Chapter 10:09 - Criminal Procedure (Plea Bargaining and Plea Agreement)

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L.R.O. 1/2012
LAWS OF GUYANA
CRIMINAL PROCEDURE (PLEA BARGAINING AND PLEA
AGREEMENT) ACT
CHAPTER 10:09
Act
18 of 2008
Current Authorised Pages
Pages
(inclusive)
Authorised
by L.R.O.
1 – 19 ... 1/2012
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Note
on
Subsidiary Legislation
This Chapter contains no subsidiary legislation.
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CHAPTER 10:09
CRIMINAL PROCEDURE (PLEA BARGAINING AND PLEA
ARRANGEMENT OF SECTIONS
SECTION
1. Short title.
2. Interpretation.
3. Application of Act.
PART II
PLEA BARGAINING
4. Plea bargaining.
5. Improper inducement.
6. Representation by attorney-at-law.
7. Prohibition against plea bargaining.
8. Victim to be consulted.
PART III
PLEA AGREEMENTS
9. Plea agreement.
10. Hearing in Chambers.
PART IV
MISCELLANEOUS
11. Views of victim in open court.
12. Offer of accused to plead guilty.
13. Withdrawal from plea agreement by accused person or prosecutor
before sentence.
14. Appeal against sentence.
15. Withdrawal from plea agreement by prosecution after conviction.
16. Inadmissible evidence.
17. Plea agreement not binding on the Court.
18. Legal aid to accused persons in certain circumstances.
19. Power to amend Schedule.
AGREEMENT) ACT
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SECTION
20. Power to make regulations.
SCHEDULE
__________________________
CHAPTER 10:09
CRIMINAL PROCEDURE (PLEA BARGAINING AND
8 of 2008 An Act to provide for the establishment of a system of plea
bargaining and plea agreements in criminal procedure
and for matters connected therewith.
[2 ND MAY, 2009]
Short title.

Interpretation.
PART I
PRELIMINARY
1. This Act may be cited as the Criminal Procedure
(Plea Bargaining and Plea Agreement) Act.
2. In this Act—
“Court” means the High Court or the Magistrate’s Court;
”improper inducement” includes—
(a) coercion of an accused person to enter
into a plea bargaining; and
(b) fraudulent misrepresentation of a
material fact by the prosecutor either
before a plea bargaining is entered into
or during the course of discussion on
plea agreement;
PLEA AGREEMENT) ACT
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“plea agreement” or “agreement” means an agreement
entered into—
(a) between the accused person and the
prosecutor; or
(b) between the attorney-at-law for the
accused person and the prosecutor,
whereby the accused person agrees to plead guilty
and the prosecutor agrees to take a particular course
of action;
”plea bargaining” means a discussion held with a view to
arriving at an agreement—
(a) between an accused person and a
prosecutor; or
(b) between an attorney-at-law for an accused
person and a prosecutor,
either before the arraignment of the accused
person, or at any time after the trial of the accused
person commences but before a sentence is
pronounced;
”particular course of action” includes—
(a) an application to the Court to dismiss other
charges;
(b) a recommendation to the Court to a
particular sentence;
(c) an agreement not to oppose a request by the
accused person, or his Attorney-at-law, for a
particular sentence;
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Application of
Act.

Plea
bargaining.
(d) an agreement that a specific sentence is
appropriate for the disposal of the case;
“prosecutor” means the Director of Public Prosecutions, an
attorney-at-law in the office of the Director of
Public Prosecutions, a police prosecutor or an
attorney-at-law whom the Director of Public
Prosecutions has authorised in writing to act on his
behalf;
“relative” means the spouse (including a reputed spouse),
parent or step-parent, child or step-child of the
victim.
3. (1) This Act applies to a plea bargaining and a plea
agreement in respect of all indictable or summary offences.
(2) This Act does not affect the right of an accused
person to plead guilty without entering into plea bargaining.
(3) Except as expressly agreed to by the Director of
Public Prosecutions in a plea agreement, nothing in this Act
shall affect the functions assigned to the Director of Public
Prosecutions under article 187 of the Constitution.
PART II
PLEA BARGAINING
4. (1) Where the Director of Public Prosecutions
considers it desirable in the interest of justice in any case, he
may, at any time before the judgment is pronounced enter
into a plea bargaining with the attorney-at-law of the accused
person or where the accused person defends himself without
availing himself of the services of an attorney-at-law, with the
accused person for the purpose of arriving at a plea
agreement for disposal of any charge against the accused.
(2) A prosecutor other than the Director of Public
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Improper
indictment.



