a few weeks ago.
9 March 2007 at 18:10
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