SAINT CHRISTOPHER AND NEVIS

No.         of 2024

Arrangement of Sections

Short title

Interpretation

Application

Declaration of certain existing rights

Plea negotiations

No obligation on State to enter into plea negotiations

Powers of Director of Public Prosecutions

Legal representation

Plea agreements

Form and filing of plea agreement with a represented person

Form and filing of plea agreement with unrepresented person

Listing matters for plea agreement hearing

Plea agreements at committal proceedings

Director of Public Prosecutions to prefer indictments

Victim impact statement

Restriction on the content of a victim impact statement

Duties of the prosecutor in respect of victim impact statements

Director of Public Prosecutions to notify Court of existence of plea agreement

Procedure at plea agreement hearing

Plea Agreement not binding on the Court

Cases to be heard by a different Judge where agreement is refused or withdrawn

Accused right to appeal rejection of plea agreement

Director of Public Prosecutions right to appeal rejection of plea agreement

Effect of accepting plea agreement

Accepted plea agreement to form part of record

Sentencing where plea agreement accepted

Post sentence negotiations and agreements

Review of sentence of convicted person

Power to reduce penalties for assistance rendered to the State

Withdrawal from agreement

Application by Prosecutor to set aside plea agreement

Admissibility of plea agreement, etc.

Sealing of records plea negotiations

Obligation for secrecy

Amendment of Schedule 

SCHEDULE

SAINT CHRISTOPHER AND NEVIS

No.         of 2024

A BILL to provide for plea negotiations and plea agreements between the accused and prosecutor in criminal cases and related matters.

BE IT ENACTED by the King’s Most Excellent Majesty, by and with the advice and consent of the National Assembly of Saint Christopher and Nevis, and by the authority of the same as follows:

Short title

This Act may be cited as the Plea Negotiations and Agreements Act, 2024.

Interpretation

In this Act,

“Court” includes the Magistrate’s Court;

“Director of Public Prosecutions” includes any attorney-at-law authorised in writing by the Director of Public Prosecutions to conduct plea negotiations and conclude plea agreements; 

“improper inducement” includes

the laying of a charge, or causing a charge to be laid without reasonable cause;

the coercion of an accused person or suspect to enter into plea discussion or conclude a plea agreement, including a threat
to lay a charge or cause a charge to be laid of the type described in paragraph (a); or

that any plea of not guilty entered into by the accused person will result, upon the accused person’s conviction, in the prosecutor asking for a sentence more severe than the sentence that is usually imposed upon an accused person who is convicted of a similar offence;

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

the offer or promise, the fulfilment of which is not the function of the Director of Public Prosecutions; or

an attempt to persuade the accused person or suspect to plead guilty notwithstanding the accused person’s or suspect’s denial;

“plea agreement” means an agreement made pursuant to section 9;

“plea negotiations” means negotiations conducted pursuant to section 5.

Application

This Act applies to plea negotiations for indictable offences only.

Declaration of certain existing rights

4. Nothing in this Act affects the right of an accused to plead guilty to a charge without entering plea negotiations or a plea agreement.

Plea negotiations

5. A plea negotiation may be held and a plea agreement concluded at any time before conviction, including, before charges are instituted.

No obligation on State to enter into plea negotiations

6.(1) There shall be no obligation on the State to enter into plea negotiations with any accused person.

(2) The Director of Public Prosecutions shall, at his sole discretion, determine whether he would engage into plea negotiations with an accused person or his attorney-at-law.

Powers of Director of Public Prosecutions

7. The powers of the Director of Public Prosecutions are to

withdraw or discontinue the original charge against the accused; or

accept the plea of the accused to a lesser offence, whether originally included or not, than that charged.

Legal representation

8.(1) Where an accused person is represented by an attorney-at-law, the Director of Public Prosecutions shall not initiate or engage in plea negotiations with an accused person in the absence of his attorney-at-law.

The Director of Public Prosecutions shall not initiate or engage in plea negotiations with an accused person who is not represented by an attorney-at-law unless the Director of Public Prosecutions informs him of
his right to be represented by an attorney-at-law during plea discussions;

his right to protection against self-incrimination;

his right to be presumed innocent; and

the right of the accused to seek a sentence indication from the Court of the maximum sentence that the Court may impose if the accused pleads guilty to an offence.

