By Yeoh Jean Ann, Alastair Simon Chetty, Jolin Chen and Toh Ming Min.
In his speech at the Criminal Law Conference 2014, Minister for Law, Mr. K. Shanmugam, stated that his ministry is working on formalising a framework of negotiations between Prosecution and Defence to encourage early case resolution. Mr. Shanmugam described this as ‘plea bargaining’ in plain language, and highlighted the benefits of formalising such a system: transparency in the pre-trial litigation process, better-informed accused persons, and the optimisation of resources.
In anticipation of this formalised framework, this article will examine the rationale behind plea bargaining in criminal justice systems, and its role in Singapore’s legal context. It will also explore the merits and demerits of the American plea bargaining system, discuss the inherent plea bargaining element in the current Singaporean system, and finally, analyse how this vision of a formalised system can work to balance striving towards judicial efficiency with the all-important notions of fairness and justice.
Roles of Plea Bargaining in Criminal Justice Systems
Plea Bargaining in Singapore
The central policy tension that surrounds the issue of plea bargaining is ensuring that judicial efficiency does not come at the cost of arriving at a fair and just outcome.
The courts in Singapore have recognised these competing policy considerations. Former Chief Justice Yong Pung How took the view that plea bargaining secures a lighter sentence for the accused and, at the same time, ensures that less of the court’s time and resources are wasted: PP v Knight Glenn Jeyasingam. Conversely, in direct response to Knight Glenn, former Chief Justice Chan Sek Keong emphasised that the goal to save judicial time must nevertheless not supersede the public interest that offenders should be convicted and punished for their offences: Law Society of Singapore v Tan Guat Neo Phyllis.
Apart fom these policy considerations, another real concern is that of preventing “cracked” trials, where accused persons come on for trial only to plead guilty or withdraw their cases. In January 2010, 43% of the 102 cases fixed for trial were “cracked”. Such a situation results in the waste of trial dates for other cases waiting to be tried. In light of this situation, plea bargaining becomes a plausible mechanism that the courts can employ in a bid to curb this problem.
Plea Bargaining in America
The conservation of judicial resources is prioritised in America, given that the legal landscape is characterized by litigiousness. Undoubtedly, plea bargaining plays a major role in the American criminal justice system. An influx of offenders going to trial can easily flood the criminal justice system and result in judicial inefficiency.
In American plea bargaining, the accused is faced with a charge at arraignment; this is typically the maximum charge or punishment that the accused will be held to if he or she goes to trial.  The process begins when the prosecution or the accused makes an offer of plea; the prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge, or to the original charge with less than the maximum sentence. When both parties accept the agreement, negotiations will begin. Both the prosecution and the defence can negotiate on issues of fact, the charges or the sentence – these are known as fact-bargaining, charge-bargaining and sentence-bargaining respectively.
Plea offers are made at the prosecutor’s own discretion, and this power is largely unreviewable by judges. The prosecutor may even decide not to offer any concession in exchange for a guilty plea. This leaves the defence counsel in a difficult position, where he has to evaluate the risks of trial on his own. In a scenario where the prosecution will not offer any leniency in exchange for a guilty plea, the defence counsel will usually encourage the accused to plead guilty outside of the plea agreement.
The vast discretion enjoyed by the prosecution makes the American plea bargaining process an intriguing one. Judges have little to do with the process, and the negotiations are kept private until they are concluded. Only then will the judge step in to approve the plea agreement and deliver the sentence. The judge rarely rebuts the guilty plea, and rarely imposes a higher sentence than the one agreed in the plea agreement.
Dangers of the American Plea Bargaining System
As we have already noted, plea bargaining plays an essential role in the American Justice System, and has undoubtedly helped to conserve judicial resources in the United States. In 2010, 91% of felons charged in U.S. district court were disposed by guilty plea, and plea bargains no doubt account for a significant portion of this statistic. However, notwithstanding the conservation of judicial resources that plea bargaining brings about, there are inherent dangers that come with such a system.
