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Plea Negotiations and Agreements Act, 2010

This section gives the Act’s short title and says it starts on a date appointed by the Minister by statutory instrument. This section defines key terms used in the provision, including court, legal practitioner, plea…

admissibility of evidenceappealscase dispositioncommencementcompliancecourt filingscourt procedurecourt recordscriminal procedureinformation handlinglegal aidlegal representationlegal servicespenaltiesplea agreementsplea negotiationplea negotiationspublicationshort titlewithdrawal from agreements
Jurisdiction
Zambia
Structure
46 provisions
Citation
Act 20 of 2010
Dates
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01

Purpose and legislative effect

“This section gives the Act’s short title and says it starts on a date appointed by the Minister by statutory instrument.”

This section gives the Act’s short title and says it starts on a date appointed by the Minister by statutory instrument. This section defines key terms used in the provision, including court, legal practitioner, plea agreement, plea negotiation, public prosecutor, and victim. An accused person may plead guilty without entering plea negotiations or a plea agreement. The public prosecutor’s powers are preserved, unless expressly agreed otherwise in a plea agreement. A public prosecutor or an accused person may enter into plea negotiations before judgment, subject to the Act and section six. This extract begins a rule about the powers of a public prosecutor, but the actual powers are not shown here.

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Section 26

The Director of Public Prosecutions may consider whether other provisions are necessary or desirable.

Section 26

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Showing 46 of 46 provisions

Provision 33Offence 8Short title 2Interpretation 2

Part

PART I

§ 1This Act may be cited as the Plea Negotiations and Short titleShort title

This section gives the Act’s short title and says it starts on a date appointed by the Minister by statutory instrument.

1. This Act may be cited as the Plea Negotiations and Short title Agreements Act, 2010, and shall come into operation on such date and as the Minister may, by statutory instrument, appoint. noomumm�"�""'�'�"'ntrt In this Act, unless the context otherwise requires -
Section 1Verify source
§ 2Section 2Interpretation

This section defines key terms used in the provision, including court, legal practitioner, plea agreement, plea negotiation, public prosecutor, and victim.

2. "court" means a High Court or a subordinate court; "legal practitioner" has the meaning assigned to it in the Legal Practitioners Act; Interpretation Cap. 30 ... "plea agreement" means an agreement made pursuant to section four; "plea negotiation" means any negotiation carried out between an accused person or the accused person's legal representative, and a public prosecutor in relation to the accused person pleading guilty to a lesser offence than the offence charged or to one of multiple charges in return for any concession or benefit in relation to which charges are to be proceeded with; "public prosecutor" has the meaning assigned to it in the Criminal Cap. 88 Procedure Code; and "victim" in relation to an offence, means a person who has suffered actual physical bodily harm, Joss of any kind, mental illness or mental shock as a direct result of an act or omission involved in the offence. 280 [No. 20 of 2010 Plea Negotiations and Agreements Declaration certain of existing rights Cap. I
Section 2Verify source
§ 3Section 3Provision

An accused person may plead guilty without entering plea negotiations or a plea agreement. The public prosecutor’s powers are preserved, unless expressly agreed otherwise in a plea agreement.

3. (I) Nothing in this Act affects the right of an accused person to plead guilty to a charge without entering into any plea negotiation or a plea agreement. (2) Except as expressly agreed by a public prosecutor in a plea agreement, nothing in this Act affects the powers conferred upon the public prosecutor under the Constitution or any other written law. Pica negotiation PART II PLEA NEGOTIATIONS
Section 3Verify source
§ 3Declaration of certain existing rightsProvision

Section heading: Declaration of certain existing rights in Part II (Plea Negotiations).

3. Declaration of certain existing rights PART II PLEA NEGOTIATIONS
Section 3Verify source

Part

PART II

§ 4Section 4Offence

A public prosecutor or an accused person may enter into plea negotiations before judgment, subject to the Act and section six.

