Scheme for Concessional Rate of Sentence for Offenders Pleading Guilty without Plea-bargaining

- Mr. Jibrul Hasan.

ges

Published On - May 16, 2017 [Vol. 6, Jan - Jun, 2017]

Guilty-Plea:-

In legal terms, a formal statement by the accused stating guilt or innocence in response to a criminal charge is known as ‘plea’ under common law[i] system. In many jurisdictions of the world, the accused may plead guilty at any stage of a criminal case and thereby is subject to punishment accordingly. On the other hand, in some jurisdictions there is a stage known as charge-framing stage in criminal cases. At that stage, the accused is formally asked whether he pleads guilty, or not. If he pleads guilty, the prosecution is relieved from its general duty to prove the prosecution case against the accused. Under common law, a plea of guilty by the accused waives trial of the charged offences and the accused may be sentenced immediately. Though there is no legal bar to punish an offender on the basis of guilty-plea, it is desirable to go to full trial and call for the prosecution evidences in serious kind of offences. The concept of guilty-plea is one of the major differences between criminal procedure under the common law and the civil law[ii] system. In civil law jurisdictions, there is generally no concept of a guilty-plea, and a confession by the accused is treated like any other piece of evidence which does not relieve the prosecution from its duty to present evidences before the trial court. While Common law treats guilty-plea as a waiver of trial, Civil law views it as a mere evidence of the most cogent kind.

Concessional Rate of Sentence for Guilty-Plea:-

The concept of guilty-plea develops a system recognized under American law as plea-bargaining through which the accused makes agreement with the prosecution to plead guilty to a lesser charge in exchange for a more lenient sentence or to drop other charges. Plea-bargaining has been expressly authorized in statutes and court rules of US, where plea-agreements resolve roughly nine out of every ten criminal cases. The prosecutors have power to level any charge if they possess enough facts to go with.

By contrast of plea-bargaining, a scheme known as ‘concessional rate of punishment’ has been prevalent in UK where there cannot be any bargaining with prosecutor regarding the amount of punishment. Unlike the US system of plea-bargaining, in UK the offender may plead guilty at any time of the criminal proceedings having no plea-agreement and expect some discount in sentence prescribed in the penal law.

In 2006, India has introduced a scheme for concessional rate of sentence for offenders who plead guilty on their willingness. The scheme has the following characteristics: – there is no scope for plea-bargaining between prosecution and defence, the accused can take initiative for concessional treatment leaving no room from prosecution inducement, there is no scope for prior assurance to the accused regarding his reduction of sentence, and this opportunity is limited to cases in which the maximum punishment is imprisonment for 7 years. However, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below 14 are excluded from the scheme.

Concessional Rate of Sentence for Guilty-Plea in UK:-  

A reduction in sentence is appropriate because a guilty plea avoids the need for a trial, shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence.[iii] In UK, the offender may plead guilty at any time of the proceedings and expect some discount in sentence. This expectation of claiming some concession in punishment has legal basis too. A guilty-plea incurs proper sentence depending on what stage and in which circumstances the offender denotes his intention to plead guilty. It is on the court’s consideration to give a lower punishment from the prescribed one. If the offence attracts a mandatory minimum sentence under section 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the discount for guilty plea cannot exceed 20 percent (one-fifth) of the prescribed minimum sentence. This rule is also applicable for fixing minimum term for a guilty plea of murder with the exception that there will be no reduction where the Court determines a whole life minimum term. For all other offences, the sentences may be reduced by from one-tenth to one-third. The level of the reduction will be gauged on a sliding scale ranging from a recommended one third (where guilty plea was entered at the first reasonable opportunity in relation to the offence for which sentence is being imposed), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the ‘door of the court’ or after the trial has begun).[iv] If the prosecution case is overwhelming, the Court may not be willing to give full reduction even if the guilty plea was given at the first reasonable opportunity. In that case, a recommended reduction of 20% (one-fifth instead of one-third) is likely to be appropriate and in departing from the guidelines the Court must state reasons for doing so. The Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made.[v] There is also scope for the Attorney General to refer to the Court of Appeal a sentence passed in the Crown Court which appears to be so lenient that it damages public confidence.