Where an accused person, after having been advised by the prosecutor of his rights under subsection (1), states that he desires to enter into negotiations and represent himself, Form 1 of the Schedule shall be signed by both parties in the presence of a Justice of the Peace and be filed with the Registrar.

A plea agreement which has been concluded between the prosecutor and the attorney-at-law for the accused person shall be in the form set out as Form 2 of the Schedule and where such agreement is concluded, the agreement shall be filed with the Registrar.

A plea agreement which has been concluded between the prosecutor and an unrepresented accused person shall be in the form set out as Form 6 of the Schedule and where such agreement is concluded it shall be signed by both parties in the presence of a Justice of the Peace and filed with the Registrar.

Plea agreements

9. Every plea agreement that is brought before a court shall be

in writing; and

signed by the Director of Public Prosecutions, the accused and his attorney-at-law as the case may be.

Form and filing of plea agreement with a represented person

10.(1) A plea agreement concluded between a prosecutor and the attorney-at-law for an accused person shall be in the form set out as Form 2 of the Schedule.

Where an accused person is before a Magistrate, the plea agreement shall be filed with the clerk, along with the following documents:
a statement by the accused person in the form set out as Form 3 of the Schedule;

a statement by the attorney-at-law for the accused person in the form set out as Form 4 of the Schedule;

if a court interpreter was used during plea negotiation, a certificate in the form set out as Form 5 of the Schedule, by the court interpreter as to the accuracy of the interpretation during the plea negotiation and the accuracy of the translation of the plea agreement;

victim impact statements, if any; and

the complaint or draft indictment in the case of committal proceedings.

Where an accused person is before the High Court, the plea agreement shall be filed with the Registrar of the Court, along with the documents referred to in subsection (2)(a) to (d) and the indictment.

Form and filing of plea agreement with unrepresented person

11.(1) A plea agreement concluded between a prosecutor and

an unrepresented accused person; or

an unrepresented suspect, shall be in the form set out as Form 6 of the Schedule and shall be signed by both parties in the presence of a Justice of the Peace.
Where an unrepresented accused person is before a magistrate, the plea agreement shall be filed with the clerk, along with the following documents:
a statement in the form set out as Form 3 of the Schedule, where applicable;

if a court interpreter was used during plea negotiation, a certificate in the form set out as Form 5 of the Schedule, by the court interpreter as to the accuracy of the interpretation during the plea negotiation and the accuracy of the translation of the plea agreement;

victim impact statements, if any; and

the complaint or draft indictment in the case of committal proceedings.

Where an unrepresented accused person is before the High Court, the plea agreement shall be filed with the Registrar of the Court, along with the documents referred to in subsection (2)(a) to (c) and the indictment.

Listing matters for plea agreement hearing

12.(1) Within 28 days of the date that a plea agreement is filed, the matter shall be listed for a plea agreement hearing.

(2) If a matter is not listed before the Court for a plea agreement hearing within the period required under subsection (1)

the prosecutor;

the attorney-at-law for the accused person; or

the accused person, may make an application either orally or in writing in the form set out as Form 7 in the Schedule to have the matter listed for a plea agreement hearing.

Plea agreements at committal proceedings

13.(1) If a plea agreement is filed at any time before an accused person is committed to stand trial in the High Court, the Magistrate shall

cease conduct of the committal proceedings, if proceedings have commenced;

transfer the matter to the High Court for a plea agreement hearing; and

within 14 days of transferring a matter under paragraph (b), forward the following documents to the High Court: (i) the documents filed under section 10(2) or 11(2);
witness statements, if any;

documentary exhibits; and

any other documents filed during the conduct of the committal proceedings.

Where a Magistrate transfers a matter under subsection (1)(b), the Magistrate may grant bail to the accused person under the Bail Act, Cap. 3.24.

Within 14 days of receiving the documents forwarded by a Magistrate under subsection (1)(c), the matter shall be listed for a plea agreement hearing before the Court.

Director of Public Prosecutions to prefer indictments

14. Notwithstanding any other law to the contrary, if a plea agreement is filed before the commencement or conclusion of committal proceedings, the Director of Public Prosecutions shall prefer an indictment and file the indictment with the Registrar within 14 days of the date that the matter is transferred under section 11(1)(b).

