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Some time back, your regular contributor Claire Bonello took the liberty to comment on a Private Members Bill presented lately in Parliament by myself and my colleague Anglu Farrugia. The Bill in question deals with the concept of plea bargaining in criminal cases. Dr Bonello had strong words against what was being proposed and took the liberty to criticise the idea as a whole.
It is therefore opportune for me to clarify the scope behind the law I am proposing. It must be pointed out that it was incorrectly stated that the Opposition is proposing the introduction of Plea Bargaining before the Maltese Courts. This statement is erroneous. It has been the practice for many years now for lawyers and prosecuting officers to submit to the Court proposals as to what a particular judgement should be and this in an informal manner. In such a practice an informal agreement is agreed to a priori and both the defence and the prosecution are left with a level of certainty as to what the outcome of a particular case would be in the eventuality of the admission of the accused. This notwithstanding however, it has long been felt that this state of affairs should be regulated by law in order to make the system more transparent and to give it a legal framework as is the case elsewhere.
A few years back, in fact Parliament did legislate and pass a relative law. From the outset however it was felt that the law that was being proposed would prove to be insufficient and needed to be rethought. In examining the minutes of the law, as it was being piloted during Committee stage, the reservations made by myself and Anglu Farrugia will become apparent. This notwithstanding, however, no further corrections to that being proposed were admitted. Unfortunately, the law as it stands today, only covers instances before the Criminal Court and before the Magistrates Court, as a Court of Criminal Enquiry during the arraignment stage. It must be emphasised that the vast majority of Criminal cases today are not dealt with before the Criminal Court but before the Court of Magistrates as a Court of Criminal Judicature. Thus even considering merely this state of affairs it will become apparent that our law is only half-baked.
Furthermore, it must be pointed out that the law prescribes a certain procedure to be adhered to in all cases of Plea Bargaining. The defence Attorney and the Attorney General must of necessity draft a document stipulating what they have agreed to and present same to the Court which will then have the prerogative either to concede to that arrangement or reject it. This procedure however is proving totally impractical for the defence to attempt to arrive at a settlement in the arraignment stage, since as a rule the defence is only informed that a particular individual is to be accused before the Courts a few hours earlier. This clearly leaves absolutely no time for the defendant to enter into negotiations with the Attorney’s General office.
On account of all this, therefore, it is only in a fraction of cases where Plea Bargaining can be introduced within the legal framework as stipulated by the law. Thus what myself and my colleague are proposing is not the introduction of this practice before our Courts, but to further regularize it. Our idea is to remove the inadequacies which still persist in our law and avert surprises and anomalies. It must be pointed out that lately even our Criminal Court of Appeal had occasion to emphasize these inadequacies and obiter even made recommendations as to what procedure our Courts should follow in cases of Plea Bargaining thereby indirectly sanctioning the informal practice.
No judicial system is perfect and perhaps Claire Bonello was right in stating that in an ideal world criminal justice should be dispensed with in a different manner. The truth however is that over the years, Criminal Courts everywhere have become inundated with a large number of cases and it has not remained practical to refer to trial each and every case when an alternative mode of deciding the issue exists, and today Plea Bargaining is the accepted alternative. Contrary to what was suggested by your correspondent and contrary to Parliamentary practice I recommend the said Private Members Bill will indeed eventually be brought up for discussion and will eventually lead to the further enhancement of our Penal Code.
Dr Jose A Herrera MP
Malta Labour Party
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