INTRODUCTION

Plea Bargaining is an umbrella term covering a wide range of practices.[1]It can broadly be categorized into Sentence Bargaining where the prosecution and the accused enter into an agreement for the accused person to plead guilty to the charges against him in exchange for a lenient sentence. There is also Charge Bargaining where the accused person agrees with the Prosecution to plead guilty to a lesser charge other than that with which he was originally charged. This also invariably leads to a less severe sentence.

In Ghana under the Criminal and other Offences Procedure Amendment Act 2022, Act 1079, Plea Bargaining can also include an agreement between the accused person and the prosecution to withdraw a charge against the accused person.[2] Thus it is immediately seen that the ultimate end of any arrangement which can conveniently be put under the umbrella of Plea Bargaining is to achieve a less severe sentence within the law that prescribes sentence for the corresponding offence.

THE ORIGINS OF PLEA BARGAINING

The origin of Plea Bargaining is traced to the American judicial system. Plea Bargaining developed over time in various forms across the US as a result of the pressure resulting from the exponential number of cases being recorded in the courts. but it was not until the late 1960’s that bargaining in this sense begun to be considered as appropriate.[3] By the mid 19th to the early 20th century plea bargaining became de facto the preferred procedure for handling an ever increasing number of criminal cases. The US Supreme Court officially recognized plea bargaining as a formal procedure for the resolution of criminal cases in 1970 when it declared plea bargaining constitutional in the Brady v US case.[4]

Today, over ninety five percent of convictions at the state and federal levels in the United States of America are the product of guilty pleas.[5]

In the UK plea bargaining does not formally exist although its informal use is widespread. There is one exception to this state of affairs, since 2009 the Serious Fraud Office has had the power to enter into plea bargains in cases of serious and complex fraud. The Attorney General in this regard issued a guideline to guide prosecutors.[6]

THE DEVELOPMENT OF PLEA BARGAINING IN GHANA.

Presently the Criminal and other Offences Procedure Amendment Act 2022, Act 1079 which came into force on 22nd July 2022 provides a uniform framework for Plea Bargaining in Ghana. 

The concept of Plea Bargaining in Ghana however predates Act 1079. 

Reference is made to section 239 (2) of the Criminal and Other Offences Act,1960 Act 30 as amended which allows an accused person arraigned on Indictment to plead guilty to another offence not charged in the indictment if he can lawfully be convicted of that other offence. The seminal case of R v Ohene Djan and another amply demonstrates this provision in action.[7]

It must be noted that this provision only relates to Trials on Indictment.

Reference is also made to section 35 of the Courts Act 1993, Act 459 which provides for an offer of compensation or restitution by an accused person in lieu of sentence.

Under the provision, where an accused person has been charged with an offence before the High Court the commission of which has caused economic loss or harm or damage to the State or any State agency, the accused may inform the prosecutor whether the accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.[8]After an offer is made to the prosecution and the prosecution agrees to same, it is announced to the court for its consideration. 

Where the Court considers the offer to be satisfactory, the Court shall accept a plea of guilty from the accused and convict the accused on his own plea, and in lieu of passing sentence on the accused, make an order for the accused to pay compensation or make restitution and reparation. The Court may make orders subject to such conditions as it deems fit.

This form of Plea Bargaining was exemplified in the recent High Court case of The Rep v Ato Essien Suit No CR/0014/2020 where the Court imposed custodial sentence on the accused person after he failed to make full reparation of the amount of money due to the state.

PLEA BARGAINING UNDER ACT 30.

As has been noted earlier, even though the concept of Plea Bargaining is not entirely novel to Ghana’s Criminal Jurisprudence it cannot be denied that the amending legislation has brought some uniformity to the structure of the Plea Bargaining process.

Firstly it should be noted that under the new law ,felonies such as treason, high crime, rape, defilement, genocide, robbery, murder amongst others are not subject to Plea Bargaining.[9]

In respect of offences punishable by death such as treason, an accused person cannot enter into a plea agreement to plead guilty to such an offence but may agree to plead guilty to a lesser offence.[10]

Where either party being prosecution or the accused person by his Counsel  initiates Plea Negotiations either party shall give written notice of such Negotiation to the Court whereupon the Court shall adjourn proceedings to give the parties time to negotiate a plea agreement.[11] Notwithstanding whether it is the prosecution or the accused person by his Counsel who initiates the Plea Negotiations the Prosecutor is obliged to inform the accused person of  all his rights pertaining to fair trial as enshrined in Article 19 of the 1992 Constitution.[12] The Prosecutor is also required to serve on the accused person all documents and materials necessary for the accused person to prepare a defense or negotiate fairly.[13] These include the charge Sheet and Facts of the case, all written documents and electronic materials in the possession of the Prosecution or obtained by the Investigator in respect of the case whether exculpatory or otherwise.[14]

The initiation of Plea Bargaining Negotiations does not however operate as an automatic stay of the criminal proceedings. Where a Plea Agreement is not reached within thirty days of commencement of the Plea Negotiations the Court may proceed with the trial but this does not bar the parties from further negotiations in respect of the Plea Agreement.[15]

The Plea Negotiations must involve consultations with interested parties such as Complainants or victims who must be afforded an opportunity to make representations regarding the content of the Plea Agreement.[16] A victim or Complainant who objects to the terms of a Plea Agreement may file a statement in Court to be served on the accused person detailing the grounds for his objection for the consideration of the Court.[17]

Before concluding Plea Negotiations with an accused person a prosecutor must take into consideration the nature and circumstances under which the offence was committed, the personal circumstances of the accused person if any, the views of the Investigator and the interest of justice.[18]

After Plea Negotiations have concluded and a Plea Agreement has been reached, the prosecutor is required to within seven days file a copy of the Plea Agreement in Court and serve same on the accused person and the victim where applicable.[19] 

In considering the Plea Agreement before it the Court must satisfy itself that the accused person entered into the agreement voluntarily and was informed of all his rights pertaining to fair trial under the 1992 Constitution.[20]The Court may also at this stage take into consideration any views or objections of a Complainant or victim in the case.

