New Zealand Law Commission
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225 CHARGE NEGOTIATION is the informal process whereby the
prosecution and the defence reach an agreement on charges to which the defendant will plead guilty. In practice, this occurs once a decision has been made to bring charges, or after charges have been laid, but before trial. In return for a plea of guilty, the prosecutor may be willing to reduce the number of charges faced by the defendant, charge him or her with a less serious offence, or amend the summary of facts on which the charge is based. If the facts of the case permit selection from a wide range of charges, there may be room for negotiation of the charge or charges. In some jurisdictions sentence negotiation occurs; the prosecutor and defence counsel agree on the appropriate sentence in return for a guilty plea, although the judge retains a discretion to reject the agreement. In New Zealand sentence negotiation is expressly prohibited.
226 The Discussion Paper noted that formal charge negotiation is not encouraged in New Zealand, but acknowledged that it does occur. We also accepted that charge negotiation can be an effective mechanism to further the prosecution system’s objectives when conducted under strict conditions. The Discussion Paper posed the question of whether the practice of charge negotiation should continue and assessed its utility in relation to the objectives of the prosecution system. There are dangers with any system of charge negotiation which we identified thus:
• The denial of defendants’ rights of access to the judicial process. Charge negotiation if conducted improperly might create pressures on defendants to plead guilty in the hope that their sentence will be reduced. Innocent defendants might plead guilty to a lesser charge rather than run the risk of conviction at trial.
• The defendant may not know all the facts when pleading guilty in return for some (apparent) concession by the prosecution. A lack of information might result in guilty pleas that are not supported by the evidence available to the prosecution.
• Victims are not consulted during charge negotiation and may feel betrayed, even if objectively the prosecutor has achieved all that could have been achieved by a trial.
• An informal and unregulated system of charge negotiation may undermine consistency, transparency and accountability. Too much unguided discretion creates the opportunity for abuse by prosecutors. Because charge negotiation is generally not at present a public or open practice, there is little opportunity for independent review and comment upon such discretion.
Despite the potential drawbacks of charge negotiation, we concluded that if regulated properly charge negotiation can achieve significant advantages:
• Costs will be reduced by avoiding unnecessary trials.
• The chances of securing the conviction and punishment of the offender without the uncertainty of a trial will be increased.
• Victims will be spared the stress of testifying.
• Greater avenues for restorative justice and rehabilitation of offenders may be created.
227 To implement appropriate regulation the Discussion Paper proposed that:
• the Guidelines regulating charge negotiation should be expanded to cover adequately issues of fairness, consistency, transparency and accountability; and
• the New Zealand Law Society Rules of Professional Conduct for Barristers and Solicitors should be amended to cover charge negotiation.
There are two ways in which charge negotiation is likely to occur in practice:
• informally and privately between prosecutor and counsel; or
• in the case of summary matters, in the course of, or as part of, the preparation for District Court status hearings.
We now set out our final recommendations, dealing with each in turn.
228 The Commission’s preliminary view did not favour charge negotiation being regulated by legislation for two principal reasons:
• significant abuse of charge negotiation has not come to light in New Zealand; and
• status hearings had recently introduced sentence indication as a standard part of judicial practice in the District Court. It is desirable to monitor development of this practice with a view to determining whether comprehensive regulation of charge negotiation might be necessary in the future and, if so, in what form.
229 The general view expressed in submissions to the Commission was that charge negotiation did not need to be regulated by legislation, but that the Guidelines should be reviewed. The Crown Law Office was almost alone in suggesting that legislation was desirable to encourage openness and consistency of approach. In contrast, the New Zealand Law Society Criminal Law Committee considered that charge negotiation should neither be formalised nor codified. The Criminal Bar Association and the police favoured expanding the Guidelines to achieve a recognised and transparent form of charge negotiation, compared with the rather informal ad hoc current process. However, the police submission suggested that regulation may be more appropriately achieved with a judicial practice direction rather than through the Guidelines.
230 The Commission does not recommend the use of legislation to regulate charge negotiation as there is no demonstrable need for it. However, that is not to say that clear principles should not be articulated. In our view, an examination of the Guidelines in order to articulate the relevant principles is an effective method of addressing our concerns with the present, informal, system
231 The Discussion Paper suggested that in some respects the Guidelines do not regulate charge negotiation in sufficient depth. In particular, the Commission suggested that two aspects of the Guidelines may be unduly restrictive and hamper the attainment of early guilty pleas in appropriate cases:
• the present restriction on a prosecutor supporting any particular sentencing option might unnecessarily inhibit the willingness of defendants to plead guilty and could also prevent the views of victims being taken into account;
• the restriction on laying a lesser charge than the evidence supports may at times contradict the ability not to charge at all if the public interest so demands.
