Covered by an Insurance Policy?

A presumption of criminal responsibility has been established in our laws by virtue of Article 3 (1A) of Chapter 104 of the Laws of Malta titled the Motor Vehicle Insurance (Third-Party Risks) Ordinance. Whilst Article 3(1) of Chapter 104 creates the offence of driving a vehicle without a valid insurance cover, Section 3(1A) creates the rebuttable presumption that it is deemed that no policy was in place unless the accused brings evidence of a valid insurance certificate issued in terms of Section 4(4) of the same Chapter 104.

What are the requirements which need to be satisfied in order for the accused to be able to rebut the presumption of having no policy and consequently not be criminally responsible in terms of Section 3(1)?

The requirements, in truth, are none other than those listed in Section 4(4) to which Section 3(1A) itself refers to. According to Section 4(4) an insurance policy will have no effect unless;

1. It is issued by authorised insurance broker/agent/company
2. It is issued in favour of the person who purchased the policy
3. It is issued in the form established by law.

To these requirements above-mentioned I would add;

1. It was in force at the time of the commission of the offence;
2. It offers cover to the person who was driving the vehicle at the time of the offence.

Although this seems to be quite straightforward strangely, we have had conflicting judgements by our Courts on how and why this presumption of guilt ought to be rebutted.

In the case decided on the 30/11/2005 in the names the Police vs Angelo Scuderi, the Court of Appeal held that the accused satisfied this presumption if he showed that there was a valid insurance policy in place, EVEN if that particular policy did not cover the accused. The reasoning was that if an insurance policy covered at least the vehicle at the time of the offence, an insurance company is still bound to pay third parties for any damages caused by the driver of the insured vehicle, which driver however was not covered by that insurance.

This obligation, the Court of Criminal Appeal maintained stemmed, from the obligation imposed on insurance companies in terms of Section 10(1) of Chapter 104. The said Article, in fact imposes a contractual and regulatory obligation on insurance companies to pay damages caused to third parties if an insurance policy was in place. If that policy however did not cover the person who caused the damages, then this meant that the insurance company could turn on the person who caused the damages and recuperate from him that amount which the insurance company would have paid to the third party. This provision implied, therefore, that if the accused could show that there was an insurance policy in place at the time of the incident, then criminal responsibility for driving without an insurance cover would not ensue. The accused would have therefore rebutted the presumption of guilt laid down in Section 3(1A) above-mentioned.

Similar approaches were taken by our Court of Criminal Appeal in the various other, such as Police vs Stefan Apap decided on the 26^th April 2007 and in the case Police vs Charles Galea decided on the 7^th May 2007.

In time, however, the Court of Criminal Appeal started to take a different stance. One of the cases which departed from the reasoning above cited was the case The Police vs Joseph Gatt decided on the 18^th January 2016. Here the Court argued that Section 3 creates the criminal offence of driving without an insurance cover and Section 10(1) dealt with something completely different, namely the contractual obligation imposed on insurance companies to pay damages caused and how they can recover that payment.  

The Court held that for a person charged with driving without an insurance cover to rebut this presumption of guilt, he simply had to show that there was in place at the time of the offence an insurance cover which satisfied the criteria laid down in Section 4(4) of Chapter 104. In other words, the issue that an insurance company would still be obliged to pay the damages even if that policy did not cover the accused was irrelevant.

A similiar approach was taken in the case Police vs Xemizin Mckay decided by the Court of Criminal Appeal on the 31^st May 2023. Here the vehicle being driven was covered by a vaid insurance policy. However, the driver was a minor who therefore could not have had a driving license. The accused relied on the deposition of the Transport Malta official brought forward by the prosecution who gave evidence to the effect that the vehicle was covered by an insurance policy. The Court of Appeal explained that that alone was not enough to rebut the presumption created in Article 3(1A) and exonerate a person from criminal liability. The accused had to further show;

1. That there existed a certificate of insurance.
2.  That the said certificate was issued according to what is laid down in Section 4(4) above mentioned.
3. And finally that the insurance certificate was such that it covered any damages that he could have caused whilst he was driving that vehicle.

Hence, one can see that there seems to be a shift as to what is required from the accused to rebut the presumption of guilt laid down in Section 3(1A) of Chapter 104. To date, in fact, there are still judgements which are being delivered by the Court of Criminal Appeal which reiterate the position taken in the Scuderi case supra cit. The position is in fact slightly nebulous.

To conclude, it is our opinion that the scope of the offence laid down is Section 3(1) of Chapter 104 is to ensure that any person who suffers some form of damage by a driver of a motor vehicle is duly compensated for the damages he has suffered. The best way to ensure that this does in fact happen is by criminalizing those who drive a vehicle without any insurance cover whatsoever. Hence, the Scuderi approach, I believe is a sensible way of addressing the situation.