He was originally charged with attempted murder, but the attorney general dropped that to a charge of attempting to injure the person driving the car he shot at and hit. Of that lesser charge he was convicted by the magistrate’s court and given a suspended sentence.
But Consuelo Scerri Herrera, bless her, yesterday ruled the prosecution did not prove Paul Sheehan actually meant to hurt the driver he shot at.
Read the summary of her decision, and the arguments she used, if arguments is a term you’d want to use in this case, to get Manuel Mallia’s chauffeur a lighter sentence. You need to do that, because you cannot rely on my commentary to get an objective assessment, or at least something Consuelo Scerri Herrera might consider objective.
As you no doubt are by now aware I do not pretend to be a lawyer, let alone a professor of criminal law as someone recently and ironically described me for my bumbling attempts at speaking above my station. I would say this in my defence. If the law does not make sense to a professional ignoramus like myself, then it has gone down a road of madness. We are all entitled to question the sanity of things that seem unfair, and this decision sounds to me as odd as they come.
First consider the judge’s ruling that Paul Sheehan was perfectly entitled to shoot to kill his victim because the Constitution says so. I had to look that up for myself because it’s a funny Constitution that gives ministers’ chauffeurs a license to kill.
She refers to section 33 of the Constitution that, perhaps with some irony, safeguards everyone’s right to life. This means that the state is obliged to protect life and if it doesn’t do so properly, the state would be in breach of this obligation and liable towards the victims or their heirs. Now there are exceptions to that liability and the Constitution says the law may (and must) define what those exceptions are. If we had the death penalty (and up to 20 years ago, we did) the executioner pulling the lever on the gallows would be exempt from criminal liability and the state would not be considered to have breached the Constitution.
Fortunately, we do not have the death penalty. But there could be circumstances where the state kills, through its agents, and it would not be deemed to have been in violation of the Constitutional obligations with respect to the right to life.
Prisoners have a right to life, of course. But if they attempted to escape custody and if there were in place a law which authorised prison officers to use lethal force to prevent that escape, then the state would not be liable for the violation of the Constitution. The prison officer’s actions would still have to be examined in the light of the law authorizing the lethal use of force.
This exception is what Judge Scerri Herrera said applied in this case. She said Sheehan’s victim was drink-driving (something Paul Sheehan could at best merely have guessed at when he took his arm out to shoot at him) and because Paul Sheehan was a police officer and his victim was running away from him it was okay for Paul Sheehan to shoot him. She invokes the Constitutional provision which, if interpreted as Scerri Herrera interprets it, would mean that Paul Sheehan would have been perfectly entitled to kill his victim. Never mind the bit where she says no one proved he meant to hurt him at all.
If she’s right about this Constitutional provision, we live in a scarier place than we ever knew. A minister’s chauffeur, licensed to carry a gun because they are police officers that have been temporarily deployed out of the police force, can shoot at you if they do not like the way you drive. People not wearing uniforms can wave you down on the high road. If they point a gun at you, you are meant to stop to find out if under their scruffy appearance they once wore a police uniform. If you don’t and they kill you, the courts will protect them, applying an exemption intended to apply to the state, not to individual state agents. Scratch that. The Constitution will, by some form of inexplicable hermeneutic gymnastics, protect them.
Then there’s the rather contradictory observation the judge makes that no one proved that Paul Sheehan even meant to hurt his victim. What did the judge expect from the prosecution to prove Paul Sheehan’s intent? There were bullets lodged in the car of the victim, there was a recording of the gunshots heard over the phone, there was a recorded statement confirmed by witnesses of the accused saying he shot at the victim’s car because he tried to get away from him.
If he didn’t intend to hurt him, what possible alternative intentions may he have had? Could it be that he thought the bullets might give his target a nice back massage after a tough day at the office? Were the gun shots going to get him a takeaway with extra cheese?
Remember that what is being examined here is intent. Therefore, the success or failure in the actual shooting itself is, at least as far as intent is concerned, very much beside the point. The judge’s argument would be no different if the bullet lodged in the car’s metal had instead lodged itself in the victim’s shoulder, or even in the back of his head.
If the perpetrator did not “intend” to hurt the victim, that fact would not change even if he did hurt him.
The question then remains: what did the judge need to determine intent? Perhaps a letter from the accused saying he meant to hurt his victim? Because if that is the standard of proof, then I suppose it becomes impossible to convict anyone of any crime.
I’ll explain that. A criminal will always seek to cover their tracks in order to avoid detection or punishment. They can only be convicted on the back of the traces they leave behind, in this case bullets in his victim’s car, recordings, witnesses. But the easiest thing to hide, the easiest track to rub off, is what one is thinking when they commit a crime.
As good King Duncan said about the friend who had betrayed him, ‘there’s no art to find the mind’s construction in the face’. Intent can only be determined on the back of outward behaviour: he chased him, he took aim at him, he shot at him, he spoke on the phone saying he was shooting at him because his victim tried to get away.
If this prosecution has not done its job, I can’t imagine which prosecution ever can.