No sentence negotiation – sentence support instead
232 We consider that there may be room in the Guidelines as presently worded to enable a prosecutor to make a range of responses to sentencing representations made on behalf of the defendant. However, we also consider that charge negotiations should not include express agreement as to a particular sentence. This reflects existing practice. The prosecutor cannot presently guarantee that the sentence agreed upon would be that ultimately imposed by the sentencing judge. Nor should it be so. Judicial oversight and responsibility for the ultimate sentence should not be diminished. The objection is to agreement as to the particular sentence. Prosecutors have an obligation to tell the court what they consider to be the appropriate sentencing range. That is quite proper. Commissioners have experienced police prosecutors supporting a particular sentence from time to time. It is the Commission’s view that, other than in the most general terms, this should not happen.
233 On balance, the Commission prefers the status quo for two reasons. The first is that there is no evidence that the existing system is creating difficulties. Indeed, by not opposing a sentencing option, a prosecutor can already effectively signal a position. The second is that obvious problems would be created if pleas of guilty were entered partly in reliance on a prosecutor’s undertaking to support a sentencing option that was not subsequently adopted by the court.
No prosecution discretion to lay lesser charges than the evidence supports
234 In the Discussion Paper we noted that the prohibition in the Guidelines on laying lesser charges than the evidence supports contradicts the power not to charge at all if the public interest so demands: if the public interest sometimes requires no
prosecution at all then it may also justify a lesser charge than the overall evidence supports. Cases may occur when this course of action is reasonable.
235 However, the Commission considers prosecutors should not have the power to lay lesser charges than the evidence supports because:
• no matter how guidelines might seek to regulate such a discretion there is a potential for inconsistency, bias and prejudice;
• administrative expediency could reduce the levels of charging;
• it is the role of the court, rather than the prosecution, to decide whether proven facts warrant a particular sanction. It is not for the prosecution to attempt to limit the ability of the court to respond to the facts of a case.
Prosecutors should not initiate charge negotiation
236 The Guidelines currently prohibit prosecutors initiating charge negotiations in indictable matters. This is to avoid the suggestion that Crown Solicitors overcharge to encourage negotiation. We support the prohibition.
237 With regard to summary cases, we understand that the police do initiate charge negotiations. It might be argued that it is acceptable for police to do this because:
• summary charges are less serious than indictable charges;
• in the summary jurisdiction many more defendants are unrepresented, so there is no defence counsel to initiate charge negotiation;
• the sheer bulk of cases going through the summary jurisdiction makes it expedient for the police to try to get through them.
238 These reasons are, however, simply matters of expediency. The difference between summary and indictable offences is simply one of degree; defendants must be entitled to the same basic protections in summary matters as in indictable matters. If the police were permitted to initiate charge negotiations the possibility for abuse, or at least the appearance of abuse, and particularly the possibility of overcharging to facilitate charge negotiation, is obvious. It is recognised that at status hearings police prosecutors must, as a regrettable necessity, hold discussions with unrepresented defendants. An element of charge negotiation is therefore an inevitable possibility and might have to be raised by the prosecutor so that the unrepresented defendant understands his or her options. The Commission recognises that this will happen but reiterates the danger inherent in police-initiated charge negotiations. Apart from this exception, if there is a practice of police initiating charge negotiations, it should be stopped.
239 Currently, the duty Solicitor scheme does not extend to status hearings, so that many defendants do not have legal representation at this stage. We recommend that either duty Solicitors should be routinely allowed to attend status hearings, or else the Registrar of the Court should be empowered to make a limited grant of legal aid for status hearings.
Conclusion: the need for a principled practice of charge negotiation
240 Overall, the Commission sees real value in a principled practice of charge negotiation. We agree with a 1995 Australian Institute of Judicial Administration recommendation that:
The essential criterion in any plea agreement must be proof of the accused’s criminal conduct. Prosecutors must be prepared to identify weak cases early and reduce charges or withdraw prosecution entirely. At the same time, prosecutors must be prepared to try cases where there is a reasonable prospect of conviction, rather than to accept a plea to an inappropriately reduced charge.
