ICFAI LAW SCHOOL,

DEHRADUN

ASSIGNMENT ON

COMPARATIVE CRIMINAL LAW

TOPIC: PLEA BARGAINING

Submitted by:

Name: TRISHA
Enrollment No. 23FLPCDDN01055
Course code: LM621
Course Name: Comparative Public Law
Course: LL.M
Specialization: Corporate Law
E-mail: trishashandilyaa@gmail.com
Faculty Name: Dr. Vivek Kumar
INTRODUCTION

From time immemorial, one f the primary functions of the state has been to maintain law
and order and ensure that justice prevails. This has been a function that remained
unchanged even when the state was evolving from a police state to a welfare state. The
citizens pay taxes every year to the state and the officials for the smooth functioning of all
the three organs of the state. Prolonged pre trials and back log in cases resulting in undue
delay in justice will affect the credibility and reliability of the judiciary which is the corner
stone of the legal system. With the introduction of sections 265A to 265L to the Code of
Criminal Procedure, 1973 by the Criminal Law (Amendment) Act of 20051 the legislature
has officially induced plea bargaining into the Indian Legal System to curb the problem of
logging of cases in the Indian Courts and to beneficial in contributing to reforming our
criminal justice system.

ORIGIN OF PLEA BARGAINING

Plea bargaining is a concept that originated in the United States and it has evolved over the
age to become a prominent feature of the American Criminal Justice System2. Plea
bargaining is the re trial negotiation between the defendant and prosecution during which
accused pleads guilty in exchange for certain concession by the prosecutor. This usually
involves negotiations to reduce either the sentence or the seriousness of the charge. In the
US, more than 75% of criminal cases end in guilty pleas, almost all resulting from plea
bargaining. In federal courts, virtually all the defendants who plead guilty qualify for a 20 %
reduction in the length of their sentence.3 The constitutional validity of plea bargaining was
considered by the US courts in the landmark decision in Bradley v. United States4 where the
court upheld te constitutionality of plea

1 The author is a student of National University of Advanced Legal

studies, Kochi.1 This chapter has come to force w.e.f. 5-7-2006 vide
notification No.S.O.990 (E), dt.3-7-2000.
2
Wanna make a deal? The introduction of plea bargaining in India by
Sulabh Rewari and Tanya Aggarwal (2006) 2 SCC (Cri) J-12
3 Gale Encyclopedia of US history
4 397 U.S 742
bargaining. The court then held that plea bargaining is constitutional through its
decisions in various subsequent cases.5

CONCEPT OF PLEA BARGAINING IN INDIA

In the United States, the accused has three options with respect to pleas; guilty, not guilty
or plea of nolo contendere6. In plea of nolo contendere the defendant answers the charges
made in the indictment by declining to dispute or admit the fact of his or her guilt. The
defendant who pleads nolo contendere submits for a judgment fixing a fine or sentences the
same as if he or she had pleaded guilty. The difference is that a plea of nolo contendere
cannot later be used to prove wrongdoing in a civil suit for monetary damages, but a plea of
guilty can.7
A plea bargain is a contractual agreement between the prosecution and the accused
concerning the disposition of a criminal charge. However, unlike most contractual
agreements, it is not enforceable until a judge approves it.8
The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere. It
has been incorporated by the legislature after several law commission recommendations.
This doctrine has been considered and implemented in a manner that takes into account the
social and economic conditions prevailing in our country.9 There are three types of plea
bargaining:

i)charge bargaining; ii) sentence bargaining; and iii) Fact bargaining. Negotiating for
dropping some charges in a case of multiple charge or settling for a less grave charge is
called charge bargaining. Where the accused has an option of admitting guilt and settling
for a lesser punishment it is sentence bargaining. Lastly, negotiation which involves an
admission to certain facts in return for an agreement not to introduce certain other facts is
fact bargaining.110

