Landmark Plea “Bargaining” Bill to soon be tabled in National Assembly

• Jun 28, 2023
• news
• 144

…will provide for plea deals between suspects, prosecution

Attorney General Anil Nandlall, SC
A Bill that will revolutionise the legal landscape and allow for defendants in criminal cases to make plea deals with State prosecutors, has been drafted and will soon make its way to Cabinet and eventually, the floor of the National Assembly.
According to a statement from the Legal Affairs Ministry, the Bill seeks to repeal the Criminal Procedure (Plea Bargaining and Plea Agreement) Act Cap 10:09. It is designed not only to ensure proper sentencing for offenders, but to expedite criminal proceedings and hopefully, reduce the court backlog.
“The Bill seeks to provide for the establishment of a system of plea discussion and plea agreements in criminal proceedings. Its primary intent is to provide the opportunity for prosecutors and accused persons to meet under specific circumstances and negotiate a settlement acceptable to the principles of justice,” the Ministry of Legal Affairs said.
“This will inevitably save judicial time, reduce the backlog of criminal cases, reduce the prison population on remand while at the same time ensuring that accused persons face penalties proportionate to the crimes committed.”
Back in April 2023, Attorney General and Legal Affairs Minister Anil Nandlall had solicited submissions on the draft Criminal Procedure (Plea Discussion and Plea Agreement) Bill from the Chambers of the Director of Public Prosecutions (DPP) and the Office of the Police Legal Advisor.
Meanwhile, submissions were also invited from the Guyana Bar Association, the Berbice Bar Association, and the Law Reform Commission. It was further noted that the Bill will soon be taken to Cabinet and thence to be laid in the National Assembly.
A perusal of the Bill shows that Clause 5 provides for a plea deal to be negotiated before charges are laid. Meanwhile, Clause 6 of the Bill mandates that the DPP’s written permission must be obtained before a prosecutor can enter into a plea discussion or a plea deal concluded. Clause 7 also prohibits any improper inducements to encourage the accused to enter plea discussions.
Meanwhile, the Bill is clear that a plea deal cannot be entered into with someone who does not have a lawyer, unless that person has been advised about his constitutional rights, including the right to legal representation.
According to Part Two of the Bill, “A prosecutor shall not initiate a plea discussion with a suspect who is not represented by an attorney-at-law unless; (a) the prosecutor has informed the suspect; (i) of his or her right to be represented by an attorney-at-law during plea discussions; (ii) of his or her right to protection against self-incrimination; (iii) of his or her right to be presumed innocent; (iv) of his or her right to remain silent; and (v) that he or she may elect to have a third party of his or her choice present during the plea discussions.”
The Bill also sets out the procedure of filing a plea agreement, while Clause 25 states that a plea agreement is not binding on the court. In case the Judge or Magistrate accepts a plea agreement, the accused will be requested to plead to the charge.
“Clause 29 of the Bill provides that the Director of Public Prosecutions may appeal to the Court of Appeal where a court has rejected a plea agreement. Clause 30 of the Bill provides the grounds upon which an accused may withdraw from a plea agreement.”
“Clause 31 of the Bill provides the grounds upon which the Director of Public Prosecutions may seek the leave of the Court of Appeal to have a plea agreement, a conviction or a sentence set aside. Clause 32 of the Bill provides for the extension of time for filing a notice of appeal,” the Bill’s explanatory memorandum states.
Clause 33 of the Bill meanwhile explains that the evidence of certain matters in a plea agreement, which is later withdrawn, shall not be admissible against the accused who entered into the plea agreement or was a party to a plea discussion.
“Clause 34 of the Bill empowers a court to order that the records of plea discussions or a plea agreement be sealed, in the interest of justice and requires the court to give reasons for the order. Clause 35 of the Bill empowers the Minister to amend the Schedule by Order and Clause 36 of the Bill empowers the Minister to make regulations. Clause 37 of the Bill provides for the repeal of the Criminal Procedure (Plea Bargaining and Plea Agreement) Act, Cap 10:09. Clause 38 of the Bill saves any actions, proceedings and decisions in respect of plea discussions or plea agreements commenced or taken under the repealed Act, upon the commencement of this Act.” (G3)

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