Indian Law Commission Proposed Concessional Rate of Sentence for Guilty-Plea:-

To reduce the delays of criminal trials as well as to mitigate the sufferings of under-trial prisoners, the Law Commission of India perceived some remedial legislative measures necessary to be adopted. In order to formulate proposals to this end, the Commission invested considerable times and deliberations. In its 142nd Report (1991), the Commission recommended to introduce the concept of concessional treatment for those who choose to plead guilty without any bargaining with prosecution. Before formulating its proposal, the Commission called for information regarding the periods for which criminal trials were pending in Sessions Courts and Magistrates Courts, and also the number of cases disposed of resulting in conviction and in acquittal. Criminal trials were found to be pending for 9 years onwards, while the acquittals constituted over 90% and convictions were a paltry 10% and less. Over the long period of pending trials, situations completely change; some witnesses vanish and some witnesses on whose testimony the prosecution sought to rely make total overturn – these were the uniform replies from the judges the Commission examined. Judges were helpless and cases were resulted in acquittal for want of satisfactory evidences. The Judges stated that if the period of waiting could be reduced, there might be a greater possibility of the evidence forthcoming more effectively. The Commission made a survey. Andhra Pradesh, Karnataka, Maharastra and Uttar Pradesh, and Union Territory of Delhi were selected by way of sample survey for the purpose of eliciting opinion not only on the basis question whether the concept of “plea-bargaining” should be introduced in criminal jurisprudence, but also on the various allied matters that arise for consideration. A brief note along with a questionnaire was sent to all the High Courts with a request that it might be circulated among all the Hon’ble Judges of the High Court and the Sessions Judges and Magistrates. Basically two questions arose for consideration- (i) whether the scheme of “plea-bargaining deserves to be introduced in the Indian Criminal Jurisprudence?, and (ii) if It deserves, then whether the scheme should be applied to all categories of offences?. The views were favourably disposed towards the concept being introduced for specified serious offences.

It was alleged that the scheme for concessional rate of sentence for guilty-plea would ignore the mandate of law, and therefore it is against the criminal jurisprudence and constitutional spirit. The Commission had carefully assessed the weight and importance of the matter in response to the observations of Supreme Court in Murlidhar Meghraj Loya vs State of Maharastra AIR 1976 SC 1929 and Kasambhai Abdulrehmanbhai Sheik vs State of Gujrat AIR 1980 SC 854. According to the Commission, the observations of the Supreme Court that a conviction based on the plea of guilty entered by the appellant as a result of plea-bargaining cannot be sustained should be understood in the context of the plea-bargaining entered in an informal way without legal sanction. The Commission opined that if a law provides for entering a voluntary plea of guilty and a concessional treatment being accorded in the light of the statutory authority of law in accordance with the prescribed guidelines by a judicial authority, it would not be possible to say that the conviction based on the plea of guilty is erroneous.[vi] As to the Supreme Court’ s next objection that the procedure by which a person is convicted on a plea-bargaining made as a result of inducement would be violative of article 21 of the Constitution[vii], the Commission was of the opinion that the observations of the Supreme Court regarding  possible violation of article 21 should be confined to the situation where without legal sanction and appropriate procedure a court takes note of a voluntary plea of guilty and convicts the accused ignoring the mandate of law. The Commission also thought that those observations would be inapplicable in a situation where a law governing concessional treatment without higgle-haggling or bargaining (not plea-bargaining of the American model) was enacted as it was being proposed. The Commission was confident that the constitutional validity of a law settling out such a scheme for concessional treatment would not be violative of the provisions contained in article 21 of the Constitution. The Commission was of the opinion that the observations in the aforesaid two Supreme Court judgments do not militate against the enactment of a law carefully settling out the scheme broadly on the aforesaid pattern laying down appropriate guidelines and procedure governing the matter.

The scheme for ‘concessional rate of punishment’ as put forward by the 142nd Report was basically different from the ‘plea-bargaining’ scheme in five important points, namely:- (1) there will be no contact between the public prosecutor and the accused for the purpose of invoking the scheme, (2) the decision to accord concessional treatment will rest solely with a judicial officer functioning as a Plea-Judge in respect of offences punishable with imprisonment for 7 years or less, (3) there will be no bargaining with the judicial officers and application once made cannot be withdrawn, (4) there will be no risk of underhanded dealings or for coercion or improper inducement by the prosecution, and (5) the aggrieved party and the public prosecutor will have a right to be heard and place their points of view. Finally the Commission was of the considered opinion that a scheme, to be known as “scheme for granting prayer for concessional treatment made by accused pleading guilty voluntarily” required to be introduced in the Indian Criminal justice system by way of enacting a legislation. The Commission, in its 142nd Report of 1991, therefore, recommended the scheme for concessional treatment to offenders willing to plead guilty on their own volition without any plea-bargaining be statutorily introduced by adding a Chapter in the Code of Criminal Procedure of 1973. The scheme put forwarded for consideration would be inapplicable to socio-economic offences of a non-technical nature such as offences against women and children – including offences of rape, bride burning, dowry deaths, demand and acceptance of dowry etc. It was also suggested to make the scheme restricted to first offenders only. Later on, the 154th Report which recommended a new chapter XXIA to be incorporated in the Code was indeed a referral to the earlier 142nd Report setting out in extension the rationale behind the said concept and the manner in which it should be given a statutory shape.