It has been suggested that defendants – even those with strong cases and good chances of acquittal at trial – are choosing to plead guilty so as to avoid sentencing risks they would otherwise face if they lose at trial. Many defendants, therefore, unsurprisingly plead guilty in response to “an offer that cannot be refused”.
While encouraging cooperation from defendants is one objective of plea bargaining, a cloud of artificiality can easily loom over this mechanism when prosecutorial powers are exploited to the extent that plea bargaining becomes a coercive tactic to extract pleas of guilt.
This danger is particularly pronounced when prosecutors essentially offer defendants a Hobson’s choice: plead guilty and get a lighter sentence, or claim trial and face the possibility of a drastically harsher sentence. The threat of higher sentences undeniably places enormous pressure on defendants to plead guilty. In 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months). This has led to the criticism that plea bargaining is based on a culture of “extortionate relationships”, which favours economic, cost-benefit decisions over examining the actual culpability of the accused.
In essence, although plea bargaining is not inherently iniquitous, it nevertheless avails prosecutors to exercise their prosecutorial discretion unreasonably, and the potential discrepancies in sentencing outcomes can infringe on the accused’s rights.
Singapore’s Current Position on Plea Bargaining
The American plea bargaining process is vastly different from that of Singapore’s. Thus far, the issue of plea bargaining has not been expressly or formally decided upon in Singapore’s legal landscape. Instead, Singapore’s early case resolution initiative comes in the form of the recent Criminal Case Resolution (CCR) framework.
Criminal Case Resolution (CCR) Programme
As a means to tackle the issue of “cracked” trials, the CCR programme was first piloted by the Subordinate Courts in end-2009 and fully implemented with effect from October 2011 by way of Registrar’s Circular No 4 of 2011. It aims to provide a neutral forum for parties to explore the possibility of early resolution of criminal cases. Driven on a purely voluntary basis where both the defence and prosecution must be in agreement to the process, CCR is generally considered only for cases where the accused is represented by counsel, and has a reasonable prospect of early resolution. Even if the CCR fails, the process would still assist parties in narrowing down the material triable issues and enable the trial to proceed in a more focused and efficient manner.
In general, a case would already have gone through the Criminal Case Management Scheme (CCMS) between the Attorney-General’s Chambers and defence counsel, and may be referred for CCR if it remained unresolved after CCMS.
A senior and experienced District Judge facilitates each CCR session. His role is more facilitative than evaluative, and he will not give an indicative assessment of the merits of the case though he may comment on specific aspects of evidence and possible legal issues. Where the case remains unresolved, any notes by the CCR Judge will not be included in the case file and will not be accessible to the Trial Judge. The CCR Judge will also not be assigned to hear the case as Trial Judge in order to ensure that the matter is not prejudged.
The programme has seen some success. In March 2012, a total of 119 cases had gone through the CCR programme, with 75 cases having been resolved through it since the pilot in 2009. As a result, a total of 139 hearing days had been saved.
The Inherent Element of Plea Bargaining in CCR
The issue of plea bargaining is not extensively explored in the CCR framework. Nevertheless, the CCR is very much akin to a bargaining process between the defence and prosecution that is facilitated by the CCR Judge who acts as a neutral mediator. In the event that the accused decides to plead guilty, the CCR Judge may, with the consent of the parties, proceed to take the plea and pass the sentence. Alternatively, the plea may be dealt with by another Judge.
The negotiations and discussions that happen during the forum will undoubtedly involve the examination of the merits of a guilty plea. Therein lies the issue of plea bargaining and its potentially formalised place in Singapore’s legal landscape.
|“The central policy tension that surrounds the issue of plea bargaining is ensuring that judicial efficiency does not come at the cost of arriving at a fair and just outcome. ”|
Moving Ahead: A “Formalised Framework of Negotiations”
As stated earlier, the Ministry of Law has been working on a formalised framework of plea bargaining negotiations. This is one of the key initiatives that the Ministry is working toward as part of their vision to build ‘A Trusted Legal System; A Trusted Singapore’, which envisages the law being implemented objectively, consistently, and transparently. Minister for Law, Mr. K Shanmugam, has highlighted that formalising plea bargaining is important to promote the “expeditious fair and sensible resolution of a case”. A tension is seen again between the practical need for efficiency and the desire for the accused to have a fair trial and receive an appropriate sentence. Here, we anticipate how some elements of such a formalised plea bargaining framework may be implemented.