Victim impact statement

15.(1) Subject to section 16

before a plea bargain is concluded the Director of Public Prosecutions shall permit the complainant to make representations to him in writing and may take such representations into consideration in concluding the plea agreement;

where a plea agreement is concluded, the Director of Public Prosecutions shall, unless otherwise required by the compelling reasons in the interest of justice, as soon as is reasonably practicable, communicate with the complainant in respect of
the substance of and of reasons for the plea agreement; and

the entitlement of the complainant to be present when the Court considers the plea agreement.

Where the complainant had died or is incapacitated, the Director of Public Prosecutions shall communicate with a member of the victim’s immediate family in respect of the matters set out subsection (1).

Where the complainant is a child or a person labouring under a disability of the mind, he may be represented by
a parent or guardian; or

a probation officer, if a parent or guardian is not available.

Restriction on the content of a victim impact statement

16. A victim impact statement shall not include

a restatement of the facts of the offence;

criticisms about the accused person; or

the victim’s opinion about the type or severity of sentence to be imposed.

Duties of the prosecutor in respect of victim impact statements

17.(1) The prosecutor shall ensure that a victim impact statement complies with the requirements of section 16.

If a victim impact statement contains material that is not permitted under section 16, the prosecutor shall redact that material from the victim impact statement before it is filed with the Court.

A victim impact statement shall be filed with the Court at the time of the filing of the plea agreement.

After receiving the victim impact statement, the prosecutor shall serve the victim impact statement on the accused person or his attorney-at-law as soon as it is reasonably practicable to do so and in any event, before it is filed with the Court.

Director of Public Prosecutions to notify Court of existence of plea agreement

18.(1) The Director of Public Prosecutions shall, in open court, but in the absence of the jury

before the accused is required to plead; or

at any time after the arraignment, inform the Court of the existence of the plea agreement.

(2) The Court may, where circumstances require, question the accused in order to satisfy itself that the accused is aware of the existence of the agreement.

Procedure at plea agreement hearing

19.(1) A plea agreement hearing shall be held in open court unless, having taken all of the circumstances into consideration, the Court considers that the hearing should be held in camera.

At a plea agreement hearing, the prosecutor shall disclose the following information to the Court in the presence of the accused person and his attorney-at-law or in the presence of the accused person who has elected to represent himself under section 11
the substance of, and reasons for the plea agreement;

whether a previous plea agreement has been disclosed to a Court in connection with the same matter and the substance of that plea agreement, if any;

if no victim impact statement is filed, whether the victim was informed of his right to make a victim impact statement and of the matters mentioned in sections 15 and 16; or

if a victim impact statement is filed, whether the victim would like to read his victim impact statement in open court or have the statement read by the prosecutor or an officer of the Court.

Before accepting or rejecting a plea agreement, the Court shall make enquiries of the accused person in order to determine whether the accused person
understands the nature and substance of the plea agreement, including the recommended sentence;

received legal advice before signing the plea agreement;

understands the nature of the offence with which he is charged and to which he is pleading;

understands that this trial shall be conducted by a Judge and jury, where applicable;

is aware of his rights, including the right to:
not incriminate himself;

plead not guilty;

be presumed innocent;

have the State prove its case beyond a reasonable doubt;

be represented by an attorney-at-law at trial;

cross-examine witnesses; and

testify in his own defence or to remain silent;

understands that the Court is not obligated to accept the plea agreement; and

was offered an improper inducement to enter into plea negotiation or conclude a plea agreement.

If a victim impact statement is filed with the Court, the Court shall consider the views expressed in the victim impact statement before accepting or rejecting a plea agreement and the Court may accept or reject all or any part of a victim impact statement.

An accused person may, with leave of the Court, cross-examine the victim on the contents of his victim impact statement, to the extent that the Court allows.

Where a victim impact statement contains information that
is not permitted under section 16; or

in the discretion of the Court should not be included in a victim impact statement,

the Court may rule the information is inadmissible and direct that it be redacted from the victim impact statement.

Plea Agreement not binding on the Court

20.(1) The Court may reject a plea agreement entered into between the prosecutor and the accused person if the Court considers that it is in the interest of justice to do so.

Where the Court makes a determination that there was an improper inducement offered to the suspect or accused person, the Court shall reject the plea agreement.

