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Role of Plea Bargaining for ensuring access to justice- A Critical Analysis

Justice delayed is justice denied-William Ewart Gladstone
Over a long period of time justice has been seen a balance between the right and the wrong. It has always been in perspective that no matter what there will always be an authority that will ensure justice for every conflict whether criminal or civil in nature.

In ancient times, the practice of delivering judgments and decisions over conflict has been done neither by the nobility or the royalty, and therefore there was no machinery to question the competency of the judge or such authority. There was no authority to ask for the reasons for delay in justice or misuse of justice.

However, in modern times it is the judges appointed by the state that deliver judgments or in other words, justice. There is an established machinery of keep a check upon the functioning of such judiciary and its’ powers.
The expression by William Ewart Gladstone that, justice delayed is justice denied, is true to the very meaning of it. It predominantly establishes that failure of justice is not just in delivering wrong judgments but also in the delay of it. A delay in justice would result into various consequences to be suffered by the affected person; and that would be a failure of justice.

Plea Bargaining- A Conceptual study:

Criminal justice today is for the most part a system of pleas, not a system of trials.[1]-Justice Anthony Kennedy

Plea Bargaining is the concept whereby the defendant and prosecutor reaches an agreement that states that the defendant agrees to plead guilty for a lesser charge in exchange for a more lenient sentence or for drop of any other charges.

It is an agreement between the parties to the conflict, which results into the settlement of the charges levied against the defendant by the prosecutor.

Plea bargaining is not of one type it basically involves three areas of Bargain:

  • Charge Bargain: It is when the prosecution agrees with the defendant to plead guilty to a lesser charge or only for some of the charges framed against him. It gives the accused an opportunity to negotiate with the prosecution for reduction of the number or gravity of charges framed against him. For example, a defendant charged with lurking house breaking at night may be offered to plead guilty to just house breaking
  • Sentence Bargain: This takes place when an accused is told in advance what his sentence will be if he pleads guilty. This can help a prosecutor obtain a conviction if, for example, a defendant is facing serious charges and is afraid of being hit with the 'maximum' sentence.
  • Fact Bargaining: The least used negotiation involves an admission to certain facts (stipulating to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.[2]
Plea bargaining has been considered as a key method to handle various conflicting interests. It has been in the judicial systems of many countries for a long period of time. Plea Bargaining is considered widely for its’ effective result in disposal of pendency of cases in the courts of justice.

However, many observers of law and justice do not consider plea bargaining as an effective way of dispensing justice in a judicial way. It has been argued that plea bargaining in many ways harms the true nature of justice and fair treatment. It is often argued that plea bargaining offers the defendant an easy way out of a criminal trial that might result into a much stricter sentence and therefore plea bargaining is hurting the very concept of justice and the judicial system.

Plea Bargaining in India

For a long period of time, the Supreme Court of India was against the concept of plea bargaining. It always considered it as a tool for denying a fair delivery of justice to the affected.

Supreme Court held in case of, Uttar Pradesh vs. Chandrika[3], that court cannot dispose of criminal cases on the basis of plea bargaining, it has to decide it on the merits’ of the case and even if the accused confesses to the guilt, the sentence shall be delivered appropriately.

Despite a strong opposition by the Supreme Court, the Parliament inserted a new chapter, XXIA on 'plea bargaining', in the Code of Criminal Procedure through the Criminal Law (Amendment) Act, 2005 inserting sections 265-A To 265-L in the Code of Criminal Procedure providing for plea bargaining in certain specified types of criminal cases.

The chapter provides for various offences in which plea bargaining may be considered as a method of conflict resolution and the process of plea bargaining as well.

Plea Bargaining is applicable only in respect of those offences which are punishable with an imprisonment of up to 7 years. It does not apply where such offence affects the Socio-economic condition of the country or has been committed against women or committed against a child below the age of 14 years.

The application for plea bargaining should be filed by the accused with free consent before the court trying the offence. The complainant and the accused are then given a certain period of time by the court to work out a satisfactory disposition of the case. The court may reduce the sentence with a maximum of up to ¼ of the applicable sentence, if the accused pleads guilty.

According to section 265-B(4) of the code of criminal procedure, 1973, the proceedings to plea bargaining should be conducted in camera by the court.

Section 265-G of Cr.P.C. provides that, there shall be no appeal in the case where judgment has been pronounced by the court on the basis of plea bargaining. However, a Special Leave petition or a Writ under article 136 or 226, 227 of the Constitution of India respectively, may be filed against such judgment.

The first ever successful case of Plea Bargaining reported in India was Vijay Moses Das v CBI[4] Justice Prafulla Pant of Uttarakhand High Court, hearing the application directed the trial court to accept the plea bargaining application.

Plea bargaining in India has played a significant role in disposal of cases. However, even today plea bargaining is not opted in majority of the cases as parties consider it as an abuse of justice or unjustified towards the victim of the crime. Plea Bargaining in India is a practice that not even courts considered as an effective way of delivering criminal justice. The apex court was itself against the implementation of plea bargaining in India. However, the parliament deemed it fit to include the provisions for plea bargaining in Indian law for an early and effective disposal of criminal justice.

Although plea bargaining has been an effective tool in many cases under Indian law, it has not been a very effective tool for cutting down the pendency of cases in Indian courts.

Out of 9930625 cases under IPC disposed by the courts in 2014, plea bargaining took place in a mere 34931 cases and out of 10,502,256 cases under IPC disposed by the courts in 2015, plea bargaining took place in a mere 4,816 cases.[5]

Therefore it is conclusive by above stats that although plea bargaining in all its’ concept focuses on the better rate of disposal of cases, it hasn’t been accepted in India as an effective form of disposal of cases. Not only the parties to conflict but also the courts have been reluctant in adopting the practice of plea bargaining in India. However, in future it may be adopted more commonly in criminal trials under Indian Law.

Plea Bargaining in other countries

Plea Bargaining has been adopted by many countries around the world. It is a concept of common law and therefore has been adopted by common law countries.

Although it has not been very successful in India, it is a more successful practice across various countries including the United States, Canada and many others.

Plea Bargaining in USA:

Plea bargaining is a significant part of the criminal justice system in the United States. A vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules.

In a criminal trial in the United States, the accused has three options as far as pleas are concerned: A) guilty, B) not guilty or C) plea of nolo contendere i.e. (I do not wish to contend).
Plea bargaining was initially not favored in colonial America but it gained increasing acceptance with the rise in population by which courts became overcrowded, and trials became lengthier.

The first case of US Supreme Court noticed in this regard is Brady v. United States[6]. In this case the Supreme Court of USA held:
….merely because the agreement was entered into out of fear that the trial may result in a death sentence, would not illegitimise a bargained plea of guilty.

The U.S. Supreme Court has approved practices such as plea bargaining when properly conducted and controlled. A majority of criminal cases in USA are conducted by Plea bargaining however, free consent and judicial scrutiny are two important aspects.

The courts have a very vital role to play in it. It has to ensure that the plea bargaining is voluntary and the accused is given the protection of secrecy and all the parties are participating freely and no one is subjected to any coercion or duress of another.

Plea Bargaining in Canada

In Canada, plea bargaining is an adopted practice. Although it is not as much accepted in the neighboring country of the United States, yet it plays a significant role.

In Canada, the most unique feature of plea bargaining is that it is allowed even after the sentence has been passed by the court. This is because in Canada the Crown has a very broad right to appeal acquittals, and also a right to appeal for harsher sentences except in cases where the sentence imposed was maximum allowed. Therefore, in Canada, after sentencing the defense sometimes has an incentive to try and persuade the Crown to not appeal a case, in exchange for the defense also declining to appeal. While, strictly speaking, this is not plea bargaining, it is done for largely the same reasons.[7]

However, in Canada, unlike India or the US, the final decision to accept or reject a common settlement relating to plea bargaining between the parties is upon the judge. He may accept or reject the settlement as it is not a party to the negotiations.

There are no express provisions in Canadian law that regulates the practice of plea bargaining or requiring the parties to disclose before the court about any pre-trial settlement reached between the two and in spite of the recommendations of the Canadian Sentencing Commission (1987) and the Law Reform Commission of Canada (1989), there is still no formal procedure which requires Canadian courts to scrutinize the contents of a plea bargain and to ensure that there is adequate protection for the rights and interests of all of the affected parties – the Crown, the accused, the victim(s) and members of society in general.[8]

From the point of view of the accused, the lack of a formal procedure requiring the disclosure of a plea bargain by counsel means that there is currently no independent judicial review of whether they have entered into such an agreement voluntarily and with full knowledge of the potential ramifications.

In R. v. Neale (2000), the defendant had agreed to plead guilty to a charge of robbery in exchange for the Crown's undertaking to make a submission in support of a five–year sentence, less the time already spent in custody. Unfortunately, counsel neglected to inform the trial judge that this plea bargain had been reached. Subsequently, the trial judge sentenced the defendant to seven years in prison.

Upon the appeal against sentence, Justice Lambert noted the serious consequences that ensued as a consequence of this failure of communication:
If counsel for the Crown or counsel for the defense had told the sentencing judge at the appropriate time that an agreement had been made whereby the accused would plead guilty and, in exchange, the Crown would make a submission that a five year sentence, less remand time, would be appropriate, then under the authorities, the sentencing judge would have been required to give very serious concern and consideration to that submission. I do not doubt that she would have done so. That would be particularly so where a joint submission was made by counsel for the Crown and counsel for the defense.[9]

And therefore, although Canadian law does accept the practice of plea bargaining as an efficient tool for disposal of cases and administration of justice, it does not provide for a formal procedure in relation to disclosure of such before a court.

Also, the discretion of judge for sentence to be passed even after a settlement has been reached by the parties through plea bargaining is a challenge towards effectiveness of the plea bargaining as a regular practice to deal with criminal proceedings.