241 However, it remains the Commission’s view that the Guidelines do not regulate charge negotiation in sufficient depth. We repeat the recommendation made in the Discussion Paper that the following features need to be addressed by the Solicitor-General, in consultation with the New Zealand Law Society, the criminal bar, the police, and other prosecuting agencies:
• All public prosecution agencies should be bound by charge negotiation guidelines. The Guidelines should be the benchmark for all prosecution conduct.
• Prosecutors should endeavour to ensure, in the course of negotiations, that defendants in similar circumstances receive equal treatment.
• Charge negotiations are not relevant to the sentencing judge’s duty and details should not be mentioned in open court, unless raised by the defence.
• To ensure transparency and accountability in the exercise of charge negotiation discretions, prosecutors should be required to record the outcome of charge negotiations on the file.
• To ensure that the human rights and the dignity of defendants are respected, there should be:
– an express prohibition on prosecutors initially laying more charges or more serious charges than the circumstances warrant so as to obtain leverage in charge negotiations;
– an express prohibition on prosecutors making any offer, threat or promise, the fulfilment of which is not a function of his or her office;
– an express prohibition on misrepresentation;
– a requirement that prosecutors offer defendants entering charge negotiations a reasonable opportunity to seek legal advice and to have their counsel present;
– guidance should be given to prosecutors regarding their obligations when entering charge negotiations with an unrepresented defendant. When defendants are represented, prosecutors should not enter charge negotiations except when counsel is present or a written waiver of counsel is given;
– where reasonably practicable, an entitlement for defendants to be present at charge negotiations concerning them, should they so wish (based on an informed decision on advice from counsel); and
• To ensure that the interests of victims are appropriately considered in the process, prosecutors should be required:
– to take into account the victim’s views and interests (as far as they are appropriate) in considering whether and on what terms charge negotiations should be conducted; and
– without compromising the confidentiality obligation to a defendant or the safety of any person, to inform the victim of the outcome of any charge negotiations made and the justification for those negotiations.
242 The Discussion Paper asked whether the New Zealand Law Society Rules of Professional Conduct should be expanded to provide defence counsel with guidance on their responsibilities when entering charge negotiations on behalf of a client. Presently there are no defence guidelines on the conduct of charge negotiations. The submissions contained some support for this, especially if our proposals on prosecution guidelines and duties are implemented.
243 We think there should be guidance for defence counsel undertaking sentence negotiation. In practice, such guidance should be developed by the New Zealand Law Society and the criminal bar. This could either be in the Rules of Professional Conduct or in a litigation good practice manual. For example, the rules could indicate that discussions regarding the possibility of resolving criminal charges are proper, in some circumstances, and should always be considered. In some circumstances such discussions may be a positive duty for defence counsel.
244 The second way in which charge negotiation is likely to arise in summary prosecutions is during the process of preparing for, or during, a status hearing.
245 A pilot ‘status hearings’ scheme for defended summary prosecutions operated in the Auckland District Court in 1995 and 1996. The scheme now operates in district courts throughout the country. Defendants who plead not guilty are referred to a status hearing and then proceed to a defended hearing. Status hearings aim to assist in efficient disposition of cases and to promote the entry of proper pleas at the first opportunity. An evaluation was done of the first 12 months of operation of the scheme at the Auckland District Court. The evaluation showed that sentence indications were given in less than a quarter of cases, and in most of these cases the defendant pleaded guilty.
246 The conduct of status hearings varies from district to district, probably because there are no national guidelines. For example, in Hamilton domestic violence matters do not go to status hearings but directly to a defended hearing. In other areas domestic violence matters do go to status hearings. The Status Hearings Report, Auckland District, and Porirua District Court Status Hearings Practice Note (which also applies to Wellington) contain guidelines but they do not apply to the whole country. They are unpublished.
247 At the status hearing, judges sometimes discuss with the prosecutor whether the charge that has been laid is appropriate given the summary of facts, and judges may discuss with the defendant or their counsel the basis of the defence. Judges may also indicate the likely type of sentence (imprisonment, periodic detention, community service). This indication should be given only if requested, but practice does vary and there is evidence that some judges proffer an indication of sentence whether it is requested or not. Counsel can of course engage in charge negotiation with the prosecutor before the day of the status hearing but it appears that most do not approach the prosecution until the status hearing itself.