- Statutory guidelines
The Minister for Law has indicated that this formalized framework will likely be incorporated in the Criminal Procedure Code. The framework should involve guidelines as to the exact procedure and workings of the plea bargaining process. These will promote transparency, clarity and equity. In such a way, decisions cannot be made arbitrarily, and the traditional “under-the-table” nature of plea bargains with its more ambiguous shady character will be replaced by clarity and transparency. When the process is made clear with statutory guidelines, the accused also benefits as he can make a more well-informed decision.
- Restricting the ambit of plea bargaining
There may be a need to restrict the ambit of plea bargaining such that certain offences are not covered by this provision. Such a need arises due to concerns that plea bargaining dilutes retributivist principles since the ‘bargained’ punishment sometimes ends up lower than the accused’s moral culpability. Therefore plea bargaining may result in punishments that are not commensurate with the defendant’s culpability. Such a result would be particularly abhorrent in especially cruel or brutal cases that affect the vulnerable in society.
Secondly, it is possible that where there is a possibility of being sentenced to death, defendants are “more likely to plead guilty to their original charge, yet no more likely to plead guilty in general — suggesting that the threat of capital punishment encourages defendants to accept deals that they otherwise would have rejected.” Thus there is a very real concern that defendants facing a death sentence may decide not to claim trial out of fear of receiving a worse punishment, which makes it easier for the prosecution to secure a guilty plea. It has also been suggested that the death penalty is a major tool available to the prosecutor and that the prosecutors can use it as leverage to coerce or induce a defendant to forgo their right to trial. Restricting plea bargaining from this area would thus go towards protecting the accused as well.
Such is the case in the Criminal Law (Amendment) Act, 2005 in India, which amended the Indian Code of Criminal Procedure. A newly inserted chapter titled “Plea Bargaining” includes guidelines for mutually satisfactory disposition of cases by means of plea bargaining. S265A(1)(a) provides that plea bargaining does not apply to “offences for which the 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 S265A(1)(b) provides that plea bargaining does not apply where the “offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.”
Adopting the substantive points from the Indian Code of Criminal Procedure, we too could have some form of boundary to the application of plea bargaining as necessary. We could restrict the application of these provisions to cases where the maximum sentence is life imprisonment or the death sentence, and to cases that are excessively morally reprehensible such as rape and sexual offences involving minors. In such cases, the need for justice and a fair punitive outcome far outweigh the benefits of expedient case resolution.
- Making records available
The sessions should be recorded and included in the case file after the trial has ended. The records could perhaps be made available to a restricted group of people such as the legal fraternity. Another issue is whether these records should be admissible as evidence during trial, or whether there should be a plea negotiation privilege.
The availability of records to people beyond the judiciary will ensure greater transparency as the participants and facilitators of the plea bargaining system can be held accountable, and third parties can use these records to understand the rationale behind the failure or success of their plea bargaining attempts. For instance, the Sakharam Bandekar case in Mumbai, India, saw the first accused requesting lesser punishment in return for his confession through plea bargaining. The Indian Central Bureau of Investigation (“CBI”) rejected his plea, on the grounds that the accused “[faced] serious corruption charges and plea bargaining should not be allowed in such cases.” The CBI also said that an offence like “[corruption] is a serious disease like cancer. It is so severe that it maligns the quality of the country, leading to disastrous consequences. Plea bargaining may please everyone except the distant victims and the silent society.” Availability of records will ensure that accused persons with a charge of a similar nature will not be unfairly entitled to a desirable plea bargain, while also improving accountability to society by ensuring that plea bargaining will only be used when justifiable. In essence, records will serve as a check on the plea bargaining system.