The Court must only accept a Plea Agreement when it has satisfied itself that the accused person is of sound mind, that the accused person entered into and signed the agreement voluntarily and further that there is a factual basis for the Plea Agreement.[21]

Where the Court accepts a Plea Agreement, the Court shall call upon the accused person to plead to a charge in the agreement. Where the accused person pleads guilty in line with the agreement the Court will convict him on his own plea and where the accused pleads not guilty the Court will treat the plea as a withdrawal from the Plea Agreement and make an order for the trial of the accused person on the original charge.[22]A conviction and sentence of a Court in accordance with a Plea Agreement is final and an appeal shall not lie against the judgement of the Court except on the grounds that the agreement is tainted with vitiating factors such as duress, fraud amongst others.[23] 

Where a sentence has been recommended in the Plea Agreement, and the Court is satisfied that the sentence is appropriate the Court shall sentence the accused person in accordance with the Plea Agreement or otherwise advise the parties to renegotiate the Plea Agreement.[24]

On the other hand the Court  may reject a Plea Agreement and give reasons for its rejection following which the case will run its normal course. Such decision is not subject to appeal.[25]The parties are however not barred from re entering into a new Plea Agreement.

With regards to Juveniles, the provisions of Act 1079 apply to them with the overarching principle of the best interest of the Juvenile.[26]

THE IMPLICATIONS OF PLEA BARGAINING ON GHANA’S CRIMINAL JURISPRUDENCE.

Within the context of Ghana’s criminal Jurisprudence Plea Bargaining can be seen as a progressive tool. Statistics from the Ghana Prison Service show  that Ghana’s Prisons have a 41.22% overcrowding rate.[27]

Since Plea Bargaining offers the advantage of an accused person negotiating with the prosecution to obtain a much more lenient sentence this can be helpful in reducing congestion in the prisons.

An added advantage for the Prosecution is that plea bargaining offers substantial savings in cost and time to fully prosecute cases since it is less expensive and time consuming than a full scale trial.

On the other hand  critics of Plea Bargaining say that it may leave room for weak cases to go unchecked as the prosecution are not allowed to fully discharge the burden of proof in a courtroom.[28]The response to this criticism however is that under Ghana’s Plea Bargaining regime the Judge still remains the final arbiter as he may accept or reject the Plea Agreement.

CONCLUSION

Overall Plea Bargaining as a legal concept offers advantages to both an accused person and the prosecution. It is particularly helpful for developing countries such as Ghana who have high prison overcrowding rates.

The coming into force of Act 1079 provides a robust legal framework for Plea Bargaining which allows both the accused person and Prosecution to maximise the benefits of the concept of Plea Bargaining.

*The Author is a State Attorney at the Office of Attorney General and Ministry of Justice.

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[1] The Inefficiency of Plea Bargaining , Jay Gormley, Onlinelibrary.wiley.com

[2] See section 162A of the Criminal and Other Offences(Procedure)(Amendment) Act 2022 Act 1079

[3] Jon’a F Meyer, Plea Bargaining  www.britannica.com

[4] Brady v US,397 U.S 742 (1970)

[5] See Federal Justice Statistics 2012-Statistical tables

[6] www.attorneygeneral.gov.uk/Publications/Pages/AttorneyGeneralsGuidelines.aspx

[7] See Change of Plea on Arraignment for Indictable Offence: The Republic v Ohene Djan and another 1975 Vol II No 3 RGL 183-199

[8] See section 35 of the Courts Act 1993, Act 459

[9] See Section 162R of Act 1079.

[10] See Section 162A (3) of Act 1079

[11] See Section 162C (4) of Act 1079

[12] See Section 162C (2) of Act 1079

[13] See Section 162D (1) of Act 1079

[14] See Section 162D(2) of Act 1079

[15] See Section 162C(6) of Act 1079

[16] See Section 162(E)1a of Act 1079.

[17] See Section 162E(2) of Act 1079.

[18] See Section 162E(C) of Act 1079

[19] See Section 162G(1) of Act 1079

[20] See Section 162(G)3 of Act 1079

[21] See Section 162H of Act 1079

[22] See Section 162H of Act 1079

[23] See Section 162L of Act 1079

[24] See Section 162I of Act 1079

[25] See Section 162J of Act 1079

[26] See Section 162R (2) of Act 1079

[27] www.ghanaprisons.gov.gh accessed 26 August 2024

[28] Plea Bargaining: A Comparative Analysis Jacqueline Hodgson, International Encyclopedia of the Social and Behavioral Sciences.