248 The Commission considers the goals of status hearings in the summary jurisdiction to be administratively expedient. However, we have particular concerns in relation to the following issues:
• unrepresented defendants;
• whether victims’ interests are adequately met;
• the use of sentence indication;
• charge negotiation; and
• the proper role of judges – are they, in effect, involved in the decision to prosecute?
249 The Commission understands that from a defence perspective the desired outcome of all charge negotiations concerns sentencing. However, judicial involvement in such discussions, as occurs in status hearings, is problematic. The Court of Appeal in R v Reece & Ors strongly disapproved of what it termed:
the very unusual course of indicating a possible sentence ... in the absence of any settled guidelines covering plea bargaining involving a Judge. There is obvious scope for manipulation and erosion of public confidence in the administration of justice if this is seen to be done in the course of informal and unstructured discussions between counsel and the trial Judge.
250 There have also been some difficulties in practice; for example, in Pickering v Police a District Court conviction was set aside because the same judge conducted the status hearing and the defended trial. More recently, in R v Gemmell, the accused pleaded guilty to indictable offences in reliance on a sentence indication given by a District Court judge at a callover, but then received a sentence substantially in excess of that indication. The Court of Appeal set aside the convictions and remitted the matter back to the District Court to give the accused the opportunity to plead again. The Court of Appeal indicated its concern at the practice of judicial sentence indications:
In principle it seems inappropriate for matters of sentence to have any judicial consideration prior to conviction and without the aid of essential pre-sentence and victim impact reports. Any indication given in such circumstances must be so qualified as to be no real indication at all and certainly no reliable basis on which to plead.
251 In the recent case of R v Edwards, in which again the actual sentence considerably exceeded a sentence indication, the Court of Appeal confirmed that the principles expressed in Gemmell are of general application, and again expressed grave concern at the practice of sentence indications:
Although the District Court may regard sentencing indications as a useful means of keeping up with the volume of work, this appeal graphically illustrates the difficulties which can arise out of the sentence indication regime currently applying to indictable charges in the District Court. As this case demonstrates, a different Judge may have markedly different views as to the appropriate sentence to be imposed once he is in full possession of all the relevant material and has had the advantage of full submissions. Furthermore, the citation from the Judge’s remarks on sentencing shows that some Judges appear to regard an indicated sentence as no more than a “starting point” before consideration is given to the extent to which aggravating and mitigating factors should be taken into account. Others presumably regard a sentence indication as something which should not be departed from save in unusual circumstances; were it otherwise the indication would be more misleading than helpful. Notwithstanding the practical advantages there must be serious doubt about the wisdom of the Judges who are not fully informed of all relevant sentencing considerations involving themselves in a sentence indication process. That process is likely to be relied on by accused persons in determining their plea, and as this case illustrates, may do little to serve the interests of justice from any perspective.
Problems of this kind indicate the need for legislative intervention to prescribe the proper conduct of status hearings, and to ensure consistency throughout the country.
252 The Commission is concerned that, if judges become too actively involved in sentence indication and charge negotiation, status hearings could evolve into mechanisms of resource allocation rather than a means of effecting principled outcomes. There is a very real danger of the judge descending into the arena by taking an active role to secure a result (that is, to prevent a defended hearing). There is also a real risk that defendants might plead guilty as a result of judicial charge ‘negotiations’ for reasons of administrative convenience or because they are presented with ‘an offer they cannot refuse’. It is fundamental to the role of judges that they are independent and impartial. If judicial impartiality is undermined, then so too is the entire system of justice.
253 The Commission supports a regulated, ethical practice of charge negotiation. However, the majority of Commissioners does not believe that, at this stage, in the absence of a formally regulated process, sentence indication by judges should form a part of status hearing practice. One Commissioner dissents from that view. In that Commissioner’s opinion the need for status hearings as a means of coping with the workload of the District Court is so great, and sentence indication such an integral part of status hearings, that the practice must continue.
254 The Commission also notes suggestions that status hearings be extended to the indictable jurisdiction. In the Commission’s view this would constitute a major change to criminal procedure. In light of the above, the Commission recommends that the Government institute an evaluation of the practice and potential of status hearings in the summary and indictable jurisdictions. In the Commission’s view, if status hearings are to continue, they should be established and regulated by legislation. The Commission has invited the Minister of Justice to give it a reference to review status hearings and propose such legislation.