For quite some time now the need had been felt to introduce a comprehensive law which would regulate plea bargaining before the courts in their criminal jurisdiction. Though in the past our legal framework did not regulate or define this important institution, in practice it had become over the years the norm before our courts. In fact a large number of criminal cases have been settled in this fashion both before the inferior courts and the superior criminal court.

The inherent problem, however, used to be that there was absolutely no consistency. In the past a good number of judges and magistrates had endorsed plea bargaining while on the other hand others would have refused to do so. It had become therefore a matter of pot luck.

The worst thing about this practice was that since plea bargaining was not recognised in a formal manner by law certain defendants occasionally have been placed at a terrible disadvantage. There have been instances where an agreement would have been arrived at between both the prosecution and defence as regards to what a particular judgment should be. Yet even though the presiding magistrate would have clearly expressed his predisposition in awarding the judgment being recommended, in the final analysis he could change his mind. Though thankfully not often, there have been occasions where this has proved to be the case, to the surprise and disdain of both the defence and the prosecution.

The scope therefore of introducing a law with regard to plea bargaining was precisely to remove the element of surprise in such instances and thereby avoiding undue prejudice to the defence. It is clearly not just and equitable for a particular defendant who would have been given a level of certainty on what the sentence would be, prompting him to admit to the charges only to face a much more severe punishment. In these instances it is not even fair for the defending lawyer who would have duly advised his client. The defence counsel will then have to face the dilemma of having to explain to the accused why things would have gone so wrong and this is hardly an easy affair.

In the light of the above, Parliament finally intervened and today we have a law which is supposed to regulate all this, though unfortunately the law introduced is only half baked. Under the new legal regime the prosecution and the defence are given the right to come to an agreement on how a particular case should be disposed of and what punishment should be handed out. The law also prescribes a precise form to be followed. Here the presiding judge no longer has the prerogative to arbitrarily ignore such an agreement and hand down a heftier sentence. If the judge is not in agreement with the proposals being made the option would be to declare so and then the defence will have the right to proceed accordingly with the trial and this without being prejudiced in any way.

It is disappointing, however, to note that the law as introduced only counts for cases pending before the superior criminal courts and not before the court of magistrates.

This is a serious anomaly which has to be addressed immediately. It must be remembered that the vast majority of cases are today decided by the Magistrates' Court and sadly here the system has remained as ambiguous as ever. Therefore before these courts we still have the practice of informal plea bargaining. If this were not to be the case the volume of work would be so over-stretched that we would need to triple the complement of our magistrates.

Notwithstanding the fact that from the amendments introduced it has been made amply clear that defendants in plea bargaining procedures should never be prejudiced, in actual fact occasionally they still are. Even today there have been instances whereby defendants are faced to their dismay with sentences that have completely ignored what would have been pre-agreed and this is totally unacceptable and dangerous.

On account of such problems and others it is being suggested in legal circles that the time has come whereby a committee of legal criminal law practitioners should be formed. Such a committee would help in no small manner to put pressure on the government to remove such blatant anomalies and improve the smooth running of our criminal courts.

Dr Herrera is a Labour MP.

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