DPP wants more persons to use “plea bargaining”
By Latoya Giles
Director of Public Prosecutions (DPP), Shalimar Ali-Hack, says that she wishes to see more defendants
and their lawyers making full use of the plea bargaining legislation. The DPP, in an exclusive interview with this newspaper, went through several aspects of this relatively new law.
She explained that plea bargaining is governed by the Criminal Procedure (Plea Bargaining and Plea Agreement) Act of 2008.
Plea Bargaining is basically a discussion held with the view to arriving at an agreement with the defendant, his lawyer and the DPP, or her authorized representative.
Since the enactment of this piece of legislation, the DPP observed, there has only been three plea bargaining agreements that have been entered into with defendants. The first such plea deal in the High Court was that of murder accused, Dawan Kawal, who pleaded guilty to the lesser count of manslaughter and was sentenced to seven years imprisonment by Justice William Ramlal.
Kawal subsequently testified against his co-accused, Burt Lancaster, who was convicted by a mixed Demerara Assizes jury and sentenced to death by Justice Roxanne George-Wiltshire at the January criminal sessions.
But why is there such underutilization of this Act? The DPP said that for a plea bargaining agreement to be entered into, the offer to do so has to be made by the defendant or his attorney. “The onus is on the defendant or accused to initiate such a course of action. But since there are such inordinately long delays for cases to be heard and concluded, and long adjournments granted in the Magistrates’ Courts between trial dates, there is the likelihood that witnesses will become frustrated and fail to show up when required to do so.
Consequently, cases are dismissed due to insufficient evidence. Accused persons no doubt would prefer to wait it out and be acquitted than enter into a plea agreement which requires pleading guilty to an offence and have a conviction recorded against them.”
The DPP sought to highlight one matter from the Magistrate’s Court which has been adjourned to September 6, 2012. The accused has moved to the High Court seeking bail pending trial.
The DPP noted that once there is a court system that is functioning properly and matters are dealt with expeditiously, then the Plea Bargaining Act would more than likely be utilized and many more cases can be dispensed with than is the situation that currently obtains.
The DPP also expressed the hope that attorneys would continue to take the time to study the Act, familiarize themselves with it, and advise their clients that such a course of action is available to them.
“Hopefully in the immediate future we will see this Act being utilized as it ought to be.”
According to Mrs. Ali-Hack, the prosecutor and the attorney-at-law for the accused or the accused person, if he or she is not represented by an attorney, may enter into a plea bargain. It was noted that a prosecutor within the chambers of the DPP, a police prosecutor or a lawyer representing the prosecution cannot enter into a plea bargaining unless they first obtain written authorization from the DPP to do so.
According to the DPP, if this is not done, none of the parties can proceed. The DPP further explained that a plea bargaining can take place at the commencement of a trial or during it, but before sentence is pronounced.
The DPP said that it is pertinent in any plea bargain that the victim’s relatives express their views before the agreement is concluded. It was noted that the prosecutor shall not enter into plea agreement for an offence that is not disclosed by the evidence or for an offence that inadequately reflects the gravity of the provable conduct of the accused person.
Notwithstanding, the DPP noted that at anytime the accused person or the prosecutor can withdraw from the agreement. She explained that this can happen for various reasons, such as if the accused entered into such a plea deal as a result of an improper inducement, or as a result of misrepresentation as to the substance or consequences of the plea agreement.
The prosecutor can withdraw if there is misrepresentation of facts, or fraud or inducement.
The DPP said that she would like to see more defendants and their lawyers taking full advantage of this law. She said that the law works faster and is efficient.
Attorney General Anil Nandlall had told this newspaper that the law was being underutilized.
According to Nandlall, the legislation should be used with more frequency; however it is a facility which largely depends on the parties themselves, the accused person(s), the lawyers, the prosecutors and the relatives of the victim.
He explained that those parties drive the process and success of the legislation. Nandlall told Kaieteur News that the benefit which can be derived will depend on whether the parties are prepared to use it.
The legislation will benefit a person who has entered into a plea agreement and is cooperating with law enforcement authorities, or whose cooperation is beneficial to the administration of criminal justice.