THE PRIME Minister says the Government intends to introduce plea bargaining into the criminal justice system. If this happens, the prosecution will be able officially to attempt to settle criminal cases before trial, much as parties in civil cases may settle their differences out of court. Convictions might be secured by agreement in this way where the prosecution is not confident of obtaining a conviction at trial, and also for tactical reasons, to obtain evidence that could convict another accused. The Government hopes that this will save judicial time, reduce costs, and increase the efficiency of the system.
There are some objections to plea bargaining. Whereas a trial takes place in open court under the control of a judge, whose decisions are subject to appeal, plea bargaining is a private negotiation between the prosecution and the accused. To avoid abuse, there must be adequate representation for the accused person, which may not be guaranteed in the absence of a proper legal aid system.
Furthermore, the criminal justice system is penal; it imposes fines, imprisonment and other sanctions as a means of punishing conduct viewed by the law as being inimical to the well-being of the society. In this sense, it differs from the civil law, where the emphasis is on protection of rights and compensation for infringements, and which for the most part, involves the adjudication/settlement of disputes between parties without recourse to penalties.
Arguably, negotiating settlement of the imposition of a penalty is contrary in principle to the imposition of penalties. If the prosecution is uncertain of its case, why should it be able to 'do a deal' with the defendant and secure a conviction of a lesser offence, instead of taking its chances before the court, or dropping the charges?
This objection may seem farfetched, it may be that the savings and efficiencies wrought by a formal plea bargaining system would outweigh such objections to the principle. In any event, pleas are sometimes unofficially bargained by prosecution and defence counsel in the courts, as a practical way of disposing of matters.
However, the potential for abuse must be taken seriously and dealt with at the time of preparing the legislation, and not afterwards, so as to ensure adequate legal protection for accused members of the public under the new proposed system.
The courts are hopelessly overloaded. We agree with the recommendation of the PERF Report that formalised plea bargaining should be introduced as one way to tackle this problem.
