Recently, Director of Public Prosecutions Paula Llewellyn informed that the Crown relied on evidence provided by a witness under a plea agreement to secure a conviction in the just-concluded case against Tesha Miller. Since this piece isn’t about that case, I will refrain from too many references to it, save for the fact that the witness successfully used the provisions in the Plea Negotiations and Agreements Act, 2017, which provide that a convicted person can enter into a post-conviction plea agreement to assist the Crown and secure a significant reduction in his sentence.

The particular provision in the Act which enables post-conviction negotiations is section 20, which provides that a convicted person may enter negotiations and assist the prosecution in exchange for a reduction in sentence or some other benefit.

Plea bargaining can be the first step towards rehabilitating convicted individuals, in as far as they acknowledge their criminal actions and concede the harm that has resulted. It shows that they are remorseful for what they have done, and this makes them more amenable to submitting themselves to programmes geared towards their reintegration into society.

Plea agreements, or plea bargain agreements, are not new and have been used extensively by our Caribbean neighbours and larger nations like the USA. As a matter of fact, around 2017 we were reliably informed by a US state prosecutor that 95 per cent of criminal cases are concluded by guilty pleas through plea negotiations and agreements. In other words, 95 per cent of those accused of crimes do not go to trial, but settle their cases through plea deals.

The Plea Negotiations and Agreements Act, 2017 (hereinafter referred to as the Act) provides the opportunity for an accused, or a convicted person, to enter into negotiations with the prosecution for the purpose of reaching an agreement that may result in either the charges being dropped or the sentence being reduced.

For example, a woman who is accused of murder may decide to plead guilty if the prosecution agrees to withdraw the charges or accept her plea to a lesser offence (manslaughter). The prosecution may agree if she offers to assist the prosecution with evidence on another crime, or promises to make restitution to any victim of her alleged crime, among other things.

Judge has final say

Once the agreement has been settled between the accused and the prosecution it must be presented to a judge designated to consider and decide whether it is acceptable to the court (plea judge). This, therefore, means that it is the judge who has the final say on the agreement.

In determining whether the plea agreement is acceptable, the plea judge must be satisfied that:

a) the plea was given voluntarily, without force, threats, or promises outside what was agreed;

b) the accused understands the agreement and its consequences;

c) there is a factual basis upon which the agreement was made; and

d) the agreement was not made contrary to the interest of justice.

Where the plea judge is not satisfied that the above conditions are met he may refuse to accept the plea agreement and:

i. inform the accused and the prosecution of the refusal and his reasons;

ii. explain to the accused that court is not required to accept the agreement; and

iii. give the accused an opportunity to withdraw the plea.

The refusal by the judge and withdrawal by the accused do not prevent the accused from entering into subsequent negotiations and agreements. If upon the plea judge’s refusal the matter proceeds to trial, any judge, other than the plea judge, will try the accused.

Let me hasten to highlight the fact that the provisions of the Act in no way affect an accused person’s right to plead guilty without entering into negotiations or agreements. That right remains sacrosanct. Additionally, an accused’s right to an attorney, whether privately or through legal aid, is also unaffected.

Who benefits from a plea agreement?

Some individuals may think that guilty pleas, by way of plea agreements, are more beneficial to the accused/convicted than the victim. This is understandable, especially where the accused receives a reduced sentence. If examined from a broader perspective, however, it becomes evident that all relevant stakeholders can benefit from plea agreements. It must be emphasised that a trial may result in an acquittal, despite the best efforts of the investigators and the prosecution.

Successive governments have implemented legislative and other policy measures to arrest crime. We must, therefore, vigorously employ all available legal means to be more effective.

It is no secret that the courts are bursting at the seams with criminal matters. The overall weighted average case congestion rate for all parish courts in 2018 was roughly 132 per cent, an indication that the criminal courts are carrying 32 per cent more than their current capacities (Chief Justice’s Annual Statistics Report for Criminal Matters in the Parish Court, 2018). Plea agreements could contribute to the reduction of the case load when matters that do not need to go to trial are filtered out. Other benefits of early pleas of guilt are:

– savings in the court’s resources;

– improvements in the efficiency of the justice system;

– sparing the complainants and witnesses the ordeal of attending court several times; and

– sparing the families of both the victim and the accused the trauma that may be associated with a criminal trial.

Families considered

As it relates to the accused’s family, where a plea judge has accepted a plea agreement and is considering whether to impose a lesser sentence, one of the factors he shall consider is “any injury suffered by the accused person or the accused person’s family, or any danger or risk of injury to the accused person or the accused person’s family resulting from the assistance or undertaking to assist”.

Deeply entrenched in our culture is the thought that to be an informer is a most egregious thing. This has resulted in a very pervasive view that “informer fi dead”, or in the North American rap music language — which is very influential in Jamaica — “snitches get stitches”.  The fear of repercussions is greater than any benefit they may derive.

On the other hand, a victim and his relative may object to a reduced sentence for an accused who pleads guilty to the commission of a crime that has caused pain and loss to the victim. It must be noted that the Act includes a provision that gives the prosecution the discretion to consult with a victim or a member of the victim’s family before concluding plea negotiations. Further, once an agreement has been reached the prosecution is mandated to inform the victim of the substance of the agreement, and the reasons for its constitution, unless such revelation will result in serious harm to the accused or some other person.

It is in recognition of the diametrically opposing views that the law was revised after very wide and detailed consultations with all major stakeholders, including the Bench, Private Bar (defence counsel), the Public Bar, the prosecution, and the police. All of these areas made valuable contribution which have resulted in a more balanced legislative framework for plea agreements.

The benefits of plea agreements far outweigh the perceived burdens, especially in light of the revised legislative scheme. The time has come for us to view mechanisms like plea agreements as more than just reducing sentences of accused persons. In my humble view, it can be a win-win for Jamaica if plea agreements are more widely embraced.

Karen Wilson is an attorney-at-law and director of legal services in the Ministry of Justice.