Jacqueline Samuels-Brown - FILE
The following is an excerpt of the submission made by Jacqueline Samuels-Brown to the Clerk of the Houses of Parliament on behalf of the Jamaican Bar Association in respect of the Criminal Injustice (Plea negotiations... and agreements) Bill 2004.
INTRODUCTION
This proposed bill comes in the context of problems surrounding the efficiency of the administration of justice in Jamaica and the Bar Association shares with the wider society grave concerns relative to the administration of justice.
Unfortunately, so far as the bar is aware, no coherent or scientific study has been done to establish the reasons for many of the problems impairing the functioning of the courts. For example, what are the main causes of the backlog as now exists in the court system? The approach has been largely anecdotal and intuitive.
There can indeed be no doubt that there is a backlog and undoubtedly, if there were no trials and cases were simply 'pleaded out', 'bargained out' or otherwise compromised, then any backlog would be significantly reduced. However, this is neither likely nor perhaps desirable, and it is our view that a piecemeal approach will never solve the problem.
We recall that when the Gun Court was first introduced, one of its touted benefits was speedy trials. It was said that trial by a single judge instead of with a jury would ensure this, yet where are we today?
BACKLOG
There is certainly a backlog in the Gun Court and it is perhaps as much as in the other courts. This, we submit, illustrates the need for an ongoing rational and comprehensive examination of the data.
For example, what is the number of or percentage of cases to which pleas are entered, the number and types of cases that are otherwise withdrawn, the sentences imposed for similar offences where conviction results from a plea, as opposed to a trial?
There must be an analysis of the data and this body of knowledge ought to be made available to all stakeholders in the justice system, including the representative organisations of the private bar. We do not believe this is as onerous as it may first seem as we know that the data are already readily available and all that is required is to take it to the next stage of collation and analysis.
We believe that it is only on such a rational and informed basis that decisions which are bound to have a far-reaching impact on the judicial system and which touch on fundamental constitutional principles should be made. We emphasise that the material should be made available to the bar and that the view of defense counsel ought to be canvassed and taken into account at the earliest stage and we suggest that this is the factual basis on which the discussion as to plea bargaining should proceed.
SIMPLE GUILTY PLEAS
The memorandum of understanding accompanying the bill states that the proposed law is designed to address two problems. Firstly, the difficulty of prosecuting perpetrators of some crimes who the police have difficulty in identifying; and secondly, the vast number of criminal prosecutions and the length of time it takes to bring the criminal trials to completion. It is submitted that the bill as drafted seeks to address the first problem and not the second.
Section 4 allows the Director of Public Prosecutions or his nominee to enter into plea agreements with accused persons. The agreement must have two dimensions: (i) A guilty plea; and (ii) an agreement by the accused to fulfil some other specified obligation(s), obviously constituting prosecutorial assistance.
This means therefore that the bill does not address the situation of the accused who wishes to plead guilty and for whom prosecutorial assistance does not and should not arise. Assuming that such cases constitute the great majority of cases in which pleas are to be considered, then clearly by excluding them, the proposed bill is failing to address the issue of the backlog in any significant way.
Those concerned with the criminal justice system would be aware that already, accused persons may plead guilty and that in a significant number of cases they actually do.
In relation to such guilty pleas, the plea is, as a matter of practice and indeed principle, to be considered as a mitigating factor which operates to reduce the sentence. According to Archbold, the leading practitioner's text this as a general rule, warrants a third reduction. However, there has been some concern that this is not applied consistently.
Again, when an accused decides to plead guilty, there may be informal discussions with the prosecutor. Sometimes the court may give an indication of how it might approach sentencing. However, as a matter of law, the judge cannot promise or commit himself to a sentence before he actually adjudicates and in the past, some authorities have stated that it is a bad practice even to give such an indication.
It is submitted that for such cases of simple guilty pleas, the current practice should be maintained and the Director of Public Prosecutions' direct involvement or that of his specially appointed nominee, is neither necessary nor practical. Were this to be required for each such case, of which there are already several, there would result unnecessary delays. Of course in any event, the Director of Public Prose-cutions reserves his all-encompassing power under the Constitution to intervene in any criminal case at any stage before its completion and has exercised this power in the past, from time to time.
The common law as to the factual basis on which a court should proceed on such guilty pleas should also be preserved, allowing the judge to take sworn evidence of the facts and where this is not done, requiring him to proceed on the accused's account.
We therefore propose that Section 4 and related sections of the bill be amended to take account of the matters in the paragraphs above or that other sections be added to deal with guilty pleas simpliciter. It is proposed that any such amendment should provide that where persons intend to plead guilty:
i. They must so indicate to the prosecution.
ii. They may have discussions with the prosecutor as to the charge or charges which they will plead to.
iii. On a guilty plea, the judge must reduce the sentence by one third unless there is specific function of other aggravating factors which justify a higher sentence.
We emphasise that the bill as currently drafted, does not address the kinds of cases referred to above which even now constitute the much greater number of cases with respect to which the probability of a guilty plea will arise.
PLEA BARGAINING
Fundamental to our criminal justice system is the adversarial process in which the rights of the accused are protected by an attorney prior to trial and in a court setting, ultimately controlled by an impartial referee in the person of the presiding judge, as well as a rational system of sentencing, where, but for mitigating factors, similar penalties are awarded for the same or similar offences.
The impact on these principles of plea bargaining as contemplated by the bill requires careful consideration.
Under the proposed law, the accused 'purchases' a reduction in sentence in exchange for providing substantial assistance to the prosecutorial arm. We ask the following be noted:
It is against the spirit and letter of our Constitution for anyone to give evidence based on force or inducement.
In all criminal trials, the accused is entitled to disclosure of all relevant material in the possession of the prosecution or any arm of the prosecution.
The Director of Public Prosecutions' history of disclosure in this jurisdiction has come under criticism from our superior courts on a number of occasions, with the courts having had to intervene to correct injustice occasioned by failure to disclose material to the defence.
From the time an accused person is arrested to the time he or she is taken before the court he or she is subjected to the elaborate and powerful machinery of the state-funded police and other prosecutional arms of the state.
This by itself places great pressure on the accused and it is our experience that from the very earliest stages, the police begin to put pressure on the accused to 'confess' to 'plead', to 'assist'. This is of course not necessarily inconsistent with good policing. However, viewed objectively, the imbalance and the potential for perjured evidence against others and false confessions cannot be ignored.
It is in this context that we have sought to examine the proposed legislation by which, in exchange for assisting the prosecutorial arm, an accused's sentence is reduced.
We have noted that the bill seeks to include certain safeguards: the right of representation; the requirement that an attorney signs off on any plea agreement; the stipulations as to what must be included in an agreement and the final power that remains in the presiding judge to reject any such plea agreement.
However, there remains concern as to the fair operation of the system proposed and its potential to undermine integral bases of our criminal justice system and ultimately, its integrity and public confidence in our judicial system.
Firstly, the principle that a witness must not give evidence based on some expectation of gain or coercion is per se compromised by the fact of the plea bargain agreements contemplated by the bill. We must face squarely the fact that a principle designed to ensure that evidence is true may be being sacrificed on the altar of expediency.
To minimise the risks attendant on the legitimisation of plea bargaining, we propose that where persons who give evidence as a consequence of a plea bargain agreement, the law must stipulate for corroboration of that witness's evidence whether he is co-accused in relation to the particular offence or has pleaded guilty in relation to a separate crime.
See Part II in tomorrow's Gleaner.
Jacqueline Samuels-Brown is chairperson of the Criminal Law and Procedure Commitee of the Jamaican Bar Association.
