By Ronald G. Burch-Smith
The High Court as a venue for the trial of serious criminal matters is both woefully underutilized and at the same time over burdened. Its jurisdiction to impose severe sentences is currently not invoked by the authorities in several areas of serious criminal offences such as robberies and firearm charges, possession of and trafficking in prohibited substances and serious frauds and other offences of dishonesty. It is over burdened as relates to its capacity to dispose of the matters that do come it its attention – homicide, serious sexual offences, kidnapping – as there are scores of matters where persons are remanded awaiting trial or on bail with no trial date in sight. With the perennial wish list of more judges, more state counsel, more courtrooms and legislation and more personnel to facilitate real-time court stenography being perpetually unrequited, there is little cause for optimism.
Fortunately, an important mechanism to expedite matters in the High Court after committal which is also available in the Magistrate’s Court in summary criminal matters is the newly introduced device of plea bargaining. There has been some timidity in the prosecutorial system in embracing this innovation, but this should not be. There is philosophical reluctance inherent in our received jurisprudence against the concept, as it is seen as trading that cloistered concept of justice for the modern imperative of efficiency.
The cons of plea bargaining are well known. An innocent person is under pressure to make an election between the risk of conviction and the risk of acquittal, a guilty person appears to ‘get off‘ to a certain extent by indulging an overburdened criminal justice system. There are also moral dilemmas for counsel for the accused and state counsel about the rightness of offering and/or accepting the agreement.
In the United States, where there is a strong culture of plea bargains, the same dilemmas exist, but its use is nevertheless widespread. In 1979, a Columbia Law Review article estimated that in America at that time “roughly 90% of the criminal defendants convicted in State and Federal Courts plead guilty rather than exercise their right to stand trial before a court or jury.”
The reality of modern criminal court management makes plea bargaining an imperative that most common law jurisdictions have embraced, and its benefits, properly managed and reviewed, certainly outweigh the risks.
Plea bargaining takes place as a discussion between the prosecution and the defence, held with a view to arriving at a plea agreement either before the arraignment of the accused person, or at any time after the trial commences but before a sentence is pronounced.
A plea agreement is similarly defined as an agreement entered into between the defence and prosecution, whereby the accused person agrees to plead guilty and the prosecutor agrees to take a particular course of action. This may include (i) an application to the court to dismiss other charges; (ii) a recommendation to the court for a particular sentence; (iii) an agreement not to oppose a request by the accused person or his attorney-at-law for a particular sentence, or an agreement that a specific sentence is appropriate for the disposal of the case.
The prosecutor requires the written authorization of the DPP to plea bargain. Prosecutors are constrained (by sanction) to avoid improper inducements, including coercion even to plea bargain or fraudulently misrepresent a material fact. Though not defined as an improper inducement, the prosecutor is exhorted not to plea bargain for an offence not disclosed by the evidence; for an offence that inadequately reflects the gravity of the provable conduct of the accused save in exceptional circumstances; or requires the prosecutor to withhold or distort evidence. The victim must also be consulted by the prosecutor and later by the court.
The reason the agreement must be disclosed to the court, is that the court must be satisfied before accepting it that there was no improper inducement; the accused understands the nature, substance and consequences of the agreement; and that the offence to which the agreement relates adequately reflects the gravity of provable conduct of the accused. The court may reject the agreement if it considers that it is not in the interest of justice to do so. A plea bargain or agreement which is rejected by either party or the court is inadmissible in evidence should the matter go to trial.
There are real concerns remaining. The prisoner’s dilemma of implicating one’s co-accused before he does the same thing is not clearly treated. Can the evidence of a person who should otherwise be a co-accused be used? Similarly, it is appropriate to induce an accused person to enter a plea agreement in return for he or she giving evidence against another person, or doing or forbearing from doing something. To determine whether it is in the interest of justice to accept a plea agreement a judge or magistrate is encouraged to form a view of the strength of the prosecution‘s case and/or possible defences of the accused, which is necessarily a fact-finding process. Courts are used to deferring until the conclusion of witnesses’ evidence.
The system of plea bargains is a modern imperative and we would do well to cautiously embrace it. The Bar Association should as a matter of urgency and after due consultation, publish guidelines for its members on how to use the act, treat with ethical issues and maintain their moral obligations to clients and to the court.