We acknowledge that confidentiality issues may restrict the availability of these records to the public, and suggest that as a compromise, these records could be made available to a limited class of persons, or made available subject to the discretion of the court. Such accessibility of records and its resultant transparency is of utmost importance. When the Ministry was just beginning to implement a formal plea bargaining system, Sundaresh Menon CJ, as the then Attorney General, stressed the importance of fairness, visibility and transparency. Openness would ensure the protection of the accused and ultimately the end goal was to build up public confidence in the administration of criminal justice. These considerations are still relevant today and are echoed by the ministry’s current vision for an open, honest legal system.
Another issue is whether these records should be admissible as evidence in Court. As to whether plea negotiations should be privileged, the law in Singapore has been clarified by Phyllis Tan where former Chief Justice Chan Sek Keong overruled the holding in Knight Glenn which created such a privilege. In Knight Glenn, the former Chief Justice Yong Pung How held that on a purposive interpretation of S23 of the Evidence Act, representations made in plea bargaining were privileged and inadmissible in evidence. Chan CJ rightly disagreed with this, holding that S23 should not be extended to create a plea negotiation privilege since its purpose is to encourage settlements in civil cases and not in criminal cases.
In an article that pre-dated Phyllis Tan, Professor Michael Hor similarly expounded on the fundamental differences between privilege in civil and criminal cases. The private nature of civil cases where society is for the most part unaffected is unlike any kind of ‘settlement’ in criminal proceedings. In criminal law where there is a “very public dimension – the moral condemnation of the offender commensurate with fault”, plea bargaining should be regarded with care. Hence in criminal cases, where the welfare of society at large is at stake, the sanctity of the fact-finding process is important and it is arguable that privileges should not be allowed to easily disturb this process. There is, however, much more to be said about a plea negotiation privilege that is not within the ambit of this article; and we will assert nothing more than that one key purpose of both accessibility and admissibility of these plea negotiation records lies in promoting the transparency of the formalised system.
- The facilitative role of the judge
In the current CCR model, a judge facilitates the negotiations between the defence and prosecution. We believe that this feature should be retained because the facilitative Judge is an important element of formalised plea bargaining. The Hobson’s choice often observed in American plea bargaining will be less likely to occur in such a situation where an experienced Judge facilitates the Prosecution’s decisions. This protects the accused from prosecutorial pressure to plead guilty.
- Safeguards to protect the accused person
A neutral party such as a court official or mediator should have an opportunity to speak to the accused privately, without either the prosecution or defence lawyers present, in order to ascertain if he has had the freedom to choose between pleading guilty and pleading not guilty without any operative pressure. This suggestion also echoes the 2005 amendments to the Indian Code of Criminal Procedure. In S265B(4), the court would examine the accused in camera to satisfy itself that the accused had filed the plea bargain application voluntarily. We agree that this provision is a sound safeguard. It not only minimizes any potential of coercion or involuntariness that might arise during the plea bargain process, but also enables the effective ascertainment of the accused’s exercise of free will.
The presence of the facilitating judge would naturally be a safeguard against incompetent legal preparation, ensuring adequate legal representation on the part of both prosecution and defense, ameliorating the concerns in other jurisdictions as regards competent counsel during the plea bargaining process. Importantly, plea bargaining does not eliminate the need for the professional adversarial process – for example, a defense counsel would hardly be able to arrive at an equitable plea bargain if they were unaware of what sentence their client would likely receive if the case proceeded to trial. In this regard, plea bargaining merely shifts the focus and expression of the adversarial process, and the existence of the facilitating judge ensuring competent legal preparation and representation of both prosecutor and defence is necessary for a fair and efficient plea bargaining system. Where an accused is unrepresented, this safeguard is all the more important in assessing that the accused was not coerced into making an unfair bargain.
It is crucial to our criminal justice system that we ascertain that the accused indeed has the freedom to choose to plead guilty. Otherwise, the pressure to plead guilty could lead to wrongful convictions. When he was previously Judge of Appeal, current Attorney-General V K Rajah, observed that “pressure on an accused to plead guilty may come from a number of sources: the court, defence counsel or even other sources.”: Yunani bin Abdul Hamid v Public Prosecutor. He held that “there would be a serious injustice if the pressure faced by an offender to plead guilty are such that the offender did not genuinely have the freedom to choose between pleading guilty and pleading not guilty.” This was in the context of granting the accused a criminal revision. Therefore, before even getting to the stage of a wrongful conviction and a criminal revision, the relevant safeguards should be put in place such as to ensure that the accused is not pressured into pleading guilty.
