Criminal Procedure (Plea Discussion and Plea Agreement) Act


Published: 2008-12-22

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Criminal Procedure (Plea Discussion and Plea Agreement)
CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

[CH.91A – 1





LRO 1/2010 STATUTE LAW OF THE BAHAMAS

CHAPTER 91A

CRIMINAL PROCEDURE (PLEA DISCUSSION AND
PLEA AGREEMENT)


LIST OF AUTHORISED PAGES
1 – 14 LRO 1/2010



ARRANGEMENT OF SECTIONS

SECTION

PART I - PRELIMINARY
1. Short title.
2. Interpretation.
3. Application of Act.

PART II - PLEA DISCUSSIONS
4. Plea discussions.
5. Improper inducement.
6. Representation by attorney.
7. Prohibition against plea discussions.
8. Victim to be consulted.

PART III - PLEA AGREEMENTS
9. Plea agreements.
10. Hearing in Chambers.

PART IV - GENERAL
11. Views of victim in open court.
12. Offer of accused to plead guilty.
13. Withdrawal of agreement by accused person.
14. Appeal against sentence.
15. Inadmissable evidence.
16. Plea agreement not binding on the Court.
17. Taking outstanding offences into consideration.


FORM 1

FORM 2

FORM 3


CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

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LRO 1/2010 STATUTE LAW OF THE BAHAMAS

CHAPTER 91A

CRIMINAL PROCEDURE (PLEA DISCUSSION AND
PLEA AGREEMENT)

An Act to provide for the establishment of a system
of plea discussions and for other matters incidental
thereto.

[Assent – 19th December, 2008]
[Commencement – 22nd December, 2008]

PART I - PRELIMINARY

1. This Act may be cited as the Criminal Procedure
(Plea Discussion and Plea Agreement) Act.

2. In this Act —
“Court” means the Supreme Court or

Magistrate's Court, as the context may
require;

“improper inducement” includes —
(a) the coercion of an accused person to

enter into a plea discussion; and
(b) the fraudulent misrepresentation of a

material fact by the prosecutor either
before a plea discussion is entered into
or during the course of such
discussion;

“plea agreement” or “agreement” means an
agreement entered into —
(a) between the accused person and the

prosecutor; or
(b) between the attorney 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 discussions” or “discussion” means a
discussion —
(a) between an accused person and a

prosecutor; or

32 of 2008

S.I. 118/2008.

Short title.

Interpretation.

[CH.91A – 4 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

(b) between an attorney 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,
with the view towards arriving at an
agreement;

“particular course of action” includes —
(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 person, or his attorney,
for a particular sentence;

(d) an agreement that a specific sentence
is appropriate for the disposition of the
case;

“prosecutor” means the Attorney-General or an
attorney in the Office of the Attorney-
General or a police officer being an officer
to whom the Attorney-General has given
written instructions to enter into a plea
agreement;

“relative” means the spouse, parent or child of
the victim.

3. (1) This Act applies to a plea discussion and a
plea agreement in respect of an indictable or summary
offence.

(2) This Act does not affect the right of an accused
person to plead guilty without entering into a plea
discussion.

Application of
Act.

CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

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LRO 1/2010 STATUTE LAW OF THE BAHAMAS

PART II - PLEA DISCUSSIONS

4. (1) Subject to subsection (2), a prosecutor and an
accused person or where the accused person is represented
by an attorney, a prosecutor and the attorney for the
accused person, may engage in plea discussions.

(2) A prosecutor other than the Attorney-General
shall not conclude a plea agreement with an accused person
or his attorney, unless he first obtains the written
permission of the Attorney-General.

5. (1) A prosecutor who uses an improper
inducement to encourage an accused person to participate
in a plea discussion is liable on summary conviction to a
fine of twenty-five thousand dollars and to a term of
imprisonment of five years.

(2) A police officer or attorney for an accused person
is liable to a fine of twenty-five thousand dollars and to
imprisonment for five years where he —

(a) conspires with the prosecutor in the commission
of an offence under subsection (1);

(b) attempts, incites, aids, abets, counsels or procures
the commission of such an offence under
subsection (1).

(3) No prosecution under this section shall be
instituted without the written consent of the Attorney-
General.

