Govt. unveils new Plea Deal Bill

Jun 28, 2023 Court Stories, Features / Columnists, News

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Kaieteur News – As part of the Government’s legislative agenda to modernise and make more efficient the criminal justice system, a draft Criminal Procedure (Plea Discussion and Plea Agreement) Bill has been prepared by the Attorney General Chambers and Ministry of Legal Affairs.

The Bill seeks to repeal the Criminal Procedure (Plea Bargaining and Plea Agreement) Act, Cap 10:09 and re-enact legislation which addresses the gaps in the current law to effectively expedite criminal proceedings, protect the rights of the individual and ensure offenders are properly sentenced in accordance with law. The Bill seeks to provide for the establishment of a system of plea discussion and plea agreements in criminal proceedings. Its primary intent is to provide the opportunity for prosecutors and accused persons to meet under specific circumstances and negotiate a settlement acceptable to the principles of justice.

This will inevitably save judicial time, reduce the backlog of criminal cases, reduce the prison population on remand while at the same time ensuring that accused persons face penalties proportionate to the crimes committed. Only recently, judges of the Caribbean Court of Justice (CCJ) lauded the manner in which plea bargain mechanisms have worked in other jurisdictions, contributing significantly to speed and efficiency in the administration of criminal justice, the Attorney General Chambers said in a release. The Attorney General Chambers and Ministry of Legal Affairs in April, 2023 invited comments in writing on the draft Criminal Procedure (Plea Discussion and Plea Agreement) Bill. Submissions were solicited from the Chambers of the Director of Public Prosecutions (DPP), the Office of the Police Legal Advisor, the Guyana Bar Association, the Berbice Bar Association, and the Law Reform Commission. The Bill will be soon taken to Cabinet before being laid in the National Assembly.

Explanatory Memorandum

Meanwhile, according to the explanatory memorandum of the Bill, it seeks to provide for the establishment of a system of plea discussions and plea agreements in criminal procedure and for matters connected thereto. This Bill is divided into five (5) Parts and contains thirty-eight (38) clauses and one (1) Schedule.

Part I of the Bill provides for the preliminary provisions and contains clauses 1 to 4. Clause 1 of the Bill provides for the short title and commencement of the Bill on a date to be appointed by the Minister by Order. Clause 2 provides for the interpretation of certain terms used in the Bill including “improper inducement”, “particular course of action”, “suspect” and “victim”. Clause 3 of the Bill provides for the application of the Act to both summary and indictable offences and expressly clarifies that the Act does not affect the right of an accused person to plead guilty without entering into a plea bargaining nor the right of an accused person to seek a sentencing indication from the Court. Clause 4 of the Bill provides a substantive definition of a plea agreement and its scope.

Part II of the Bill provides for the procedure pertaining to plea discussions and contains clauses 5 to 12. Clause 5 of the Bill provides for plea discussions to be held and plea agreements concluded at any time before conviction including before charges are instituted. Clause 6 of the Bill requires the written permission of the Director of Public Prosecutions to be obtained prior to a prosecutor entering into a plea discussion or concluding a plea agreement. Clause 7 of the Bill prohibits the use of improper inducements to encourage an accused person or suspect to participate in a plea discussion. Clause 8 of the Bill prohibits a prosecutor from participating in plea discussions in certain circumstances, inter alia, a plea discussion that requires an accused to plead guilty to an offence that is not disclosed by the evidence or inadequately reflects the gravity of the provable conduct of the accused.

Clause 9 of the Bill prohibits a prosecutor from engaging in plea discussions with an accused person or suspect in the absence of his or her attorney-at-law, where that accused person or suspect has retained counsel to represent him or her. Clause 10 of the Bill prohibits a prosecutor from initiating plea discussions with an unrepresented accused person or suspect, unless the prosecutor informs the accused person or suspect of certain rights, inter alia, the right to be represented by an attorney-at-law. Clause 11 of the Bill imposes a duty on the prosecutor to provide the suspect or accused person with a written summary of the evidence against the suspect or accused person in circumstances where plea discussions are initiated before charges are laid, as well as in circumstances where plea discussions are initiated after charges are laid respectively. Clause 12 of the Bill sets out the procedure to be followed by a Judge or Magistrate upon the first appearance of the accused in Court.

