Parliamentarians began debate Monday on a Bill to allow for plea bargaining in criminal cases; one of several Bills the Government will seek to introduce to improve the administration of justice in The Bahamas.
The Government tabled the Bill prior to the House of Assembly’s summer recess to enable House members to review it ahead of Parliament’s fall session which convened last Wednesday.
In moving debate on the Bill, Minister the Hon. Desmond Bannister explained that the proposed legislation is modelled on similar Trinidad and Tobago legislation that was passed by their Parliament since 1999.
“This Bill,” he noted, “creates a system by which prosecutors may engage in discussions with accused persons and their attorneys with a view to ascertaining whether those accused persons wish to plead guilty.
“This is a revolutionary concept in our law, since under English Common Law such discussions between prosecutors and defendants or their lawyers are generally discouraged.”
Minister Bannister emphasised that in order to be fair to all involved in such plea discussions, a number of safeguards have been built into the process at the stage of plea discussions in the Bill.
“First the Bill recognizes the importance of consulting victims of crime to obtain their views where this is possible and practicable prior to concluding an agreement,” the Minister said. “Further, unless there is some compelling reason such as the likelihood of serious harm to some person, the Bill provides that the prosecutor may ensure that the victim is advised of the substance of and reasons for the agreement.”
These provisions, he added, are revolutionary in that they involve consultation with the victim of criminal offences and obtaining their views with respect to critical issues that affect the defendant in a very fundamental manner.
“These provisions should help ease the anxiety that victims of crime often feel when they are thrown into the midst of the criminal justice system and may feel that they are not adequately advised of developments in the case.”
The Bill before Parliament does not permit prosecutors to conclude a plea agreement without first obtaining the permission of the Attorney General, and it also creates a method of penalizing those attorneys, prosecutors or police officers who are in any way involved in improperly inducing an accused person to participate in plea discussions.
These provisions ensure that a constitutionally independent officer supervises the entire process, the Minister advised.
Additionally, the Bill recognizes that the protection of the rights of the accused is fundamental to the viability of any system of criminal justice in a civilized society, and accordingly prosecutors will have a duty to inform accused persons of their right to have an attorney represent them during plea discussions and the court is given the power to assign counsel to accused persons.
Moreover, the prosecutor cannot engage directly in plea discussions with an accused person who has retained an attorney; and prosecutors will not be permitted to participate in plea discussions that require an accused person to plead guilty to an offence that is not disclosed by the evidence.
“Procedurally,” the Minister explained, “once an agreement has been arrived at, it is to be signed by the prosecutor and the accused person and his attorney if he has one.
“The prosecutor has to then appear before a court with the accused person and his attorney if he has one and disclose to the judge or magistrate the substance of the agreement and the reasons for entering into it. He also has to advise the court as to whether there was a previous agreement disclosed to another court in relation to the same matter.”
This provision, he said, will discourage prosecutors from shopping around for judges or magistrates who they feel may be favourable to them if other judges or magistrates have turned them down.
The Bill gives the court the power to hear the views of the victim or relative of the victim before passing sentence. It also includes the right to reject plea agreements where the judge or magistrate considers it in public interest to do so, and ensures that the judiciary are empowered to refuse to accept plea agreements in cases where they feel that a plea agreement is not in the public interest.
Highlighting additional features of the Bill, Minister Bannister said it permits a prosecutor to accept an offer from an accused person who initially chose to go to trial and then changes his mind to plead guilty or to testify against his co-accused on the condition that certain charges against him are dismissed.
“This provision will be an excellent tool to assist in the prosecution of drug conspiracies and complex fraud trials where generally the only evidence which is capable of sufficing for the conviction of a participant comes from the testimony of a co-accused,” he noted.
The Bill before Parliament provides that if the person refuses to give the evidence against his co-accused that he agreed to give, the agreement will be void and he will be subject to prosecution, and permits an accused person who has several matters either before the court or under investigation to have all of those charges brought before the court to be dealt with at one time.