6. (1) Where an accused person has retained an
attorney, a prosecutor shall not engage in a plea discussion
directly with the accused person in the absence of his
attorney.

(2) A prosecutor shall inform an accused person of
his right to representation, by an attorney, in the plea
discussion.

(3) Where an accused person cannot afford to retain
an attorney —

(a) if the accused person is charged with an offence
for which the punishment is death, the Court shall
assign counsel for the defence at the public
expense; and

Plea discussions.

Improper
inducement.

Representation
by attorney.

[CH.91A – 6 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

(b) in any other case, the Court in its discretion may
assign counsel for the defence at the public
expense.

(4) In cases where an accused person who has
indicated that he wishes to be assigned a counsel is not
assigned a counsel, the prosecutor shall not have any
discussions directly with the accused, unless the accused
person waives in writing his right to be represented by
counsel as set out in Form 1 in the Schedule.

7. A prosecutor shall not suggest, conclude or
participate in any plea discussion that requires the accused
person to plead guilty to an 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 or the protection
of society.

8. (1) A prosecutor may obtain the views of the
victim or a relative of the victim before concluding plea
discussions.

(2) A prosecutor who arrives at a plea agreement
with the accused person may ensure that the victim is told
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, requires otherwise.

PART III - PLEA AGREEMENTS

9. (1) A plea agreement which has been concluded
between the prosecutor and the counsel for the accused
person shall be set out as in Form 2 of the Schedule and
where such agreement is concluded, it shall be signed by
them together by the accused and the prosecutor shall file
the agreement in the registry of the Court.

(2) A plea agreement which has been concluded
between the prosecutor and an unrepresented accused
person shall be set out as in Form 3 of the Schedule and
where such agreement is concluded it shall be signed by
both parties in the presence of the clerk of the court and
filed in the registry of the Court.

Form 1,
Schedule.

Prohibition
against plea
discussions.

Victim to be
consulted.

Plea agreements.

Form 2,
Schedule.

Form 3,
Schedule.

CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

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LRO 1/2010 STATUTE LAW OF THE BAHAMAS

(3) The clerk of the court shall, upon receipt and
filing of the agreement, set the matter down for hearing
before the Court.

(4) In this Act, “clerk of the court” means a person
designated by the Registrar (or Chief Magistrate) as the
case may be.

10. (1) When a plea agreement has been concluded
the prosecutor shall disclose to the Court, in Chambers, in
the presence of the counsel for the accused or, where the
accused is unrepresented, in the presence of the accused —

(a) the substance of, and reasons for, the agreement;
and

(b) whether any previous 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, when sitting in
open Court, before accepting a plea agreement determine
to his 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 will accrue to the
administration of justice or the protection of
society.

PART IV - GENERAL

11. (1) Subject to subsection (2) the Judge or
Magistrate may 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

Hearing in
Chambers.

Views of victim
in open Court.

[CH.91A – 8 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

accused and his attorney or, in the 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 certain charges against him are dismissed, the
Judge or Magistrate 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. An accused person who enters into a plea
agreement shall be entitled to withdraw from that
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.

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 prosecutor shall not be 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 discussion,
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 Attorney-General is of the opinion that
the grounds described in subsection (1) (a) or (b) exist he
may appeal against the sentence.

Offer of accused
to plead guilty.

Withdrawal of
agreement by
accused person.

Appeal against
sentence.

CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

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LRO 1/2010 STATUTE LAW OF THE BAHAMAS

(3) The Attorney-General shall give notice of appeal
in such manner as is prescribed by the Rules of Court,
within fourteen days of the date of sentencing.

(4) The Court of Appeal however, may extend the
time within which notice of appeal may be given.

15. 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.

16. The Judge or Magistrate may reject a plea
agreement entered into between the prosecution and the
accused if he considers that it is in the public interest to do
so.

17. A plea agreement may if the accused so desires
include any outstanding matters that are the subject of
information before a court or area being investigated and
which the accused and the prosecutor agree to have taken
into consideration at the time of sentencing.


Inadmissable
evidence.

Plea agreement
not binding on
the Court.

Taking
outstanding
offences into
consideration.

