The plea-bargaining deal that the AG's Office reached with Darren Debono, It-Topo, about his involvement in a botched heist at HSBC Bank Malta cash depot 12 years ago, had given rise to a string of different interpretations and conspiracies that ended up with a street protest and calls for the resignation of the Attorney General, Dr Victoria Buttigieg. That event could possibly serve as a timely reminder that our plea-bargain legislation should be revisited, extended to the Magistrates' courts and fine-tuned with a series of safeguards to ensure that, one the one hand, accused persons are protected from being coerced into accepting a plea bargain and, on the other hand, to make plea bargaining fairer and transparent with judicial scrutiny to make sure that offers are not being made to cover up unlawful and abusive arrests or some other political scandal or criminal involvement.

In practice, the AG's Office should refrain from relying on plea bargaining as a solution to other failings in our criminal legal system. As a former public prosecutor at the AG's office I know how delicate, controversial and sometimes even dangerous a plea bargaining process can be. I did negotiate more than one. Most of them were quite satisfactory, though not easy going, but, I have to admit, there was the occasional one that today, with hindsight, I might have negotiated better. That apart, I believe that transparency should be the order of the day and that the prosecuting lawyer should always have a legal and reasoned basis for dropping charges that, in all probability, do not stand any chance of obtaining a conviction. It is also pertinent to point out that it used to be, and I suspect there still is the unorthodox practice of the police officers who initially issued charges to accuse the accused with all possible, however remote and far-reaching, offences listed in our criminal laws.

Some plea bargains require defendants to do more than simply plead guilty. For example, prosecutors often offer favourable plea bargains to defendants who agree to testify for the State in cases against other defendants, as was the case with Darren Debono. With hindsight, the AG's Office should, in that case, have first ensured that Debono's testimony was duly tendered and confirmed on oath prior to the sentencing stage and not risked having him renege on his obligation as in fact happened. This is where plea bargaining can become controversial especially when commentators criticize it on the grounds that such practice may allow defendants to shirk responsibility for the crimes they have committed.  As it is, our courts treat plea bargains as contracts between prosecutors and defendants. A defendant breaking a plea bargain is akin to a breach of contract, which will result in the prosecutor no longer being bound by his or her obligation in the plea deal. If a prosecutor reneges on plea bargains, defendants may seek relief from the judge. The judge might let the defendant withdraw the guilty pleas, may force the prosecutor to follow the plea bargain, or may apply some other remedy. Judges are not directly involved in plea bargain negotiations but retain final authority over sentencing decisions, and are not bound by prosecutors' recommendations, even if the recommendations are part of plea bargains.

One feature of plea bargaining that hardly received any attention prior to the Topo controversy is the lack of transparency. Unlike the trials it replaces, plea bargaining occurs privately and off the record. Victims and the public are excluded from the negotiations, and even the defendant is typically absent. Plea offers are often not documented, and the final plea agreements are not always in writing or placed on record with the court. Plea hearings-at which a judge reviews the validity of a defendant's guilty plea-are public, but they tend to be brisk, rote affairs that often fail to reveal all of the concessions exchanged between the parties. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing. The opacity of plea bargaining stands in marked contrast to the constitutional commitment to public criminal proceedings. To be sure, there are valid reasons for protecting aspects of plea negotiations from public scrutiny. Confidentiality fosters candour in negotiations and encourages prosecutors to use their discretion to provide leniency in appropriate cases. It also helps shield cooperating defendants from retaliation. Also, the informality and lack of documentation of plea offers may help conserve resources and expedite case processing. Yet the secrecy of the process also raises a number of concerns. The lack of transparency frustrates the ability of victims to provide meaningful input, and it leaves judges with few guideposts by which to evaluate the fairness of plea bargains and the validity of guilty pleas. More broadly, it limits the public's understanding of plea bargaining and inhibits informed public debate about criminal justice reform.

The practise of plea bargaining is neither as bad as its critics fear nor as good as its exponents hope. The decisions of prosecutors and defence counsel regarding whether to plea bargain a case and on what terms is not as haphazard as it may appear. Prosecutors systematically take into account the character of the criminal and the gravity of the crime as well as the evidentiary strength of the case. One major reform of plea bargaining is to increase the judge's responsibility for assuring the fairness of the process. Before accepting guilty pleas judges should inquire whether the pleas are intelligent, voluntary, and accurate. Such a reform would result in a much lengthier and more careful plea acceptance process than currently practised. This increase in judicial supervision of the guilty plea process would undoubtedly mark a salutary development. We must ensure that plea bargaining not only serves the convenience of the judge and the lawyers but the ends of justice too. Our legislators can and should do more to promote the documentation and transparency of plea bargaining.

 

Dr Mark Said is an advocate