Plea bargaining in Pakistan

Plea bargain as a formal legal provision was introduced in Pakistan by the National Accountability Ordinance 1999, an anti-corruption law.

A special feature of this plea bargain is that the accused applies for it, accepting guilt, and offers to return the proceeds of corruption as determined by investigators/prosecutors. After an endorsement by the Chairman National Accountability Bureau, the request is presented before the court, which decides whether it should be accepted or not. If the request for plea bargain is accepted by the court, the accused stands convicted but neither is sentenced if in trial nor undergoes any sentence previously pronounced by a lower court if in appeal. The accused is disqualified to take part in elections, hold any public office, or obtain a loan from any bank; the accused is also dismissed from service if a government official.

In other cases, formal plea bargains in Pakistan are limited, but the prosecutor has the authority to drop a case or a charge in a case and, in practice, often does so, in return for a defendant pleading guilty on some lesser charge. No bargaining takes place over the penalty, which is the court's sole privilege.[10]

Plea Bargaining in other countries

Many other common law countries such as United Kingdom, provides for plea bargain as a method of disposal for criminal law cases. Every country accepts the concept with some modifications to suit the nature of the legal system prevalent in the country.

However, No country in the world has a provision or application of plea bargaining as wide as in the USA. The practice of plea bargaining is so prevalent in the US that it is said that without plea bargaining the judicial system of the country would collapse and this is considered as a significant reason that the pendency in the criminal courts have fallen a significant percentage in the US.

Civil law countries such as China, Georgia, Italy, Denmark, France, Germany and Japan, have a hard time implementing the concept of plea bargaining in their legal structure. It is because of the sole reason that in civil law there is no concept of plea, the acceptance of guilt by the accused is treated as a confession and is taken as an evidence against the accused, however the prosecution still has to present its’ full case before the court. Thereby the main objective of plea bargaining, to cut the time of proceedings and provide for a speedy dispersion of criminal trial is not met in civil law countries.

However, many civil law countries including China, France, Georgia, Germany etc. have started to implement plea bargaining into their systems by modifications according to their legal structure.

Conclusion
The concept of plea bargaining is considered as an effective tool to diminish the pendency of cases and faster administration of justice as well. In plea bargaining, the prosecutor and the defendant reach out upon a settlement whereby the defendant would plead guilty in exchange for a lesser charge or a reduced sentence.

In India, chapter XXIA of the Code of Criminal Procedure, 1973, deals with the subject of plea bargaining. It provides for the procedure and other provision concerning the implementation of plea bargaining as an alternate method of dispute resolution than criminal trial.

The judiciary in India was against the implementation of plea bargaining and often stated that it is not an effective way and is against the concept of natural justice. However, the parliament by way of the Criminal law (amendment) act, 2005 inserted chapter XXIA in the Cr.P.C. 1973.

Although it has been a part of the Indian law for almost 15years, Plea bargaining still hasn’t become part of mainstream dispute resolution methods. Less than 0.4% of total cases filed under the Indian Penal Code are resolved by way of plea bargaining. The main reason behind such a low number is the lack of knowledge among the people at large about the concept of plea bargaining and the lack of interest of courts in the same.
In countries such as United States, plea bargaining is the first preferred way of dispute resolution in criminal matters. Plea bargaining has developed over the years and today more than 90% cases are dissolved by way of plea bargaining in the US.

Apart from the US, no other country has such a large percentage of plea bargaining implementation. Even in Canada, the concept of Plea Bargaining is relatively new and less prevalent. In United Kingdom, plea bargaining is not as prevalent as in US.

Civil law countries, such as France and China, have recently included plea bargaining in the legal systems as plea bargaining is a concept of common law.

Therefore it is observed that, it is the US that started the concept of plea bargaining and has proven to be an example for other countries as its application of plea bargaining system has resulted in reduction of pendency in criminal courts around the country.

Even after its success, jurists and legal thinkers have condemned the practice of plea bargaining terming it as immoral and ineffective way of treating crimes in the society. The foremost argument is that in present times, where almost every legal system runs upon the reformative school of punishment, plea bargaining clearly works against such system as it provides an easy way out to the accused.

However there is a need to understand that plea bargaining is a method by which accused pleads guilty for a lesser crime and is not let-go off without any punishment. Also, with such a large number of pending cases, plea bargaining is the need of the hour.

It may be better understood in the words that: Some justice is better that No Justice

End-Notes
  1. Missouri v. Frye (2012)
  2. www.expertlaw.com/library/criminal/plea_bargains.html
  3. 2000 Cr.L.J. 384 (386)
  4. Crim.Misc. Appln 1037/2006
  5. http://www.ncrb.gov.in/StatPublications/CII/CII2014/Table_Contents.htm
  6. 397 U.S. 742 (1970)
  7. https://www.thecanadianencyclopedia.ca/en/article/plea-bargaining
  8. https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr02_5/p3_3.html#ftn15
  9. https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr02_5/p3_3.html#ftn15
  10. https://www.academia.edu/35563178/PLEA_BARGAINING_IN_CRIMINAL_PROSECUTION  

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