5 Corbitt v New Jersey 439 U.S 212; Bordenkircher v Hayes 434 U.S. 357
6 Latin term which means" I do not wish to contest"
7 West's Encyclopedia of American Law
8
Supra n 3
9 Plea Bargaining - A Practical Solution by Sowmya Suman
10 Plea Bargaining : A Revelation by Dr Abraham P. Meachinkara 2010 (4) klt jrl
REASONS FOR INTRODUCTION OF PLEA BARGAINING

The Law commission in its 142nd report had outlined a scheme for plea bargaining in
India .In its report the commission pointed out that in several cases the time spent by the
accused in jail before commencement of trial exceeds the maximum punishment which can
be awarded to them if found guilty,11 there is unavailability of statistical data regarding
under trial prisoners etc., resulting in a denial of justice. The report brought out the urgency
for an improved version of the scheme to be implemented.12There were some reservations
with respect to introduction of plea bargaining in India, mainly, issues like illiteracy,
prosecution pressure on innocent persons, incidence of higher crime rates, criminals may
escape due punishment to which the commission stated that the pros and cons should be
weighed before implementation. The commission in its 154th Report, the Law Commission
reiterated the need for remedial legislative measures to reduce the delays in the disposal of
criminal trials and appeals and also to alleviate the suffering of under trial prisoners. The
177th Report of the Law Commission, 2001 also sought to incorporate the concept of plea-
bargaining as suggested in the 154th report.13 The Report of the Committee on Reforms of
the Criminal Justice System, 200314stated that plea-bargaining being a means for the
disposal of accumulated cases and expediting the delivery of criminal justice should be
introduced. The Committee thus reaffirmed the recommendations of the Law Commission
of India in its 142nd, 154th and 177th Reports.15
Indian Judiciary’s Approach towards Plea Bargaining

The Indian judiciary has been reluctant in applying this concept prior to the 2005
amendment and has on various occasions rejected the concept of plea bargaining even
after several recommendations of the Law Commission of India.16 This was evident since
the courts continued giving decisions unfavorable to plea bargaining even after such
recommendations.
The earliest cases in which the concept of plea bargaining was considered by the
Hon’ble Court

11 Rudul Shah v. State of Bihar AIR 1981 SC 928

12 The subject of the 142nd Report of the Law Commission of India was on
the concessional treatment for offenders who on their own initiative plead guilty
without bargaining. See http://lawcommissionofindia.nic.in/101-169/Report142.pdf
13 See http://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th
%20report.pdf
14 Headed by Justice V.S.Malimath, former Chief Justice of Karnataka and
Kerala High Courts. The first time that the State has constituted such a
Committee for a thorough and comprehensive review of the entire
15 Criminal Justice System so that necessary and effective systematic
reforms can be made to improve the health of the system.
16 See http://www.mha.nic.in/pdfs/criminal_justice_system.pdf
17 Supra n 15
was Madanlal Ramachander Daga v. State of Maharashtra17 in which it observed:
“In our opinion, it is very wrong for a court to enter into a bargain of this
character Offences should be tried and punished according to the guilt of the
accused. If the Court thinks that leniency can be shown on the facts of the case it
may impose a lighter
sentence.”
In Muralidhar Megh Raj v. State of Maharashtra18 the Apex Court continued to disapprove
the concept of plea bargaining when the appellants pleaded guilty to the charge where-upon
the trial Magistrate, sentenced them each to a piffling fine. The Court observed:
“To begin with, we are free to confess to a hunch that the appellants had hastened with

their pleas of guilty hopefully, induced by an informal, tripartite understanding of

light sentence in lieu of nolo contendere stance.”
In Ganeshmal Jasraj v. Government of Gujarat and another19 the Apex Court considered
the effect of plea bargaining on evidence and order of conviction when it observed:
“There can be no doubt that when there is an admission of guilt made by the accused

as a result of plea bargaining or otherwise, the evaluation of the evidence by the

