The case for plea bargaining

As is well known, in many criminal trials the accused ends up pleading guilty. Such an admission is the result of plea bargaining. This practice is indispensable for the general administration of justice. If this were not the case, the backlog of criminal cases would undoubtedly increase in an unsustainable fashion. It must be pointed out that this is a universal trend that in no way demeans the quality of justice that is being meted out.

Until very recently, this custom was not in any way regulated by law. This notwithstanding, it was generally acknowledged as juridically acceptable due to convention and widely functional, albeit in an informal manner.

Unfortunately, some years ago the Court of Criminal Appeal, in a controversial judgment, took a far more restrictive approach to the juridical notion of plea bargaining. In my view, the consequences of this judicial precedent were by and large negative, leading to the halting of such a practice before certain members of the judiciary. The ripple effect was that fewer people facing charges were able to register an early admission, thereby contributing substantially to an increase in the backlog of cases before the criminal courts and in no way raising the standard of the administration of justice.

Eventually, the matter was duly raised in Parliament and the government was enticed to legislate accordingly. Finally, in 2002, the institute of plea bargaining was introduced into the Criminal Code through article 453A. Regrettably, however, the amendment was half-baked, and this notwithstanding the opposition’s stance affirming that which was already all too apparent.

The relevant article of law curiously refers only to criminal trials before the Criminal Court. The law, in fact, provides for the formalisation of an agreement between the defence and the Attorney General regarding punishment, which agreement would have to be justly rectified by the court. This new procedure is today widely applied, greatly speeding up criminal trials. Unfortunately, a similar procedure was omitted for the Magistrates’ Courts, and this inexplicably.

This lapsus calami is contributing to a state of uncertainty. The fact is that while certain magistrates still uphold the validity of plea bargaining and would thereby refrain from delivering surprise judgments, after the prosecution and the defence would have arrived at an agreement, a minority move in the opposite direction. Thus, for defence lawyers and the accused it is becoming a matter of pot luck. The gravity of the situation emerges from the fact that the vast majority of criminal cases are nowadays conducted before the Magistrates’ Courts.

Lately my colleague, government Member of Parliament Franco Debono, and I have had occasion in court to once again highlight this deficiency in our law. The matter was luckily taken up by the media, thereby giving impetus to this predicament. Consequently this concern has even been brought once more to the Justice Minister’s attention. Happily, this time around he has reiterated his agreement and, hopefully, relative legislation will be in the pipeline.

On a final note, I would like to take the opportunity to congratulate Judge Joseph Filletti on his appointment to the General Court of Justice in Luxembourg.

Judge Filletti was a senior judge and rendered a sterling service as part of the judiciary for over 30 years. His nomination is well merited and I wish him success in his new position.

In the same instance, I salute Judge Ena Cremona who for the last six years has sat on the General Court of Justice in an exemplary fashion and has now opted for retirement.

It is to be noted that Judge Cremona proved to be a first in many ways. She was the first female Maltese lawyer to practise law at the bar and for years on end was the only woman in legal circles. She was also Malta’s first and only woman ever to sit on an international court.

Dr Herrera is shadow minister for justice.


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