However, there have since been concerns that such a law could lead to people opting not to get tested out of fear that doing so could see them land on the wrong side of the law.

“The point of this legal notice is to promote public health and we must ensure it doesn’t backfire because people aren’t getting tested,” sources close to the Justice Ministry said.

Times of Malta also reported concerns by some ministers that such a law could stretch police resources even more, as they would have to deal with a potential flood of reports, as well as concerns by the Attorney General that it would be hard to prove in court that a Person A would have intentionally infected a Person B.

However, criminal lawyer and former PN MP Franco Debono has argued that the point of such a law is for there to be a deterrent against wilful spreading.

“If the law is a sufficient deterrent, there will be no reports, prosecutions or convictions,” he said. “The main scope of the law is deterrence and not retribution.”

He said that if someone develops COVID-19 symptoms but doesn’t get tested out of fear of the law, that inaction in itself could qualify as malicious intent.

“As to the argument that such a measure would be driving infected persons into hiding, this doesn’t make sense at all. The proposed measure would have the opposite effect. Why on earth would someone who has no malicious intent refrain from being tested just because of this law? This doesn’t make sense!”

“On the contrary, a person who suspects he is infected would not risk going around without getting himself tested, since he could face the consequences – a maximum of six months imprisonment for negligent and nine years for malicious spreading of the disease. The effect would be to get people out of hiding thus preventing further spreading, and not the other way round!”

“Only those in bad faith would refrain from testing because of this law, and these are precisely the people whom this law would target.”

With regards the argument that police could be flooded by reports, Debono counter-argued that if this indeed proves to be the case, it would only go to show how much the law was necessary in the first place.

“Even one justifiable report would be reason enough to introduce this law, but if you’re envisaging a flood of reports, it means there’s a lot of breaches, and if there’s a lot of breaches it means the scope for the law is even bigger.

“Rest assured that police will only investigate reports that merit investigation, not the frivolous ones.”

As for the argument that the crime will be hard to prove in court, Debono argued that this is the case for many crimes, and indeed many go unsolved, but that this alone doesn’t justify the removal of the law itself.

“One must also take into account that offences don’t only need to be proved by direct evidence but also by circumstantial evidence. If someone hasn’t left home in two weeks, but I visit him, sneeze in his face and he gets sick, that could be circumstantial evidence.”

“If someone boasts on social media that they have COVID-19 but hate society so much that they are going around infecting people, a public declaration of malicious intent, what should the police be able to do?”

Cabinet is set to discuss this planned legal notice and its potential implications in its meeting today.

Cover photos: Malta Police Force 

Should Malta criminalise the wilful spreading of COVID-19?