Court is likely to become a little superficial and perfunctory and the Court may be
disposed to refer to the evidence not critically with a view to assessing its
credibility but mechanically as a matter of formality in support of the admission of
guilt. The entire approach of the Court to the assessment of the evidence would be
likely to be different
when there is an admission of guilt by the accused….In the instant case, it is true that
the learned magistrate did not base his order of conviction solely on the admission of
guilt made by the appellant, but it is clear from his judgment that his conclusion was
not unaffected by the admission of guilt on the part of the appellant and in the
circumstances, it would not be right to sustain the conviction of the appellant.”
Subsequently in Kasambhai Ardul Rehmanbhai Shaikh v.State of Gujarat20the Hon’ble
Court
held:
“It would be contrary to public policy to allow a conviction to be recorded against an
accused by inducing him to confess to a plea of guilty on an allurement being held out

17 AIR 1968 SC 1267

18 AIR 1976 SC 1929
19 AIR 1980 SC 264
20 AIR 1980 SC 854
to him that if he enters a plea of guilty, he will be let off very lightly. Such a
procedure would be clearly unreasonable, unfair and unjust and would be violative
of Art. 21 of
the Constitution. It would have the effect of polluting the pure fount of justice because it
might induce an innocent accused to plead guilty to suffer a light and inconsequential
punishment rather than go through a long and arduous criminal trial.”
In Kachhia Patel Shantilal Koderlal v.State of Gujarat and another21.The Court held
that practice
of plea bargaining is unconstitutional, illegal and would tend to encourage
corruption, collusion and pollute the pure fount of justice.
In State of U.P v. Chandrika22 The Hon’ble Apex Court observed:
“Mere acceptance or admission of the guilt should not be a ground for reduction of

sentence. Nor can the accused bargain with the Court that as he is pleading
guilty sentence be reduced.”
After the amendment, the concept of plea bargaining has found recognition in the
Indian Courts since the court is left with no option but to interpret the law and not make
laws. The courts have held that criminals who admit their guilt and repent upon, a
lenient view should be taken, while awarding punishment.23

CRITICAL ANALYSYS OF CHAPTE XX1 A

Chapter XXI-A of Code of Criminal Procedure, 1973 deals with plea bargaining. This
chapter consists of 12 sections from Section 265A to 265 L.
S. 265 A lays out the applicability of plea bargaining. It states that this remedy is available
only in respect of offences for which the punishment is less than seven years of
imprisonment. The section excludes offences for which punishment of death or of
imprisonment for life or of imprisonment for a term exceeding seven years has been
provided under the law for the time being in force and those affecting socio- economic
conditions and offences committed against a woman or child less than fourteen years .Sub-
section (2) of section 265 A confers power on the Central Government to determine those
offences under the law for the time being in force that

21 [1980] 3 SCC 120

22 AIR 2000 SC 164
23 state of Gujarat v. Natwar Harchanji Thankor 2005 Crl.L.J. 2957 (Guj)
affect the socio-economic condition of the country and notify the same for the
purpose of subsection (1).
This section loses out on the very objective of introducing plea bargaining. One of the
reasons for the introduction of plea bargaining was due to the back logging in cases which
resulted in delay in justice. The applicability of this section is restricted to offences for
which punishment is less than seven years. Socio economic offences cover many of the
legislations starting from Dowry Prohibition Act, 1961 to recent Acts like Protection of
Women from Domestic Violence Act, 2005.24 When plea bargaining is not applicable to a
large number of statutes, the very purpose of the Amendment in reducing the case load is
lost.
Another concern is about those offences where a minimum sentence is prescribed by the
law. The Supreme Court has held that neither the trial court not the high court has the
jurisdiction to bypass the minimum sentence prescribed by law.25Here too the applicability
of plea bargaining is very much restricted since a person who has committed an offence
for which the punishment is lesser than seven years cannot take recourse to plea
bargaining if the minimum punishment is prescribed by law.

