This week the Terrorism case of the Thulsie twins was finalised in court with both accused being sentenced to terms of imprisonment. This was done by way of a ‘plea bargain’ with the State where they agreed on the charges and sentences. So what exactly is a ‘plea bargain’ and how does it work?
The word ‘bargain’ is usually associated with shopping where something is obtained at a fantastic price or value. In the legal context in criminal cases, the phrase ‘plea bargain’ denotes a negotiation between defence and prosecution over what charges to plead to with give and take by both sides. The prosecution often agree to drop some charges or accept pleas on lesser charges and in return get their case finalised quickly and are guaranteed a conviction. The defence benefit by being convicted of something less serious than what the original charge sheet proposed and usually reflects in a lesser sentence. Very much like the shopkeeper and shopper!
This concept is age old and happens on a regular basis in our criminal courts. However once the plea has been finalised in negotiations between prosecution and defence, the court must still pass sentence, and that can still be a risk as our courts usually have a wide discretion in what sentence to impose. The court is not bound by what either the prosecution or defence have to say in their arguments on sentence and can use their discretion as they deem appropriate. So although ordinary plea bargaining has benefits to both parties, the outcome is not guaranteed.
This situation was changed however in 2001 with the introduction of Section 105A of the Criminal Procedure Act. This section sought to formalise the concept of plea bargaining and bought in another dimension to it. In terms of this section, the prosecution and defence could now agree on a sentence, which removed the risk as explained above of uncertainty in the final result. This section set out various requirements that must first be in place before this can be used and this is what we will discuss now. The NPA also have their own internal guidelines as to how their prosecutors must use this section, and their policy is that it must not be used to let those deserving imprisonment to now escape lightly. Its purpose was to relieve the congestion in court rolls by getting cases finalised quickly where agreement can be reached, instead of having long protracted trials where the same outcome may happen anyway.
One of the first requirements of this Section is that the prosecutor dealing with the matter must be duly authorised by the NDPP to engage in the process. This is obviously a safeguard for juniors to not enter into inappropriate agreements and sentences, and allows supervision of the process by seniors. As such only certain levels of prosecutor may sign off these agreements, and in practice the court prosecutor does all the work in negotiating with the defence, drafts an agreement but then takes it to his/her senior for checking and signing off.
The next important requirement is that the prosecutor consult with the complainant of the case before signing such agreement. This is to ensure that the complainant’s interests and considerations are taken into account. In a Theft or Fraud matter this often entails an agreement of compensation on the loss suffered and the complainant must have some input into that aspect. In Murder or Culpable Homicide cases, where there is no complainant, the prosecutor must discuss the matter with the next of kin of the deceased so they too have some say in the outcome. But it must be noted that the complainants/families do not dictate what the prosecutor must do, but rather participate in discussions and provide input and suggestions only. This is not always on easy process as complainants and family members are understandably often bitter and angry and want much more severe sentences than what the prosecutor may have in mind. Trying to appease them as well as devising a sentence that is palatable to the defence requires some fine skills in diplomacy and persuasion! But the prosecutor’s job is not to please people but to find justice. Sometimes the prosecutor knows he does not have a very strong case and its better to have a lesser sentence than a finding of not guilty at the end of a long trial. Half a loaf of bread is often better then none at all. In cases where the State is the complainant (such as the Thulsie Terrorism case or drug cases etc), then the prosecutor will consult only with the Investigating Officer.
Once consensus has been reached amongst all the parties involved then a formal written agreement must be drafted. This agreement is like any other court document and contains all the necessary formalities. But it must also contain all the requirements of the Act and show that both the prosecution and defence have fulfilled their obligations in the agreement process. The court does not participate at all in this process here and all is done outside court. The formal agreement must also (like all guilty plea statements) contain all the facts on which the plea is based. It must also contain the factors on mitigation as well as aggravation of sentence. And then most importantly it must include the proposed sentence. Prosecutors and defence lawyers need to be careful here as constructing sentences is usually not something they do – its the magistrate’s job! A simple fine or term of imprisonment may be easy enough, but if suspended sentences with various terms and conditions, compensation matters and Correctional Supervision matters are envisaged, they need to be correctly set out. Reports by Correctional Supervision and Probation Officers need to be obtained before this process as some sentences may need reference thereto.
Once the agreement has been duly signed by the authorised parties, it is now ready to be taken to court. Everything so far will have been done outside court and this is the only time it is now formally dealt with in court. After the formal part of the charges being read out, the plea agreement is read out and formally handed in to court. So although the prosecution and defence have now formally agreed on everything, including the sentence, the court must still agree to it before that sentence is formally passed. A court cannot just agree to anything and if something is clearly not in accordance with justice, the court is entitled to reject the agreement and the usual trial process will have to be reverted to. So the prosecutor and defence lawyer in drafting the agreement must be fairly sure that what they are proposing will be sanctioned by the court, otherwise they will have wasted their time. And you only get one shot at it – if the court rejects it they cannot now go and draft another one or go to another court. But if the court disagrees with the proposed sentence, it may in court suggest an appropriate sentence itself and if both prosecution and defence are in agreement with the court, the sentence can be modified or amended, and passed.
The formal plea bargain is a very useful tool in our criminal courts, and if used correctly will help in cases being resolved expeditiously. It is designed for a win/win outcome where both parties stand to gain some benefit in engaging in it. So the Thulsie matter will have been finalised along the lines described above. Since it was a high profile case, the agreement will probably have been checked and signed as high as NDPP level. Practitioners who may be new to the criminal courts would be well advised to read this section as it is often a much easier way of finalising their client’s case where they can also tell their client what the likely outcome may be – something that cannot be done in the usual trial court process.