Part III of the Bill provides for victim impact statements and contains clauses 13 to 18. Clause 13 of the Bill imposes a duty on the prosecutor to inform the victim of his or her right to provide a victim impact statement and require that certain content not be included in the victim impact statement. Clause 14 of the Bill imposes restrictions on the contents of a victim impact statement. Clause 15 of the Bill provides for relatives of the victim to provide a victim impact statement in circumstances where the victim has died, is ill or is otherwise incapacitated, or cannot be found. Clause 16 of the Bill provides the procedure to be followed in circumstances where an impact statement is being provided by a victim who is a child. Clause 17 of the Bill provides for a duly authorized representative of a business that has been the victim of a crime to provide a victim impact statement on behalf of that business. Clause 18 of the Bill sets out the duties of the prosecutor in respect of the victim impact statement and the victim. This clause would also require the prosecutor to serve the impact statement on the accused.

Part IV of the Bill provides the procedure to be followed in respect of plea agreements and plea agreement hearings and contains clauses 19 to 27. Clause 19 of the Bill provides for circumstances where a plea agreement is concluded between a prosecutor and the attorney-at-law for an accused person or suspect and provides a list of documents which shall accompany the plea agreement and which must be filed with the Clerk of the Court or Registrar, as the case may be. Clause 20 of the Bill provides for circumstances where a plea agreement is concluded between a prosecutor and an unrepresented accused person or suspect and provides a list of documents which shall accompany the plea agreement and which must be filed with the Clerk of the Court or Registrar, as the case may be. Clause 21 of the Bill provides the procedure to be followed upon the filing of a plea agreement. The clause would, inter alia, require the Clerk of the Court or Registrar, as the case may be, to list the matter for a plea agreement hearing within twenty-eight days of the filing of the plea agreement.

Clause 22 of the Bill provides that where a plea agreement is filed before the commencement or during the conduct of committal proceedings but before an accused is committed to stand trial in the High Court, the Magistrate shall, inter alia, cease conduct of the committal proceedings and order that the plea agreement hearing be transferred to the High Court for determination. Clause 23 of the Bill imposes a duty on the Director of Public Prosecutions to prefer and file an indictment within a specified time frame, in circumstances where a plea agreement is filed before the commencement or conclusion of committal proceedings. Clause 24 of the Bill provides the procedure to be followed at a plea agreement hearing. The prosecutor is required to disclose certain information to the Court and the Court is required to make certain enquiries of the accused at the plea agreement hearing. Clause 25 of the Bill provides that a plea agreement is not binding on the Court. Clause 26 of the Bill provides that where a Judge or Magistrate accepts a plea agreement, the accused shall be requested to plead to the charge. Clause 27 of the Bill provides the procedure to be followed in circumstances where an accused person withdraws from a plea agreement.

Part V of the Bill provides general and miscellaneous provisions and contains clauses 28 to 38. Clause 28 of the Bill provides that an accused person may appeal to the Court of Appeal where a Court has rejected a plea agreement. Clause 29 of the Bill provides that the Director of Public Prosecutions may appeal to the Court of Appeal where a Court has rejected a plea agreement. Clause 30 of the Bill provides the grounds upon which an accused may withdraw from a plea agreement. Clause 31 of the Bill provides the grounds upon which the Director of Public Prosecutions may seek the leave of the Court of Appeal to have a plea agreement, a conviction or a sentence set aside. Clause 32 of the Bill provides for the extension of time for filing a notice of appeal.

Clause 33 of the Bill provides that the evidence of certain matters, inter alia, a plea agreement, which is later withdrawn, shall not be admissible against the accused who entered into a plea agreement or was a party to a plea discussion. Clause 34 of the Bill empowers a Court to order that the records of plea discussions or a plea agreement be sealed, in the interest of justice and requires the Court to give reasons for the order. Clause 35 of the Bill empowers the Minister to amend the Schedule by Order and clause 36 of the Bill empowers the Minister to make regulations. Clause 37 of the Bill provides for the repeal of the Criminal Procedure (Plea Bargaining and Plea Agreement) Act, Cap. 10:09. Clause 38 of the Bill saves any actions, proceedings and decisions in respect of plea discussions or plea agreements commenced or taken under the repealed Act, upon the commencement of this Act.

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• Anil Nandlall, Attorney General, Criminal, Procedure, SC

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