Also, this sub-section (2) of section 265A confers arbitrary power to the government to
decide those offences which constitute socio economic offences. There are no guidelines in
the chapter laying down the basis for classifying offences as socio economic offences. This
could later result in violation of Article 14 in case an accused feels that the classification is
arbitrary and discriminatory.
S. 265 B permits the accused to file for application for plea bargaining in the court where
the case is pending. The application is to be accompanied by an affidavit sworn by the
accused stating therein that he has voluntarily preferred, after understanding the nature and
extent of punishment provided under the law for the offence, the plea bargaining in his
case and that he has not previously been convicted by a Court in a case in which he had
been charged with the same offence. The court then issues notice to the Public Prosecutor
or the complainant of the case and the accused shall be examined in camera. If the court is
satisfied that the application is voluntary then it will provide to work out a mutual
satisfactory disposition of the case. If the court feels otherwise, the case will be from the
stage where such application has been filed for

24 Supra n 10
25 Kirpal v. state of Haryana 1999 Crl. L.J. 503 1 (SC)
plea bargaining.
The courts in most cases are left to determine whether or not an application is voluntary on
the basis of the facts and circumstances of each case. But there will always be an element
of pressure on the accused since he is being offered a lesser charge or reduced sentence.
No person would want to undergo a long trial and may agree to such concession in some
cases. Will such grounds be considered as a voluntary act by the Courts?
Sub-section (4) of this section states that the court shall provide time for the parties to
come to a mutually satisfactory disposition. But, it does not provide a specific time frame
with respect to mutually satisfactory disposition which is of grave concern since the
purpose of plea bargaining is for speedy justice and disposal of cases.
In addition, the section does not permit a person who has been convicted of the same
offence to apply for plea bargaining. Here again, the law makers failed to consider the
severity of the offence and has yet again restricted the scope for plea bargaining. There may
be a situation in the future where a person may take recourse to plea bargaining for a less
severe offence but the mutually satisfactory disposition may not work out and it may result
in his conviction. The section fails to consider such a situation while barring persons
convicted of same offence from using plea bargaining
Further, in case the court feels the application has been filed involuntarily, then it is
required to continue from the stage where the application was filed. Entrusting the duty on
the Courts to decide on whether a case is fit for plea bargaining or not also will take up
time of the courts. Instead, this process may be more time consuming since the courts will
have to first determine whether the application is voluntary or not and accordingly decide
after that.
S.256 C lays down the guidelines for mutually satisfactory disposition. The section
requires that the Court shall issue notice to the concerned parties and also the duty is
entrusted on the courts to ensure that the process of working out a satisfactory
disposition of the case is
voluntary. The court is not involved in the satisfactory disposition process but the section
still requires that it should ensure that the process is voluntary. The section in fact
doesn’t lay
down any guiding principle for the court to make sure that there is transparency and
the accused is not coerced at any stage of the process.
Under S. 265 D, the Court has to prepare a report, if a mutual satisfactory disposition of
the case has been worked out and such report shall be signed by the presiding officer of
the Court

and the parties in the Joint Meeting. If no satisfactory disposition is made out, the Court
has to proceed with the case, by dropping the proceedings in plea bargain and start the
proceedings from the stage, wherein the application is entertained. An accused, while
disposal of his application under plea bargaining, is entitled for setting off the period of
detention from the sentence of imprisonment imposed under S.265E.
Once the court delivers judgment under S. 265 F then the subsequent S.265 G states it is
final and no appeal will lie against such Judgment. However such Judgments are subject to
challenge under Articles 226 and 227 of the Constitution before the High Court by filing
Writ Petition and Article 136 of the Constitution before the Supreme Court by filing
Special Leave Petition. Under S. 265H, Court shall have, for the purposes of discharging its
functions under this Chapter, all the powers vested in respect of bail, trial of offences and
other matters relating to the disposal of a case. S.265 I entitles the accused to set off the
period of detention; he had already undergone in the same case, during the investigation,
inquiry or trial, but before the date of conviction, incompliance of the provisions of S. 428
only. S.265 J contains the non obstante clause. S. 256 K states that the statements or facts
stated by the accused in an application for plea bargaining shall not be used for any other
purpose except for the purpose of the chapter and lastly, S. 265 L makes the chapter not
applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice
(Care and Protection of Children) Act, 2000.

OTHER CAUSES OF CONCERN

Plea bargaining is at its budding stage in our country and there are other causes of concern
that the law makers need to consider while making further amendments. Plea bargaining
may lead to poor police investigations and cases may not given enough time and proper
attention and for this reason cases may not be prepared well. This may happen if instead
of pursing justice there becomes a tendency for the investigating officers and others
concerned to rely on plea bargaining.

