RECENT indications by Justice Minister Delroy Chuck that he will be consulting with Director of Public Prosecutions (DPP) Claudette Thompson, KC, regarding greater use of plea bargaining agreements as “far too many cases are being tried”, seem to have found favour with segments of the defence Bar.

The justice minister, speaking during the opening ceremony of the 2026 Strategic Management Retreat at AC Hotel Kingston last Monday, said he is of the belief that “the DPP, the officers of the DPP, and the clerk of courts will have to find a way where they can initiate with the defence how they can plead guilty and bargain over sentences, or even bargain on a lesser charge”.

Chuck, in stating that ways and means must be found to complete criminal cases within a reasonable time, said mediation is another area he would be exploring with the DPP.

Commenting on the justice minister’s indications last Wednesday, defence attorney Tamika Harris told the Jamaica Observer, “If the Government genuinely wants plea bargaining to reduce court backlog the legislation must give an accused person a meaningful reason to plead guilty. A plea bargain cannot work unless there is a real bargain.”

In pointing out that under Section 5(2A) of the Plea Negotiations and Agreements Act, in firearms matters, the accused’s obligations include providing information which assists the Crown in preventing, detecting, or investigating the offence or another offence, Harris said, “The problem is simple: What happens when the accused genuinely has no information to give?

“He cannot provide information about other firearms, ammunition, or offences if he does not have that information. In those circumstances he may have very little to offer the prosecution beyond his willingness to plead guilty. There must be something in it for the accused,” she said.

According to the defence attorney, plea bargaining is supposed to be a bargain.

“The accused gives up his right to have the prosecution prove the case at trial. In return, he should receive a meaningful benefit. However, the legislation does not provide a sufficiently clear and immediate incentive for an accused facing a mandatory minimum sentence to plead guilty. The sentencing relief comes after conviction,” Harris said.

HARRIS… the legislation does not provide a sufficiently clear and immediate incentive for an accused facing a mandatory minimum sentence to plead guilty

Under Section 42K of the Criminal Justice (Administration) Act, where a mandatory minimum sentence applies, the judge must impose that minimum sentence. If the judge considers it manifestly excessive and unjust a certificate may then be issued allowing the accused to seek leave to appeal.

“The accused, therefore, cannot know at the time he is considering a plea that the sentence will, ultimately, be reduced. He must first be convicted and sentenced and then pursue the appellate process. The legislation, therefore, creates a fundamental problem — the accused is being asked to give up his right to a trial, but in many cases he has no meaningful benefit to receive in return,” said Harris, who serves as a member of the Bar Council of the Jamaican Bar Association (JAMBAR) and is chair of its Criminal Practice and Procedure Subcommittee.

Similarly, defence attorney Denise Hinson told the Sunday Observer last Wednesday that the conversation needs to be had as it is necessary and timely.

“I am confident that the learned director [DPP] shares some of the concerns and I know she will have ideas. I can’t speak for all the defence but I am, certainly, and my friends, are willing to work to deal with this backlog, too, because it affects us too and it affects our practice,” said Hinson.

“There is this misconception that the defence drags out matters because it is financially beneficial. No, there are very few clients who can pay for going to court for seven to eight years, so it is not financially beneficial for us, contrary to popular belief,” she added. “And when you have, for example, a legal aid matter for three to four years, by the fourth year…you are paying to go to court for the client, so it has to be dealt with,” Hinson added.

She said she is also of the opinion that the Firearms (Prohibition, Restriction and Regulation) Act, 2022, which prescribes a mandatory 15-year sentence for violations, should be addressed.

“For the Firearms Act, specifically, one of the biggest challenges for the defence is that when someone goes to trial it leaves the court with the discretion to issue a certificate which, in simplistic terms when issued, the judge is saying, ‘If I were not bound by this mandatory minimum I would impose a lesser sentence.’ That certificate can be given to the convicted person to be taken to the Court of Appeal for the court to see whether it accepts the judge’s recommended sentence, however that certificate is only available to persons who go to trial, it is not available to persons who plead guilty, which, to me, is absolutely counterproductive.

“That could not have been the intention of Parliament at all, but it is what’s there. Oftentimes defence counsel takes the matter to trial even though the evidence is quite strong against the accused, [but] because counsel believes that the mandatory minimum is unduly harsh, he or she goes to trial in the hopes that the judge will issue the certificate…we can’t get the certificate any other way,” argued Hinson as she agreed that there are way too many trials.

“I can speak for the St Catherine Circuit [Court]. I recall normally it was trial within a few months, now trial dates are being set one year, a year and a half [away]— that is very unusual for the St Catherine Circuit….matters stay there three to four years, and that never used to happen, but that has happened in the last few years,” she added.

SHAW…I wanted to use the legislation and the clerk informed me that he cannot negotiate as a prosecutor could (Photo: Naphtali Junior)

Fellow defence attorney Alexander Shaw is adamant that the current plea bargaining legislation needs to be amended.

“The Act is a very good tool for both defence and prosecution but the limitation lies with respect to the parish court level because a clerk does not have the powers to actually engage the legislation. I have had the experience recently where I wanted to use the legislation and the clerk informed me that he cannot negotiate as a prosecutor could. The parish court clerk does not have the power as, say, a prosecutor at the high court or Supreme Court level, so the legislation needs to be amended because it is really the DPP who has the power,” Shaw told the Sunday Observer.

He is also of the view that the new Firearms Act stands in the way of effective use of the plea negotiations.

“From my day-to-day experience, what I am seeing is that nobody who is charged for a firearm offence is willing to plead guilty because of the mandatory 15 years, even with respect to imitation firearms. The certificate only comes in after the fact, meaning after the judge has passed a sentence, but the plea negotiation Act is prior to sentencing and gives you the leverage to decide what your fate should be…so that certificate is of no real advantage in the context of the plea negotiations Act.

“So I think he is spot on, not just in terms of having the discussions but I think it needs parliamentary intervention. It would help if there is an amendment to not just the plea negotiations Act but also the Firearms Act,” argued Shaw.

He added: “Even though the idea is that our legislators ought to be tough on crime, it has to be within the context of the resources available to treat with matters. So it makes no sense there is a law on the one hand but it is counterproductive because you have to expend so much resources to try these matters, and many…times the lawyers are being paid by the State. There are so many attorneys who are being paid by the State in the Gun Court because these persons don’t have the finances, so it is costing the State to pay everybody, pretty much,” added Shaw as he pleaded for more public education on the issues.

“I have seen, in recent times, where the DPP took a guilty plea and the public was at her neck saying she should have gone to trial. As the name suggests, it is negotiations that are taking place, so you are bargaining, and one side has to give up something in consideration for the other. The judge’s hand is tied because the judge has to accept whatever agreement is put forward by the attorneys.

“Defence attorneys are willing to use it, especially when we are up against a mountain of evidence, but there is the unwillingness to use it when there is a high-profile matter, so that is also a factor that needs to be taken into consideration as well,” argued Shaw.