Concessional Rate of Sentence for Guilty-Plea in India:-

By the Criminal Law (Amendment) Act 2005, a new Chapter XXIA has been  introduced in the Code of Criminal Procedure 1973 having effectiveness from July 5, 2006. Newly enacted section 265A allows ‘plea-bargaining’ (actually now scope of bargaining) only for cases in which the maximum punishment is imprisonment for 7 years; however, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below 14 are excluded. Only a first time offender may apply to the Court after understanding the nature and extent of the punishment provided in law for the offence he charged. Then the Court is to issue notice to the public prosecutor and the complainant to appear and take part in the hearing. If the Court finds the application a voluntary one, then time is provided to the public prosecutor, complainant and the accused for mutually satisfactory disposition where the accused may give compensation and other expenses of the case to the victim. If there has been minimum punishment in law, the Court may sentence the accused to half of such minimum sentence. Where there is no minimum sentence prescribed in law, Court may sentence the accused to one-fourth of the punishment provided or extendable for such offence committed by him. Under the existing provisions, there is no scope for the accused to enter into contract with the prosecution for lenient punishment. The prosecution and the accused-side have a chance of sentence hearing following the guilty-plea. Though the term ‘plea-bargaining’ has been used in the above legislation, actually it is not plea-bargaining as prevalent in USA, but the concessional rate of punishment for offenders willing to plead guilty on their own volition without any plea-bargaining.

Guilty-Plea Provisions in Bangladesh and Recommendations:-

Criminal trials begin with the framing of charge against the accused by the Magistrate or the Judge. The procedures of criminal trials are described in the Code of Criminal Procedure 1898 (CrPC). The charge framed against the accused is read over and explained to him in the open Court. Thereby, the accused is asked whether he admits that he has committed the offence with which he is charged. If the accused admits that he has committed the offence with which he is charged, his admission is to record and, if he shows no sufficient cause why he should not be convicted, the Sessions Court or the Magistrate may convict him accordingly. However, it is not mandatory for the Magistrate or the Sessions Court to punish the accused thereon. If the accused pleads guilty and is convicted by a Court of Sessions or Magistrate, there shall be no appeal except as to the extent or legality of the sentence. Under the existing legal provisions, the accused cannot claim reduction in sentence for his pleading guilty, though informally the Courts consider the gravity of the offence and other relevant factors. In our criminal trials, there is no stage for sentencing hearing or opportunity of the accused to argue for his lenient punishment.

At the charge-framing stage, usually the accused pleads ‘not guilty’ and wants to face trial. Even when the accused is sure that the case will definitely be proved by the prosecution witnesses and evidences, he is very reluctant to admit guilt. It may be in the mere hope that the prosecution will find little evidence of the crime over the long period of formal trial and he will overturn the witnesses’ upright position. Thus, the guilty-plea is very rare in criminal trials of Bangladesh except in some petty offences where there are provisions for fine as an alternative mode of punishment. In those petty cases, the accused pleads guilty on the expectation that the Court would take it leniently and he would only be fined for committing the offence.

The system of ‘plea-bargaining’ as prevalent in US will not be appropriate to many jurisdictions of the world for many cogent reasons. Usually, guilty-plea counterclaims a concession in sentence, but this concession should not be retribution of any agreement, as many jurists think. The amount of reduction is to depend on the stage the accused pleads guilty, the offence level as well as the consequence of the offence committed.

Since guilty-plea by the accused eliminates the practical burdens of full trial, a reduction in sentence is desirable and there should be statutory recognition for lesser sentence on guilty-plea for petty offences. This tool of ‘concessional rate of sentence’ for guilty-plea for petty offences may reduce the number of criminal cases pending in trial Courts. To this end, a scheme for concessional rate of sentence for guilty-plea (not plea-bargaining) should be introduced in our criminal justice system by inserting relevant provisions for that purpose in CrPC. Firstly, it may be introduced for less serious offences the punishment of which do not exceed 5 years imprisonment. After introducing this scheme, it would necessitate a comprehensive research to be adopted by the appropriate authority on the issue whether the scheme would be appropriate to extend for higher offences.

***

[i] Common law legal system is characterized by case law, which is law developed by judges through decisions of courts and similar tribunals. The United States, United Canada, England, India, Bangladesh, and Australia are generally considered common law countries. Because they were all once subjects or colonies of Great Britain, and they have often retained the tradition of common law. The state of Louisiana in the United States uses bi-juridicial civil law because it was once a colony of France.

[ii] Civil law legal system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law.  Civil law countries include all of South America (except Guyana), almost all of Europe (including Germany, France, and Spain), China, and Japan.

[iii] Sentencing Guidelines Council, Reduction in Sentence for Guilty Plea (2004), Revised 2007; para 2.2

[iv] ibid para 4.2

[v] Powers of Criminal Courts (Sentencing) Act 2000, S.155

[vi] 142nd  Indian Law Commission Report (1991), Concessional Treatment for Offenders who on their Own Initiative Choose to Plead Guilty without any Bargaining, page 17

[vii] The Constitution of India1949, Article 21 reads as “No person shall be deprived of his life or personal liberty except according to a procedure established by law”.

About The Writer

Article Author Image

Mr. Jibrul Hasan.

Judicial Magistrate, Manikganj .

E-mail: biplob.nst@gmail.com

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