RECOMMENDATIONS
Even though the amendment has tried to address the problems of under trial prisoners by
mandating the court to give accused the benefit of Probation of Offenders Act where so ever
it is

permissible. Then Section 12 of the said Act provides that it shall not cast any stigma on
the offender. Sec 265 I also Section 428 applicable to the sentence awarded on plea
bargaining. But there is lack of awareness amongst under trial prisoners. Provisions
should be incorporated in the chapter making the probation officers and jail
superintendents duty bound to conduct sessions in prisons informing the under trial
prisoners of such a benefit which can be availed by them.
A specified time should be laid down within which if a trial hasn’t commenced the
under trial

prisoner should be let free. Police, prosecution, and judiciary should be made accountable
for delays in their respective spheres, not the under trial prisoners.
The accused in cases that are at appeal stage prior to the 2005 Amendment should be
allowed to avail this alternative remedy.
There should be more clarity on the offences which come under socio economic offences.
There should be guidelines given to the government as to what basis an offence should be
classified as socio economic offence. This can act as a safeguard against using this power
arbitrarily.
The applicability of the section should be widened and classification for the benefit of
plea bargaining should not be merely based on the number of years of punishment for a
particular offence but it should also consider the severity of the crime.
A parallel system should be set to consider cases dealing with plea bargaining. Only if the
forum feels that a satisfactory disposition cannot be worked out it should send the case
back to the court which should proceed from the stage where such application has been
filed for plea bargaining.
A time frame should be stipulated for working out a mutually satisfactory disposition.

CASE LAWS- before introduction of plea bargaining

 In Murlidhar Meghraj v. State of Maharashtra (AIR 1976 SC 1929),the SC

criticized the concept of Plea Bargaining & said that it intrudes upon the societies'
interests.
  In Kasambhai v. State of Gujarat(1980 AIR 854)& Kachia Patel Shantilal
Koderlalv. State of Gujarat & Anr, the apex court held that plea bargaining is against
public policy.
 Thippaswamy v. State of Karnataka,(1983)1 SCC 194, the court said that inducing
or leading an accused to plead guilty under a promise or assurance would be violative
of Art 21.

 In State of UP v. Chandrika (2000), the apex court disparaged the concept of

plea bargaining and held this practice as unconstitutional and illegal.

CASE LAWS after 2005

 State of Maharashtra v. Sanjay Govind Gudade(2014)—this case dealt with

the constitutionality of plea bargaining in India. The court held that plea
bargaining is constitutional and does not violate the principles of fair trial.

 Arnesh Kumar v. State of Bihar(2014)—this case dealt with the misuse of the
provisions of Sec 498A of IPC. The court held that the provision of plea bargaining
can be used to reduce the number of false cases filed under Sec 498A.

 The 2G spectrum scam case: In 2011, several politicians, bureaucrats, and

businesspeople were accused of corruption and fraud related to the allocation of 2G
spectrum licenses. In 2012, some of the accused opted for plea bargaining and
agreed to pay a fine in exchange for a reduction in charges.

 The Satyam scam case: In 2009, the chairman of Satyam Computer Services, a
leading IT company in India, admitted to inflating the company's profits and
manipulating its accounts. In 2011, he pleaded guilty to charges of fraud and forgery
and was sentenced to seven years in prison.

 The BMW hit-and-run case: In 2015, a businessman in Mumbai was accused of

driving his BMW car into a group of people, killing one and injuring several others.
He later opted for plea bargaining and was sentenced to five years in prison.

COMPARISON OF PLEA BARGAINING IN UK, US, FRANCE AND INDIA

UK

Plea bargaining is not officially recognized as a legal process in the United Kingdom, but it
is often used as a means of resolving criminal cases more efficiently. In practice, the Crown
Prosecution Service (CPS) has the power to offer a defendant a reduced sentence in exchange
for a guilty plea. This is known as a 'plea bargain', but it is not legally binding, and the judge
is not obliged to accept the agreement.