Where a Judge rejects a plea agreement under subsection (1), the Judge shall
in open court, inform the accused person of his right to be tried again before another Judge;

within 7 days of the rejection of the plea agreement, provide written notification to the Director of Public Prosecutions and the accused person of the reasons for rejecting the plea agreement; and (c) list the matter for trial.

The rejection of a plea agreement by a Court shall not operate as a bar to      

(a) the conduct of any subsequent plea negotiation and plea agreement; and

(b) the acceptance of any subsequent plea agreement by the judge who rejected the initial plea agreement.

Cases to be heard by a different Judge where agreement is refused or withdrawn

21. Where the Court refuses to accept an agreement under section 20, or the accused withdraws from the agreement under section 30, and the case proceeds to trial, the matter shall be heard by any judge other than the judge who refused to accept the agreement or before whom an agreement is withdrawn.

Accused right to appeal rejection of plea agreement

22.(1) Subject to subsection (2), an accused person may appeal to the Court of Appeal against the Court’s rejection of a plea agreement.

(2) The accused person shall give notice of appeal in the form set out as Form 8 in the Schedule within 28 days of receiving written notification under section 20(3)(b) of the Court’s reasons for rejecting the plea agreement.

Director of Public Prosecutions right to appeal rejection of plea agreement

23.(1) The Director of Public Prosecutions may appeal to the Court of Appeal against the Court’s rejection of a plea agreement.

(2) The Director of Public Prosecutions shall give notice of appeal in the form set out as Form 9 in the Schedule within 28 days of receiving written notification under section 20(3)(b) of the Court’s reasons for rejecting the plea agreement.

Effect of accepting plea agreement

24. Where a plea agreement is accepted by a court, the accused shall be required to plead to the charge.

Accepted plea agreement to form part of record

25. Subject to section 26,

any written representation made by a complainant; and

the fact that a plea agreement has been accepted and the contents thereof, shall be entered on the record.

Sentencing where plea agreement accepted

26.(1) Where a court accepts a plea agreement, the court shall impose sentence in accordance with that plea agreement.

(2) Where the offence is punishable by life imprisonment, then notwithstanding any other provision to the contrary, the maximum sentence which may be imposed in relation to any such offence shall be 40 years.

Post sentence negotiations and agreements

27. A convicted person who is serving a sentence and wishes to assist the prosecutor may enter into post sentence negotiations and agreements with the view to a reduction in sentence or other benefit.

Review of sentence of convicted person

28.(1) A prosecutor may refer a sentence for review to the Court that entered the original sentence, if possible, if it is in the interest of justice to do so.

The Court may review a sentence under subsection (1) where
the convicted person received a reduced sentence on an undertaking to assist under the Act but knowingly failed to give any assistance in accordance with the agreement, or misled the prosecutor;

the convicted person received a reduced sentence under an agreement, and has undertaken in a separate agreement to give further assistance; or

the convicted person did not receive a reduced sentence, but subsequently gave, or undertook in an agreement to give assistance in connection with the investigation or prosecution of an offence.

In reviewing a sentence under subsection (1), the Court that entered the original sentence shall have regard to the extent and nature of the assistance given or offered.

Power to reduce penalties for assistance rendered to the State

29.(1) A Judge may impose a lesser sentence than the Judge would otherwise impose on an accused person having regard to the degree to which the accused person has assisted, or undertaken to assist, the State in the prevention, detection or investigation of, or in State proceedings relating to, the offence concerned or any other offence, and having regard to the matters set out in subsection (2).

In deciding whether to impose a lesser sentence for an offence and the nature and extent of the sentence he imposes, the Judge shall consider the following matters
the significance and usefulness of the accused person’s assistance to the State concerned, taking into consideration any evaluation by the State of the assistance rendered or undertaken to be rendered;

the truthfulness, completeness and reliability of any information or evidence provided by the accused person;

the nature and extent of the accused person’s assistance or promised assistance;

the timeliness of the assistance or undertaking to assist;

any benefits that the accused person has gained or may gain by reason of the assistance or undertaking to assist;

whether the accused person will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist;

any injury suffered by the accused person or the accused person’s family, or any danger or risk of injury to the accused person or the accused person’s family, resulting from the assistance or undertaking to assist;

whether the assistance or promised assistance concerns the offence for which the accused person is being sentenced or an unrelated offence;

whether the accused person has agreed to compensate the victim; and

whether the accused person offers to plead guilty soon after he has been charged or at the earliest possible time after the investigator’s file is completed.