Representation
by attorney-at-
law.

Prosecutions shall not enter into plea bargaining with an
accused person or his attorney-at-law, unless he first obtains
the written authorisation from the Director of Public
Prosecutions.
5. (1) A prosecutor who uses an improper inducement
to encourage an accused person to participate in a plea
bargaining commits an offence and is liable on summary
conviction to a fine of twenty-five thousand dollars and to
imprisonment for five years.
(2) A police officer or the attorney-at-law for an
accused person who—
(a) conspires with the prosecutor in the
commission of an offence under
subsection (1); or
(b) attempts, incites, aids, abets, counsels
or procures the commission of such
an offence under subsection (1),
commits an offence and is liable on summary conviction to a
fine of twenty thousand dollars and to imprisonment for five
years.
(3) No prosecution under this section shall be
instituted without the written consent of the Director of
Public Prosecutions.
6. (1) Where an accused person has engaged the
services of or avails himself of the services of an attorney-at-
law, a prosecutor may not engage in a plea bargaining
directly with the accused person in the absence of his
attorney-at-law.
(2) A prosecutor shall inform an accused person of
his right to representation by an attorney-at-law in the plea
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Prohibition
against plea
bargaining.


Victim to be
consulted.
bargaining.
(3) An accused person who cannot afford to retain
an attorney- at-law may apply for legal aid.
(4) Notwithstanding subsection (3), the Judge, in
the exercise of his jurisdiction, may appoint an attorney-at-
law for the accused person.
7. A prosecutor shall not suggest, conclude or
participate in any plea bargaining that requires the accused
person to plead guilty to a bargaining offence that—
(a) is not disclosed by the evidence;
(b) inadequately reflects the gravity of
the provable conduct of the accused
person unless, in exceptional
circumstances, the charge is justifiable
in terms of the benefits that will
accrue to the administration of justice,
the protection of society, or the
protection of the accused;
(c) requires the prosecutor to withhold or
distort evidence.
8. (1) A prosecutor shall, unless the circumstances
make it impracticable to do so, obtain the views of the victim
or a relative of the victim before concluding plea bargaining.
(2) A prosecutor who arrives at a plea agreement
with the accused person shall ensure that the victim is
informed of the substance of, and reasons for, the agreement,
unless compelling reasons, such as the likelihood of serious
harm to the accused or to another person, require otherwise.

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Plea agreement.
Schedule
Form I

Schedule
Form II


Hearing in
chambers.
PART III
PLEA AGREEMENTS
9. (1) A plea agreement which has been concluded
between the prosecutor and the attorneys-at-law for the
accused person shall be set out as in Form I of the Schedule
and where such agreement is concluded, the prosecutor shall
file the agreement with the Registrar or the Clerk of the Court,
as the case may be.
(2) A plea agreement which has been concluded
between the prosecutor and an unrepresented accused person
shall be set out as in Form II of the Schedule and where such
agreement is concluded it shall be signed by both parties in
the presence of a Justice of the Peace and filed with the
Registrar or Clerk of the Court, as the case may be.
(3) Upon receipt and filing of the plea agreement,
the Registrar or the Clerk of the Court shall set down the
matter for hearing before a Judge or Magistrate, as the case
may be.
10. (1) The prosecutor shall disclose to the Court, in
Chambers, in the presence of the attorney-at-law for the
accused or, where the accused is unrepresented, in the
presence of the accused—
(a) the substance of, and reasons for, the
plea agreement; and
(b) whether any previous plea agreement
has been disclosed to another Judge
or Magistrate in connection with the
same matter and, if so, the substance
of that agreement.
(2) The Judge or Magistrate shall in open court
before accepting a plea agreement determine to his
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Views of victim
in open court.