The main reason why plea bargaining is not recognized as a legal process in the UK is that it
is seen as undermining the principles of justice and fairness. The concern is that defendants
may be pressured into pleading guilty to a crime they did not commit in order to avoid a
more severe sentence. This could lead to wrongful convictions and miscarriages of justice.

However, plea bargaining is used in some circumstances where it is in the public interest to
do so. For example, if a defendant agrees to provide information that will assist in the
prosecution of other criminals, the CPS may offer a reduced sentence in exchange. This is
known as a 'plea agreement', and it is only used in exceptional cases where it is deemed to be
in the interests of justice.

Overall, while plea bargaining is not a formal legal process in the UK, it is sometimes used
as a means of resolving criminal cases more efficiently. However, the use of plea
bargaining is limited, and it is only used in exceptional cases where it is deemed to be in
the interests of justice.

The laws relating to plea bargaining are regulated by the Criminal Justice Act 2003
and the guidelines issued by the Crown Prosecution Service (CPS).

Following are some of the key provisions of UK law regarding plea bargaining:

 Early Guilty Plea Discount: In the UK, a defendant who pleads guilty at an early
stage of the proceedings may receive a reduction in sentence.
 Right to a Fair Trial: The defendant retains the right to a fair trial, and the
plea bargaining process must comply with the right to a fair trial.

 Transparency: The plea bargaining process must be transparent, and the terms of
any plea bargain agreement must be open to public scrutiny.
  Cooperation with the Prosecution: The defendant must fully cooperate with
the prosecution in order to be eligible for a plea bargain.

 Approval by the Court: The plea bargain agreement must be approved by the court,
and the judge must ensure that the terms of the agreement are fair and in accordance
with the law.

UK CASE LAWS

 R v. Cocker (1989) - This case established that a judge must make it clear to a
defendant that they are under no obligation to plead guilty, and that they should not
be induced to do so through promises or threats.

 R v. Vowles (2019) - This case established that there is no requirement for a

defendant to give reasons for choosing to plead guilty, and that the court should not
draw inferences from a failure to give reasons.

US

Plea bargaining is a well-established and widely used legal process in the United States. It
is estimated that more than 90% of criminal cases in the US are resolved through plea
bargaining. The plea bargain is an agreement between the defendant and the prosecutor,
which is then presented to a judge for approval.

In the US, plea bargaining is used as a means of reducing the burden on the criminal
justice system, avoiding the costs and delays associated with trials, and providing
defendants with an incentive to plead guilty and accept responsibility for their crimes.
Plea bargaining allows
defendants to receive a reduced sentence or a lesser charge in exchange for pleading guilty,
while prosecutors can secure a conviction without the risks and uncertainties of a trial.

There are two main types of plea bargaining in the US: charge bargaining and sentence
bargaining. Charge bargaining involves the defendant pleading guilty to a lesser charge in
exchange for the prosecution dropping more serious charges. Sentence bargaining involves
the defendant pleading guilty to the original charge, but in exchange, the prosecution
agrees to recommend a lighter sentence to the judge.
While plea bargaining is widely used in the US, it is not without controversy. Some critics
argue that it can lead to wrongful convictions, as defendants may be pressured into pleading
guilty to avoid the risks of a trial. Others argue that it can result in unequal justice, as
defendants with access to better legal representation may be able to negotiate more favorable
plea deals than those without. Nonetheless, plea bargaining remains a central feature of the
US criminal justice system.

In the United States, the laws relating to plea bargaining are regulated by the federal and
state criminal codes, as well as by court decisions. It is a common practice in the US,
with around 90% of criminal cases being resolved through plea bargaining.

Following are some of the key provisions of the US law regarding plea bargaining:

Voluntary Nature: Plea bargaining is a voluntary process, and the defendant

must agree to participate in order for a plea bargain to be reached.

Reduced Charges: In exchange for a guilty plea, the prosecutor may agree to reduce
the charges against the defendant or to recommend a more lenient sentence.