A Judge that imposes a lesser sentence under this section on an accused person because the accused person has assisted, or undertaken to assist, shall
indicate to the accused person and may make a record of the fact, that the lesser sentence is being imposed because the accused person has assisted, or undertaken to assist, the State, in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence; and

state the sentence that it would otherwise have imposed.

Subsection (3) does not limit any requirement that a Judge has, apart from that subsection, to record the reasons for his decisions.

The failure of a Judge to comply with the requirements of subsection (3) with respect to any sentence does not invalidate the sentence.

Withdrawal from agreement

30.(1) An accused who enters into a plea agreement is entitled to withdraw from that agreement where

it was entered into as a result of an improper inducement;

the Court determines that the Director of Public Prosecutions has breached the terms of the plea agreement; or

it was entered into as a result of a misrepresentation or misapprehension as to the substance or consequences of the plea agreement.

(2) The Director of Public Prosecutions is entitled to withdraw from a plea agreement before sentence where the Director of Public Prosecutions is satisfied that he was

in the course of plea negotiations, misled by the accused [or where the accused is a child by his parent, guardian or probation officer, as the case may be] or by his attorney-at-law in some material respect; or

induced to conclude the plea agreement by conduct amounting to an obstruction of justice.

Application by Prosecutor to set aside plea agreement

31.(1) Upon application, the Director of Public Prosecutions, may appeal to the Court of Appeal, with the leave of the court to set aside an accused person’s conviction or sentence pursuant to a plea agreement where

the prosecutor, in the course of the plea negotiations was wilfully misled by the accused person [or where the accused is a child by his parent, guardian or probation officer, as the case may be] or his attorney-at-law in some material respect;

the prosecutor was induced to conclude the plea agreement by threats, force, bribery or any other means of intimidation or influence; or

there are any other grounds upon which the plea agreement may be set aside in the interest of justice.

(2) Where in accordance with subsection (1), the Director of Prosecutions is granted leave to the Court of Appeal, the Director of Public Prosecutions shall give Notice of Appeal in the form set out as Form 10 in the Schedule, within 28 days of the sentence being passed.

Admissibility of plea agreement, etc.

32. Evidence of the following matters is not, in any civil or criminal proceedings, admissible against the accused who entered the agreement or is a party to the plea negotiation:

a plea of guilty which was later withdrawn or any statement made in the course of any proceedings under this Act regarding the plea of guilty; or

any statement made in the course of plea negotiations with the Director of Public Prosecutions which does not result in a guilty plea or which results in a plea of guilty that is later withdrawn or rejected.

Sealing of records of plea negotiations

33. The Court may upon application by either party or in its discretion, as the case may be, order that the records of plea negotiations or a plea agreement be sealed, where the court is satisfied that the sealing of such records is in the interests of the effective administration of justice.

Obligation for secrecy

34.(1) A person having an official duty or being employed in the administration of this Act shall regard and deal with as secret and confidential, all information relating to a plea agreement

before it is presented to the Court; or

after the records thereof are sealed by the Court.
A person referred to in subsection (1) who has in his possession or under his control any document, information or record, and who communicates or attempts to communicate anything contained in such document or record or any such information to another person otherwise than in accordance with this Act or pursuant to a Court order, is guilty of an offence and liable on summary conviction to a fine of $100 000 or to imprisonment for a term of 3 years or to both.

Any person to whom information is communicated in accordance with this Act, shall regard and deal with such information as secret and confidential.

A person referred to in subsection (3) who at any time communicates or attempts to communicate any information referred to in that subsection to any person otherwise than for the purposes of this Act, is guilty of an offence and liable on summary conviction to a fine of $100 000 or to imprisonment for a term of 3 years or to both.

Amendment of Schedule

35.(1) The Minister may by order amend the Schedule. (2) An order made under subsection (1) is subject to negative resolution.

……………………………..

Lanein K. Blanchette

          Speaker

Passed by the National Assembly this                day of                             , 2024.

                                                                          ……..………………………………….

Trevlyn Stapleton

Clerk of the National Assembly