Offer of
accused to
plead guilty.
satisfaction that—
(a) no improper inducement was made to
the accused person to enter into the
agreement;
(b) the accused person understands the
nature, substance and consequences
of the agreement;
(c) the offence to which the agreement
relates adequately reflects the gravity
of the provable conduct of the
accused, unless in exceptional
circumstances the agreement is
justifiable in terms of the benefits that
may accrue to the administration of
justice, the protection of society or the
protection of the accused.
PART IV
MISCELLANEOUS
11. (1) Subject to subsection (2), the Judge or
Magistrate shall in open court seek the views of the victim or
a relative of the victim, before recording the terms of the
agreement and passing sentence.
(2) The Judge or Magistrate may, where he
considers it prudent to do so, retire to Chambers to hear the
views of the victim or relative, as the case may be, and such
views shall be heard in the presence of the prosecutor and the
attorney-at-law for the accused or, in event that the accused is
unrepresented, in the presence of the accused.
12. (1) Where an accused person, charged for an
offence offers, at the commencement of the trial or at any time
thereafter before its conclusion, to plead guilty to an offence if
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Withdrawal
from plea
agreement by
accused person
or prosecutor
before sentence.

Appeal against
sentence.
other charges against him are dismissed, the Judge or
Magistrate, as the case may be, shall inquire of the prosecutor
whether he agrees to accept the offer of the accused person.
(2) Where the prosecutor agrees to accept the offer
of the accused person, the matter shall be disposed of
accordingly.
(3) Where the prosecutor refuses to accept the offer
of the accused person, the trial shall continue.
13. (1) An accused person who enters into a plea
agreement shall be entitled to withdraw from the agreement
before sentence, or to appeal against a conviction based on the
agreement if—
(a) it was entered into as a result of an
improper inducement;
(b) it was entered into as a result of a
misrepresentation as to the substance
or consequences of a plea agreement;
or
(c) the prosecutor has breached the terms
of the plea agreement.
(2) A prosecutor who enters into a plea agreement
shall be entitled to withdraw from that agreement before
sentence or to appeal against an acquittal based on the
agreement, if it was entered into by misrepresentation of facts
or by any fraud or inducement or the accused has breached
any term of the plea agreement.
14. (1) Where an accused person pleads guilty to an
offence and, upon his conviction receives a sentence that
accords with, or is within the range anticipated by, the plea
agreement, the Director of Public Prosecutions shall not be
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Withdrawal
from plea
agreement by
prosecution
after
conviction.
permitted to appeal against the sentence imposed by the
Judge or Magistrate unless it is shown that—
(a) the prosecutor, in the course of a plea
bargaining, was wilfully misled by
the accused person in some material
respect; or
(b) the Court, in passing sentence, was
wilfully misled in some material
respect.
(2) Where the Director of Public Prosecutions is of
the opinion that the grounds described in subsection (1) (a) or
(b) exist, he may appeal against the sentence with the leave of
the Court of Appeal or a Judge thereof.
(3) The Director of Public Prosecutions shall give
notice of appeal in such manner as is prescribed by the Rules
of Court, within fourteen days of the sentence passed.
(4) The Court of Appeal or a judge thereof may
extend the time within which the notice of appeal may be
given.
15. (1) Notwithstanding the conviction of an accused
person and sentence pursuant to a plea agreement, the
Director of Public Prosecutions may seek, the leave of the
Court of Appeal to have the agreement, conviction or
sentence set aside where the prosecutor—
(a) was, in the course of plea bargaining,
wilfully misled by the accused person
or by his attorney-at-law in some
material respect; or
(b) was induced to conclude the plea
agreement by conduct amounting to
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Inadmissible
evidence.
Plea agreement
not binding on
the court.

Legal aid to
accused
persons in
certain
circumstances.
Power to
amend
schedule.
Power to make
regulations.
an obstruction of justice.
(2) The Director of Public Prosecutions shall give
notice of appeal in such manner as prescribed by the Rules of
Court within three months of the sentence passed.
(3) If the Court of Appeal is satisfied that there
have been sufficient grounds for not preferring the appeal
within the period of three months it may extend the time
within which notice of appeal may be given.
16. Evidence of a plea agreement later withdrawn or
of an offer to enter into a plea agreement, or of a statement
made in connection with any such agreement or offer is
inadmissible in any proceedings.
17. The Judge or Magistrate may reject a plea
agreement entered into between the prosecution and the
accused person if he considers that it is not in the interest of
justice to do so.
18. Legal aid may be granted to an accused person in
respect of the conduct of plea bargaining under this Act.
19. Subject to negative resolution of the National
Assembly, the Minister may by order amend the Schedule.

20. Subject to negative resolution of the National
Assembly, the Minister may make regulations generally for
the purpose of giving effect to the provisions of this Act.