4. (I) Subject to section six, where a public prosecutor considers it desirable in any case, or where the circumstances of the case so warrant, the public prosecutor may, at any time before judgment and in accordance with the provisions of this Act, enter into a plea negotiation with the accused person for the purpose of reaching an agreement in accordance with the provisions of subsection (3), for the disposition of any charge against the accused person. (2) An accused person may, at any time before judgment and in accordance with the provisions of this Act, enter into a plea negotiation with a public prosecutor for the purpose of reaching an agreement in accordance with the provisions of subsection (3 ), for the disposition of any charge against the accused person. (3) An agreement under subsection {I) shall require that­ (a) the accused person undertakes to- (i) make a guilty plea to an offence which is disclosed on the facts on which the charge against the accused person is based; and (ii) fulfil the accused person's other obligations specified in the agreement; and (b) a public prosecutor, having regard to the accused person's undertaking under paragraph (a) agrees to- (i) take a course of action consistent with the exercise of the powers specified in section.five; and' (ii) fulfil the other obligations of the State specified in the agreement. Exercise by public prosecutor of certain powers
Section 4Verify source
§ 5The powers of a public prosecutor referred to inShort title

This extract begins a rule about the powers of a public prosecutor, but the actual powers are not shown here.

5. The powers of a public prosecutor referred to in subparagraph (i) of paragraph (b) of subsection (3) of section/our are to- Plea Negotiations and Agreements [No. 20 of 2010 277 THE PLEA NEGOTJATIONS AND AGREEMENTS ACT, 2010 ARRANGEMENT OF SECTJONS PART I PRELIMINARY ' . Short title and commencement lnterpretation I.
Section 5Verify source
§ 6Section 6Provision

The public prosecutor must notify the court that a plea agreement exists.

6. Plea negotiation Exercise by pub I ic prosecutor of certain powers Legal representation PART II1 PLEA AGREEMENTS \ Plea agreement Public prosecutor to notify court of existence of plea agreement
Section 6Verify source

Part

PART II1

§ 8Victim to be informed of plea agreementProvision

This section is titled “Victim to be informed of plea agreement.”

8. Victim to be informed of plea agreement
Section 8Verify source
§ 11Matters for consideration of court before accepting plea agreementProvision

This section concerns the matters a court considers before accepting a plea agreement.

11. Matters for consideration of court before accepting plea agreement
Section 11Verify source
§ 12Refusal by court to accept plea agreementProvision

Section 12 concerns a court’s refusal to accept a plea agreement.

12. Refusal by court to accept plea agreement
Section 12Verify source
§ 14Accepted plea agreement to form part of recordProvision

An accepted plea agreement forms part of the record.

14. Accepted plea agreement to form part of record
Section 14Verify source
§ 16Admissibility of plea agreement, etcProvision

This section concerns the admissibility of plea agreements and related matters.

16. Admissibility of plea agreement, etc.
Section 16Verify source
§ 17Sealing of records of plea negotiationsProvision

This section concerns the sealing of records of plea negotiations.

17. Sealing of records of plea negotiations
Section 17Verify source
§ 19Grant of legal aidProvision

This section is titled “Grant of legal aid.”

19. Grant of legal aid PART JV GENERAL PROVISIONS
Section 19Verify source

Part

PART JV

§ 20RegulationsOffence

The text says copies of the Act can be obtained from the Government Printer for K5000 each, and includes a fragment about plea negotiations allowing withdrawal of the original charge or acceptance of a plea to a lesser offence.

20. Regulations SCHEDULE Copies of this Act can be obtained from the Government Printer, P.O. Box 30136, JOJO/ Lusaka. Price K5000 each. Plea Negotiations and Agreements [No. 20 of 2010 281 . . (a) withdraw or discontinue the original charge against the accused person; or (b) accept the plea of the accused person to a lesser offence, whether originally included or not, than that charged.
Section 20Verify source

Part

SCHEDULE

§ 6Section 6Provision

Before any plea negotiation, a public prosecutor must tell the accused person about the right to a lawyer of choice and the right to apply for legal aid. Negotiations must go through the accused person's legal representative.

6. (I) Notwithstanding any other provision to the contrary in Legal representatio_n any other law, a public prosecutor shall, before commencing any plea negotiation, inform the accused person of the accused person's rightto representation by a legal practitioner of the accused person's choice and of the right to apply for legal aid in respect of the negotiations. (2) Plea negotiations shall be held by a public prosecutor with the accused person only through the accused person's legal representative. PART III PLEA AGREEMENTS
Section 6Verify source
§ 9Section 9Offence

The Agreement must include specified court, case, counsel, accused, and document details, and certain documents may need to be attached.