Approval by the Court: The plea bargain agreement must be approved by the court,
and the judge must ensure that the terms of the agreement are fair and in accordance
with the law.

Right to Trial: The defendant retains the right to a trial, even if they have agreed
to a plea bargain.

Informed Consent: The defendant must understand the rights they are giving
up by entering into a plea bargain, and the judge must ensure that the
defendant’s plea is
entered into knowingly and voluntarily.

Constitutional Protections: Plea bargaining must comply with the

constitutional protections of the defendant, such as the right to counsel and the
right to a fair trial.

US CASE LAWS
  Santobello v. New York (1971) - This case held that when a plea bargain is made,
the prosecution has an obligation to uphold its end of the bargain, and a defendant
has the right to withdraw a guilty plea if the prosecution fails to do so.

 United States v. Ruiz (2002) - In this case, the Supreme Court ruled that the
prosecution is not required to disclose all of the evidence in its possession to the
defense prior to a guilty plea, but only evidence that is material to the case.

FRANCE

The “Comparution sur reconnaissance préalable de culpabilité” (CRPC) is a pre-trial guilty

plea procedure that was introduced in France in 2004. As enshrined in articles 495-7 to 495-
16 of the French Criminal Code of Procedure (CCP), this form of criminal prosecution for
offences which carry a prison sentence up to 10 years, entitles the prosecutor to impose a
sentence on the offender who has consented to the procedure and pleaded guilty beforehand.
The guilty plea can be initiated by the prosecutor, the offender or his/her counsel. However,
if the prosecution and
the defence disagree, the decision rests with the prosecutor who thus has the final word in
the matter. Once the offender has accepted the sentence – or ‘the plea-bargain’ – a request
is filed to the Court for the judge’s approval or rejection of the whole procedure.

As mentioned above, the targeted offences are those specified in article 495-7 of the CCP
namely those carrying a prison sentence of 10 years or less. Nevertheless, the French guilty
plea is excluded for certain offences especially those which, by nature, imply an adversarial
debate (e.g.

involuntary manslaughter) or offences whose proceeding is defined by a special law (e.g.

offences related to the media, political offences). Besides, the CRPC cannot be triggered if
the offence constitutes a crime under French law. For instance, there is no such procedure
available for offences such as murder or rape.

The process
To be more specific, the French guilty plea procedure involves two phases: the
‘sentence proposal’ phase and the ‘approval hearing’ phase.
The ‘sentence proposal’ phase

This initial phase involves a brief discussion between the offender, his/her lawyer and the
prosecutor about the facts of the case so the prosecutor can decide what sentence it considers
the
most appropriate according to the seriousness of the offence as well as the offender’s
personal

and professional situation. It should be noted that under the French procedure, the assistance
of a lawyer is mandatory. During this meeting which is not open to the public, the prosecutor
– after a brief summary of the facts – asks the offender who is assisted by his/her lawyer to
confirm that he/she has committed the offence. The prosecutor then proposes a sentence
which the offender is free to accept or to refuse. The offender may also be granted a
reflection period of 10 days before communicating a decision.

If the defendant does not accept the sentence, he/she must be informed that the case will be
tried the “normal way” (i.e. through the traditional criminal justice process with a full
trial: a hearing dedicated to determine the innocence/guilt of the accused followed by a
sentencing hearing) before the Correctional Court with no prior agreement on the sentence
and consequently, without an opportunity to have a less harsh sentence imposed. If, however,
the offender consents to the procedure and accepts the sentence, the case reaches the second
phase.

The ‘approval hearing’ phase

This second phase takes place promptly after the prosecution and defence have reached an
agreement. During this public hearing, in which the prosecutor’s presence is not
required, the

judge ensures that the charges and the prosecution case are factually and legally correct and
that they match with the defendant’s confession. Moreover, the judge verifies that the
sentence
proposed by the prosecution and accepted by the offender is appropriate (with regard to the
seriousness of the offence and the defendant’s personal situation). If the judge has any
doubt on
the case or if he/she deems the sentence is not appropriate, the judge can only disapprove the
procedure and send the case to be tried before the Court. In other words, the judge can neither
impose nor propose a new sentence that he/she would believe to be appropriate. In case the
judge approves the guilty plea, a court order is issued and read in public. The order contains
the reasons (legal grounds) for such a decision and has the same effects as a judgment/order
of a court. Therefore, if no appeal is lodged, the order is comparable to an enforceable court
judgment (i.e. the order acquires the force of res judicata).