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s. 9(1)
SCHEDULE
(See section 9)
FORM I
PLEA AGREEMENT
IN THE HIGH COURT OF GUYANA/MAGISTRATE’S
COURT
District.................................... No.
A.B. —The State/Complainant
verses
C.D. —Accused/Defendant
1. The accused/defendant was on the ........................
day of............................... 20........ charged with the following
sentence(s):
(a)
(b)
(c)
(d)
2. A plea agreement was on the ....................... day
of............................. 20....... concluded between the prosecutor
and the attorney-at-law for the accused/defendant.
It was agreed that the accused/defendant shall plead
guilty to—
(a)

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(b)
(c)
(d)
(e)
and in consideration that the prosecutor shall take a certain
course of action mentioned hereunder.
3. It was agreed that the prosecutor shall take the
following course of action:
*(a) a recommendation to the Court to
dismiss other charges; [ ]
*(b) a recommendation to the Court as to a
particular sentence; [ ]
*(c) an agreement not to oppose a request
by the Attorney-at-law for the
Accused/Defendant for a particular
sentence; [ ]
*(d) an agreement that a specific sentence
is appropriate for the disposition of
the case. [ ]
Dated this ....................... day of............................. 20.......
(Signed) (Signed)
Prosecutor Attorney-at-law for the Accused/Defendant
(Signed) Accused/Defendant
*[ ] particular course of action to be taken.

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s. 9 (2)
DECLARATION BY THE ACCUSED PERSON
I have read this Agreement and carefully
considered/discussed each paragraph with my attorney-at-
law. I understand the terms of this Agreement and agree to it
without reservation. I voluntarily and of my free will agree to
those terms. I am pleading guilty to the charge(s)
....................................... My attorney-at-law has advised me/I
am fully aware of my rights, of possible defences, of the
penalties and of the consequences of entering into this
agreement/I have no attorney-at-law engaged. No promises,
agreements, understanding or inducements have been made
to me other than those contained in this Agreement. No one
has threatened or forced me in any way to enter into this
Agreement. I have had sufficient time to consider/confer with
my attorney-at-law concerning the plea agreement.
I am satisfied with the representation of my attorney-at-
law in this matter.
Place..................... Signature
Date Name of Accused
________________

FORM II
PLEA AGREEMENT
IN THE HIGH COURT OF GUYANA/MAGISTRATE’S
COURT
District.................................... No.
A.B. —The State/Complainant
verses
C.D. —Accused/Defendant
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1. The accused/defendant was on the ........................
day of............................... 20........ charged with the following
offence(s):
(a)
(b)
(c)
(d)
2. The prosecutor informed the accused/defendant
that he could be represented by attorney-at-law and the
accused/defendant informed the prosecutor that he did not
wish to be represented by an attorney-at-law.
3. A plea agreement was on the ....................... day
of............................. 20....... concluded between the prosecutor
and the accused/defendant.
4. It was agreed that the accused/defendant shall plead
guilty to—
(a)
(b)
(c)
(d)
and in consideration that the prosecutor shall take a certain
course of action mentioned hereunder.
5. It was agreed that the prosecutor shall take the
following course of action:
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*(a) a recommendation to the Court to
dismiss other charges; [ ]
*(b) a recommendation to the Court as to a
particular sentence; [ ]
*(c) an agreement not to oppose a request
by the Accused/Defendant for a
particular sentence; [ ]
*(d) an agreement that a specific sentence
is appropriate for the disposition of
the case. [ ]
Dated this ....................... day of............................. 20.......
(Signed) (Signed)
Prosecutor Accused/Defendant
*[ ] particular course of action to be taken.
DECLARATION BY THE ACCUSED PERSON
I have carefully read this Agreement. I understand the
terms of this Agreement and agree to it without reservation. I
voluntarily and of my free will agree to those terms. I am
pleading guilty to the charge(s) ....................................... I know
my rights, of possible defences, of the penalties and of the
consequences of entering into this agreement. No promises,
agreements, understanding or inducements have been made
to me other than those contained in this Agreement. No one
has threatened or forced me in any way to enter into this
Agreement. I have had sufficient time to consider the plea
agreement matter.
Place..................... Signature

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Date Name of Accused
CERTIFICATION OF JUSTICE OF THE PEACE
I .............................................................. Justice of Peace for
the County/District of ................................................. hereby
certify that the above plea agreement was signed by
the prosecutor............................................................. and (name of
prosecutor)
the Attorney-at-law for accused/defendant
............................................... in my (name of attorney-at-law)
presence on
the ....................... day of............................. 20.......
(Signed)
Justice of Peace
_________________
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