The formalisation of plea bargaining and the resultant transparency ensures that this provision will likely not be abused as checks can be put in place to prevent prosecutorial powers from being used in a coercive fashion. In Yunani, it was observed that “the trauma that the initiation of a prosecution will cause to an accused and those close to him is palpably real and often severe”, the concern being in relation to those who may be innocent. Therefore formalised plea bargaining will further decrease the chances of wrongful convictions within our criminal justice system.
Despite the potential dangers of plea bargaining as seen in the American system, we are optimistic about the role that plea bargaining can play in Singapore because of the inherent safeguards within a formalised scheme. We look forward to seeing how the relevant authorities will work to formalise plea bargaining so as to aid the court in its pursuit of efficiency whilst upholding the fundamental value of fairness.
Yeoh Jean Ann, Alastair Simon Chetty, Jolin Chen and Toh Ming Min are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).
 Speech by Minister of Foreign Affairs and Law, K Shanmugam, at the Criminal Law Conference 2014 (16 January 2014)
  SGHC 91 (“Knight Glenn”) at .
  SGHC 207 (“Phyllis Tan”) at .
 Chan Sek Keong, “Access to Quality Justice For All”, keynote address at the Subordinate Courts Workplan 2010 (26 February 2010), at .
 Statement by Judiciary Chairman Bob Goodlatte, “Excessive Litigation’s Impact on America’s Global Competitiveness”, (March 2013) online: United States House of Representatives, Committee on the Judiciary.<http://judiciary.house.gov/_files/news/2013/Statement%20Constitution%2003052013.html>
 US, Bureau of Justice Assistance; U.S. Department of Justice, “Plea and Charge Bargaining: Research Summary”, (2011) at pg 1.
 Human Rights Watch, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty” (2013) at pg 3.
 US, Department of Justice; Bureau of Justice Statistics, Federal Justice Statistics, 2010. (2013) at pg 19.
 Supra note 9 at pg 82.
 Supra note 9 at pg 2.
 The Judicial Role in Criminal Proceedings. (Sean Doran & John Jackson eds) (Oxford: Hart Publishing, 2000), cited in See Kee Oon, “Criminal Case Resolution” (2013) Asian JM 76 at para 12.
Subordinate Courts of Singapore, “SubCourts news” (June 2012) online: The State Courts of Singapore <https://app.subcourts.gov.sg/Data/Files/File/InforBooklet_Brochures/Newsletter_2012Jun.pdf>.
 See Kee Oon, “Criminal Case Resolution” (2013) Asian JM 76 at para 17.
 Supra note 15 at pg 9.
Singapore Parliamentary Debates, President’s Address (Ministry of Law), Vol 92 (16 May 2014).
 Supra note 1.
 Supra note 17
 Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital Punishment. Am Law Econ Rev, Vol 8(1) (Spring 2006) at 140
 Susan Ehrhard, Plea Bargaining and the Death Penalty: An Exploratory Study, The Justice System Journal, Vol. 29, Number 3 (2008)
 Muriel Avita Fernandes, Law and Social Change: Plea Bargaining; Its Relevance In India, Govind Ramnath Kare College of Law Library: online < http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-LSC-Muriel.pdf>
 Mr Sundaresh Menon on formalising plea bargaining, see Opening of the Legal Year 2012 Speech (6 January 2012).
 Supra note 17.
 Gregory J. Hobbs Jr., Judicial Supervision over California Plea Bargaining: Regulating the Trade, 59 Cal. L. Rev. 962 (1971) at 989.
 Ibid at 990.
A policy concern pointed out by Ms Sylvia Lim, see Singapore Parliamentary Debates, Official Report, Vol 92 (28 May 2014).
  SGHC 58 (“Yunani”).
 Ibid at .