[CH.91A – 10 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

SCHEDULE

FORM 1

(This Form applies where the accused/defendant does not wish
to be represented by an attorney in plea agreement)

THE COMMONWEALTH OF THE BAHAMAS

DECLARATION BY ACCUSED/DEFENDANT OF
DESIRE TO REPRESENT SELF IN THE

SUPREME/MAGISTRATE COURT
A.B. - The State/Complainant

V
A.B. - The Accused/Defendant

Whereas the accused/defendant was on the …………… day of
.............................. , 20............ charged with the following
offence(s):

(a)
(b)
(c)
(d)

And whereas the accused/defendant having been informed by
the prosecutor as to his right to representation by an attorney,
informed the prosecutor of his desire to represent himself in plea
discussions.
Dated this …………..day.of ................................... , 20………...



(Signed) (Signed)
Prosecutor Accused/Defendant

CERTIFICATION
I …………………..Clerk to Justice/Magistrate……..…..hereby
certify that the above declaration was signed by the prosecutor
........................... and the accused/defendant.............................. ..
(name of prosecutor) (name of accused/defendant)
in my presence on the …………….. day of…………….., 20….




(Signed)
Clerk of the Court

CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

[CH.91A – 11





LRO 1/2010 STATUTE LAW OF THE BAHAMAS

SCHEDULE

FORM 2

(This Form applies when the accused/defendant is represented
by an attorney)

THE COMMONWEALTH OF THE BAHAMAS IN THE
SUPREME/MAGISTRATE'S COURT PLEA

AGREEMENT
No.

A.B. - The State/Complainant
V

C.D. - Accused/Defendant
WHEREAS the accused/defendant was on the.................. day of
………………………., 20 …………………. charged with the
following offence(s):

(a)
(b)
(c)
(d)

And whereas a plea agreement was on the …………………..
day of ………………….., 20 …………. concluded between the
prosecutor and the attorney for the accused/defendant:
And whereas it was agreed that the accused/defendant shall
plead guilty to —

(a)
(b)
(c)
(d)
(e)

and in consideration that the prosecutor shall take certain course
of action mentioned hereunder;

[CH.91A – 12 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

And whereas 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 for the accused 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



(Signed)
Accused/Defendant
* [ √ ] indicate by ticking particular course of action to be taken.

CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)

[CH.91A – 13





LRO 1/2010 STATUTE LAW OF THE BAHAMAS

SCHEDULE

FORM 3

(This Form applies where the accused/defendant is not
represented by an attorney)

THE COMMONWEALTH OF THE BAHAMAS IN THE
SUPREME/MAGISTRATE'S COURT PLEA

AGREEMENT
No.

A.B. - The State/Complainant
V

C.D. - Accused/Defendant

Whereas the accused/defendant was on the ............................day
of ……………, 20........ charged with the following offence(s):

(a)
(b)
(c)
(d)

And whereas the prosecutor informed the accused/defendant that
he should be represented by an attorney:
And whereas the accused/defendant informed the prosecutor that
he did not wish to be represented by an attorney:
And whereas a plea agreement was on the

.................. day of ……………………………., 20 …………..
concluded between the prosecutor and the accused/defendant:
And whereas it was agreed that the accused/defendant shall
plead guilty to —

(a)
(b)
(c)
(d)
(e)
(f)

in consideration that the prosecutor would take a certain course
as mentioned hereunder:

[CH.91A – 14 CRIMINAL PROCEDURE (PLEA DISCUSSION AND PLEA
AGREEMENT)





STATUTE LAW OF THE BAHAMAS LRO 1/2010

And whereas it was agreed that as a result of the
accused/defendant pleading guilty to the said offence(s), or
testifying against any coaccused the prosecutor shall take the
following course of action —

*(a) a recommendation to the Court to dismiss all or
certain charges; [ ]

*(b) a recommendation to the Court as to a particular
sentence; [ ]

*(c) an agreement not to oppose a request by the
accused 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

* [ √ ] indicate by ticking particular course of action to be taken.

CERTIFICATION
I ……………….(Magistrate) for the District of......................... ,
hereby certify that the above plea agreement was signed by the
prosecutor......................, and the attorney for accused/defendant
(name of prosecutor)
........................ , in my presence on the ….........................day of
(name of Attorney) , ………………………………… 20……….





(Signed)
Clerk of the Court