The Criminal Procedure (Plea Bargaining) Rules

Edition: 2022-12-31 · In force

1. Citation.

These rules may be cited as the Criminal Procedure (Plea Bargaining) Rules, 2018.

2. Plea agreement.

A plea agreement may be entered into between the prosecutor and an accused person where —

(a)an accused person has been charged in court; and

(b)at any time before the court passes judgment.

3. How to handle information obtained from an accused person.

The information obtained from an accused person during the course of plea negotiations shall not be used against him or her during the prosecution of the case if the plea negotiations are ultimately unsuccessful:Provided that where the failure of plea negotiations is on account of an act or omission by the accused person, the information obtained during plea negotiations may be used during the prosecution of the accused person.

4. Private prosecutor may enter into plea negotiations.

(1)A private prosecutor shall notify the Director of Public Prosecutions in writing fourteen days prior to the commencement of his or her intention to enter into plea negotiations with an accused person.

(2)The notification required under subrule (1) shall be accompanied by all relevant materials the private prosecutor intends to rely on in the negotiation process.

(3)Where plea negotiations between a private prosecutor and an accused person are successful, the private prosecutor shall notify the Director of Public Prosecutions of the outcome within seven days and supply the relevant materials relied on during the plea negotiations and a copy of the draft plea agreement.

(4)Where the Director of Public Prosecutions approves a plea agreement between a private prosecutor and an accused person, the Director of Public Prosecutions may, within thirty days of being notified under subrule (3), authorise in writing the private prosecutor to lay the agreement before the court.

5. Approval of plea agreement.

A prosecutor shall obtain written approval from the Director of Public Prosecutions or from a person authorised in writing by the Director of Public Prosecutions in this regard before entering into a plea agreement with an accused person.

6. Initiation of plea negotiations.

Plea negotiations may be initiated by a prosecutor or the accused person or the accused person's representative.

7. Consultations by prosecutor.

(1)Before entering into a plea agreement with an accused person, the prosecutor shall—

(a)consult with the investigating officer of the case;

(b)give due regard to the nature of and the circumstances relating to the case, the personal circumstances of the accused, the interests of the community; and

(c)unless the circumstances do not permit, afford the victim or the victim's legal representative an opportunity to make a representation to the prosecutor regarding the terms of the agreement.

(2)Despite the provisions of subrule (1), the prosecutor shall maintain the sole discretion on whether or not to enter into a plea agreement with the accused person.

8. Compensation.

(1)A plea agreement may include a clause for the payment of compensation to a victim by an accused person.

(2)Where a plea agreement includes a clause for compensation payable to the victim by an accused person, the value or form of compensation shall be as agreed to after negotiations between the victim and the accused person and endorsed by the prosecutor if, in his or her opinion, the compensation serves the ends of justice.

(3)A proposal to include the payment of compensation to the victim in a plea agreement or any negotiation for compensation payable to the victim may be made or initiated by the accused person or the victim.

(4)Where negotiations for compensation payable to the victim break down or the prosecutor determines that the proposed compensation defeats the ends of justice, the prosecutor shall not include the proposal for compensation in the final draft of the plea agreement.

9. Forms.

(1)A plea agreement shall be in the form set out in the Schedule to these rules and shall comply with the provisions of sections 137E and 137F of the Criminal Procedure Code (Cap. 75).

(2)Notwthstanding the provisions of subrule (1), the Director of Public Prosecutions may develop other forms for use in drafting plea agreements:Provided that any other forms developed by the Director of Public Prosecutions shall comply with the provisions of sections 137E and 137F of the Criminal Procedure Code.

10. Factual basis.

The prosecutor shall present the court with the factual basis of a plea set out in the plea agreement between the office of the Director of Public Prosecutions and the accused person by laying before the court the final plea agreement at the hearing where the accused person pleads guilty in accordance with the terms of the plea agreement.

11. Mitigating circumstances.

(1)The prosecutor shall present to the court all circumstances of the case including any mitigating circumstances in favour of the accused person at the hearing where the accused person pleads guilty in accordance with the terms of the plea agreement.

(2)The prosecutor shall, at the time that the accused person pleads guilty, call the court's attention to section 137I of the Criminal Procedure Code (Cap. 75) and the Sentencing Policy Guidelines, 2016.

12. Sentencing recommendations.

(1)A prosecutor and the accused person or his or her legal representative may each make a specific recommendation to the court as to the sentence to be imposed and include the recommendation in the final plea agreement.

(2)Notwithstanding the recommendation of the parties, the court shall retain sole discretion in sentencing.

(3)Where the prosecutor recommends to the court the imposition of a sentence that is more severe than the recommendation included in the plea agreement under subrule (1), the accused person may withdraw his or her plea of guilty and set aside the plea agreement.

(4)Where the accused person recommends to the court the imposition of a sentence that is less severe than the recommendation in the plea agreement, the accused person shall not be permitted to withdraw his or her plea of guilty on that ground alone.

(5)Where the accused person recommends to the court the imposition of a sentence that is less severe than the recommendation in the plea agreement, the prosecutor may recommend to the court any other appropriate sentence.

13. Representation.

(1)Where the accused person is not represented by a legal representative, the prosecutor shall inform him or her of his or her right to have a legal representative or any other party of his or her choice.

(2)Where the accused person is a child who has a legal representative, the plea agreement shall be executed by the prosecutor, the child and the child legal representative.Provided that the court shall ascertain the competency of the child to enter into the plea agreement through voire dire examination.

14. Finalisation of agreement.

(1)A plea agreement shall be finalised when the prosecutor and the accused person sign the agreement.

(2)Where applicable, the legal representative shall also sign the plea agreement.

(3)Where the plea agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement.