Plea bargaining, Singapore-style

Viewers of American legal dramas would be familiar with scenes of defence lawyers and prosecutors bargaining over whether the accused should take a guilty plea in return for a lighter sentence.

This practice, which is called plea bargaining, came into the spotlight recently after a high-profile court case here involving American mixed martial arts instructor Joshua Robinson, who was convicted of having sex with minors, among other offences.

Amid a public outcry that his four-year sentence was too lenient, the Attorney-General's Chambers (AGC) said it had made known to the accused's lawyer at a pre-trial conference that the prosecution would be seeking a total sentence of four to five years' jail.

While the AGC did not explicitly say it had reached an agreement with Robinson's lawyer, its statement said that, in arriving at this sentencing position, it took into account that by securing a guilty plea, Robinson's three young victims would be spared the trauma of testifying in a trial.

How does a plea bargain work? How is it practised in Singapore and how does it differ from that in other legal jurisdictions?

What are the pros and cons of such a practice?

In its current practice, plea bargaining keeps the wheels of justice here moving along, but taking the next step to lay down a clear set of rules - to ensure transparency, clarity and consistent practices - will help justice be seen to be done as well.

UNFORMALISED PRACTICE

Plea bargaining, or plea negotiation, comes in many forms.

In essence, it is an agreement between the prosecution and the defence that, if the accused pleads guilty, he will receive some sort of concession, such as a lower sentence.

It can be an agreement about the type of charges against the accused, the facts that will be presented to the court or the sentence to be imposed by the court.

In the United States, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court.

Plea agreements are set out in writing, detailing the terms and conditions of the deal.

Unlike in the US, the practice is not formalised in Singapore's criminal justice system.

But it is nevertheless a well-established and common practice for the prosecution and defence to negotiate on many levels, even if many lawyers here are reluctant to call it plea bargaining, for various reasons.

Currently, negotiations here are typically done under the Criminal Case Management System, started in 2003 for the defence and prosecution to meet and discuss their cases in private.

Another scheme, known as Criminal Case Resolution (CCR), set up in 2011, allows prosecutors and defence counsel to explore the early resolution of the case, facilitated by a district judge as a neutral party.

In 2013, more than 80 per cent of the cases referred for CCR were successfully resolved.

If the case is not resolved, another judge will hear the actual case so that the matter is not prejudged.

These two negotiation processes are open only to those represented by lawyers. Those without lawyers can apply, if they are eligible under the Primary Justice Project, for a lawyer to represent them at these two processes.

In Singapore's system, the most common form of plea bargaining is an offer made by the prosecution to reduce the charges or proceed with fewer charges, with the rest taken into consideration, if the accused pleads guilty.

According to figures from the AGC, 810 of the 851 convictions in January and February saw accused persons pleading guilty after some sort of talks between the prosecution and defence.

CONTROVERSIAL PRACTICE

The practice is not without controversy.

Proponents say that instead of having to go through lengthy trials, the process of negotiating and coming to an agreement saves time and costs. It also gives both prosecution and defence some certainty over the outcome, even though the ultimate decision lies in the hands of a third party, the judge.

Each side evaluates the strength of its case before deciding if they should come to an agreement.

For instance, if an accused denies the charge but his case is not strong, he will be more prepared to negotiate, as sentencing discounts are usually given for pleas of guilt at the earliest opportunity. And if the prosecutor's case is not watertight, a guilty plea ensures at least some punishment. Half a loaf is better than none, so to speak.

But critics say plea bargaining can lead to "over-charging", with the prosecution bringing a more serious charge in anticipation of it being "bargained down".

Others view plea bargains as compromising on justice.

This was addressed by Deputy Attorney-General Tan Siong Thye at a law conference last year, when he stressed that the prosecution presses charges based on the evidence and seeks sentences based on the facts and sentencing precedents. "We never prefer a charge which is not made out, to induce a guilty plea to a reduced charge," he said. The prosecution also does not intentionally ask for excessive sentences or seek inadequate sentences as part of plea bargains, he added.

REVIEW COMPLETED

In 2010, then Chief Justice Chan Sek Keong expressed concerns that more than 40 per cent of criminal trials "cracked" - either the accused pleads guilty or the cases are withdrawn - resulting in a waste of trial dates. One way to cut down the number of cracked trials was to introduce plea bargaining, he said, as he introduced a pilot scheme of what is now the CCR programme.

A year later, he invited the AG, then Mr Sundaresh Menon, to look into plea bargaining, which he said he would endorse, provided there are enough safeguards to protect the integrity of the criminal justice system.

The next AG, Mr Steven Chong, said in 2013 that a proposed framework for plea bargaining, devised after meetings with stakeholders and study trips overseas, was with the Law Ministry for consideration.

In 2014, Law Minister K. Shanmugam said his ministry and the AGC were studying a formalised plea bargaining framework.

Yesterday, the Law Ministry said that its review, carried out together with the relevant agencies, concluded that no major changes were desirable or necessary to the system in place.

"Under the present system, discussions between the prosecution and defence on how to resolve a case are facilitated by face-to-face meetings between parties under the Criminal Case Management System, and by Criminal Case Resolution hearings before a judge, who is able to give sentencing indications," said a Law Ministry spokesman.

That plea negotiation schemes are in place in Singapore suggests they are viewed positively by the courts, prosecution and accused.

However, some lawyers are in favour of an "institutionalised" plea bargaining process which is seen as a part of the open court process, like in the US.

Lawyer Amolat Singh said, under the current process here, much depends on the prosecutor. "Some are more forthcoming, some play their cards closer to their chest," he noted.

A criminal lawyer with more than 20 years' experience, who did not want to be named, said some judges do not like to be told that the prosecution and defence have come to an agreement on sentence.

In its current practice, plea bargaining keeps the wheels of justice here moving along, but taking the next step to lay down a clear set of rules - to ensure transparency, clarity and consistent practices - will help justice be seen to be done as well.

A version of this article appeared in the print edition of The Straits Times on March 15, 2017, with the headline 'Plea bargaining, Singapore-style'. Print Edition | Subscribe