Government advisors are split over whether to criminalise the wilful spreading of COVID-19, with some saying it could negatively impact efforts to contain the virus.

On Monday, Lovin Malta reported that the government was poised to criminalise the wilful spreading of the coronavirus with jail time of up to nine years.

This was reportedly due to happen through an amendment to a section of the Criminal Code which regulates the criminal transmission of diseases.

The reform was first proposed by Malta’s former commissioner for laws and former MP, Franco Debono, who last month said the government should add COVID-19 to Article 244A of Malta’s Criminal Code.

This would allow the authorities to impose prison sentences of up to nine years for “malicious and voluntary spreading of diseases” and six months for “negligent and careless transmission of such diseases”.

Government sources told Times of Malta that most major virus containment measures were being discussed and approved by a core team of experts and advisors before being rolled out.

This team, the sources said, was split over whether criminalising the intentional spread of the virus was the best option at this point.

It might drive infected persons into hiding

Sources said that while Justice Minister Edward Zammit Lewis had initially been for the idea, Health Minister Chris Fearne was dead set against.

Different schools of thought

“Basically, there are different schools of thought on this. So, while we are certain that the intention was to minimise the spread, it turns out that, on closer examination, this could have presented further challenges,” a source privy to the discussions said.

Another source said that the initial idea was to protect frontline responders from being targeted. There were concerns that police, members of the armed forces and even doctors could get spat on or intentionally coughed at by an infected person.

One option on the table is to criminalise the intentional spreading of the virus to these essential workers. But criminalisation in more general terms has uncovered a number of drawbacks that are still under assessment.

One concern is that it might drive infected persons into hiding, undermining efforts to encourage anyone with symptoms to seek medical advice.

Sources said another issue flagged by the office of the attorney general was how this would play out in court.

Whether spreading of the virus is done intentionally or through negligence, the prosecution would have to prove that it was one particular person who infected another – very difficult to do in a court of law.

The law could also strain the already stretched law enforcement resources if they suddenly had to deal with a flood of reports over possible criminal spreading of the virus.

“In essence, this seems like a good idea at first glance but it presents a number of problems,” one government minister privy to the discussions said.

The possibility of such a reform had not even been brought before Cabinet yet, he said, adding he understood it “has been put on the back burner for now”.

“We have bigger fish to fry, right now.”

Offence 'can be proved'

Franco Debono said this was about adding a disease to a law which actually already existed, covering diseases such as hepatitis.

He said ffences can be proved by direct evidence but also circumstantial evidence. "One can be found guilty of the consummated offence but also of the attempted offence - very easy to prove where someone knew he was positive and went coughing around" he argued.

"Whoever thinks this would open floodgates of reports must also believe that there is a widespread breach which in and of itself is sufficient reason to introduce the measure. In reality, this is highly unrealistic, also keeping in mind that the primary aim of criminal law is deterrence not retribution. A sufficient deterrent leads to less breaches.

Debono disagreed that this would drive infected persons into hiding. "First of all the law would apply to people who already tested positive, and moreover someone who suspects he is infected wouldn’t take the risk of going around without getting tested considering the consequences of the law. Only those with malicious intent will go into hiding and those are precisely the people the law would justly target," he insisted.