FRANCE CASE LAWS

 L'affaire Tapie In this case, French businessman Bernard Tapie was convicted of
fraud in a plea bargain agreement in which he admitted to having paid bribes to
arbitrators in dispute over the sale of Adidas. The plea bargain agreement allowed
Tapie to avoid a longer prison sentence, and he received a reduced sentence of two
years in prison.
 L'affaire des frères Attal: In this case, the Attal brothers, who were prominent
French businessmen, entered into a plea bargain agreement in which they admitted
to having engaged in illegal insider trading. The plea bargain agreement allowed the
Attal brothers to avoid a long prison sentence and to pay a significant fine.

POSITIVES OF PLEA BARGAINING

 Efficiency: Plea bargaining can significantly speed up the criminal justice process by
allowing cases to be resolved more quickly. This can reduce the burden on the courts
and allow for more cases to be heard.
 Reduced costs: Plea bargaining can also reduce the costs associated with criminal
trials, both for the prosecution and the defense.
 Reduced trauma for victims and witnesses: The process of plea bargaining can
spare victims and witnesses from having to testify in court, which can be
emotionally traumatic.

 Certainty of outcome: Plea bargaining can provide a more certain outcome for both
the prosecution and the defense, as both sides have a clear understanding of the
potential sentence the defendant will receive if they plead guilty.

NEGATIVES OF PLEA BARGAINING

  Injustice: Plea bargaining can result in defendants pleading guilty to crimes they did
not commit, or to more serious crimes than they actually committed, in order to avoid
harsher sentences.

 Loss of due process: Plea bargaining can also lead to defendants being pressured
into pleading guilty, without fully understanding the implications of their plea or
their right to a trial.

 Lack of accountability: Plea bargaining can allow offenders to avoid taking

responsibility for their actions, as they are not required to go through a trial and be
held accountable for their crimes.

 Unfairness: Plea bargaining can be used as a tool of discrimination, where the poor,
the uneducated and the marginalized are coerced into pleading guilty to lesser
charges, while the rich and the powerful are able to fight their cases in court and
secure acquittals.

 Lack of Restitution: Plea bargaining does not ensure that the accused compensates
the victim for the harm caused.

SUGGESTIONS
1. Increase awareness and education about the Plea Bargaining Act among
legal professionals and the general public.

2. The introduction of safeguards to ensure that plea bargaining is not misused,

such as requiring the judge's approval for all plea bargaining agreements.

3. The creation of a system for monitoring and evaluating the use of plea
bargaining, to ensure that it is being used appropriately and effectively.

4. The inclusion of more serious crimes to the ambit of plea bargaining, like white
collar crimes, and also that the guilty should accept the crime and compensate the
aggrieved party.

CONCLUSION

The inclusion of Chapter XXI-A of the Code has been introduced rather cautiously by our
law makers. They have limited the applicability to a large extent and also restricted the
scope of plea bargaining. It should be understood that when a concept is being
implemented into a legal system, it should be done in a manner, foreseeing the hindrances
that may be faced at the experimental stage. The provisions as such don’t show any tendency
of reducing case load. If citizens are to be encouraged to use the alternative remedy of plea
bargaining then there is an urgency to bring in more clarity and predictability in the
provisions.

It is agreed that there should be a balance between a rampant use of this remedy and the
possibilities that plea bargaining offers in order for it to be an effective and efficient
alternative remedy. But, we are unable to appreciate plea bargaining to the extent it
deserves to be appreciated because of the extremely cautious approach in restricting its
scope. It cannot be denied that the Amendment is a sincere attempt at resolving the stated
issues but it can be better appreciated only if the reins are loosened a little more.

THANK YOU