9. The name and jurisdiction of the court in which the matter is held or to be held. The case number and file number. The name. position, business address, business telephone and facsimile numbers of the public prosecutor. The name, position, business address, busineSs telephone and facsimile munbers of the defence counsel. The proper name and alias, if any, and the last known address of the accused person. The original information or indictment shall be attached to the Agreement. The draft information or indictment shall be attached to the Agreement. The elements of the various offences to which the accused person is pleading shall be set out. A statement of facts may be attached and incorporated by reference. Any document containing any promise, agreement, understanding or inducement which forms part of the Agreement shall be attached to the Agreement.
Section 9Verify source
§ 10A statement that the accused person was informed of, and has waived, theProvision

The provision lists rights of the accused person that must be explained and may be waived.

10. A statement that the accused person was informed of, and has waived, the following rights: (a) the right not to be compelled to give self-incriminating.evidence; {b) the right to confront and cross-examine any witnesses against the accused person; and (c) the right to pursue pre-trial motions and appeal preliminary points.
Section 10Verify source
§ 11A statement that the provisions of the Agreement are not binding on theProvision

This provision states that the Agreement’s provisions are not binding on the court.

11. A statement that the provisions of the Agreement are not binding on the court.
Section 11Verify source
§ 12A statement of the rights of the accused person under the Agreement, includingProvision

The accused person has the right under the Agreement to keep a plea of not guilty.

12. A statement of the rights of the accused person under the Agreement, including the right to persist in a plea ofnot guilty .
Section 12Verify source
§ 13The obligations of the accused person under the AgreementProvision

This section concerns the accused person’s obligations under the Agreement.

13. The obligations of the accused person under the Agreement.
Section 13Verify source
§ 14The obligations of the State under the AgreementProvision

Section heading: the State’s obligations under the Agreement.

14. The obligations of the State under the Agreement.
Section 14Verify source
§ 15A statement that the State is free to prosecute the accused person for anyProvision

The State may prosecute the accused person for other unlawful conduct not covered by the Agreement, conduct not already acquitted or convicted, and unlawful conduct occurring after the Agreement date.

15. A statement that the State is free to prosecute the accused person for any other unlawful past conduct which is not the subject of the Agreement or for which the accused person has not been acquitted or convicted, or any unlawful conduct that occurs after the date of the Agreement.
Section 15Verify source
§ 16A statement that the Director of Public Prosecutions may, in any caseProvision

The Director of Public Prosecutions may discontinue criminal proceedings before judgment if it is considered desirable.

16. A statement that the Director of Public Prosecutions may, in any case where the Director of Public Prosecutions considers it desirable so to do, discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by the Director of Public Prosecutions or any other person or authority.
Section 16Verify source
§ 17The grounds upon which an accused person may withdraw from theProvision

Section heading: grounds on which an accused person may withdraw from the Agreement.

17. The grounds upon which an accused person may withdraw from the Agreement. 286 [No. 20 of 2010 Plea Negotiations and Agreements
Section 17Verify source
§ 18Consequences of any breach of the AgreementProvision

This section concerns the consequences of breaching the Agreement.

18. Consequences of any breach of the Agreement.
Section 18Verify source
§ 19P rovisions relating to a right of appealProvision

This section concerns provisions relating to a right of appeal.

19. P rovisions relating to a right of appeal.
Section 19Verify source
§ 20A statement that the Agreement applies only to an offence committed byOffence

The Agreement applies only to the offence charged against the accused person and does not affect other proceedings not expressly mentioned in it.

20. A statement that the Agreement applies only to an offence committed by the accused person with which the accused person is charged and has no effect on any proceedings again st the accused person not expressly mentioned therein. 2 1 . The date on which the Agreement was concluded.
Section 20Verify source
§ 22That the Agreement becomes effective upon signature by the accused person,Provision

The Agreement becomes effective only after it is signed by the accused person, the accused person's legal counsel, and the public prosecutor before a court.

22. That the Agreement becomes effective upon signature by the accused person, the accused person's legal counsel and the public prosecutor, before a court.
Section 22Verify source
§ 23The following statement by the accused personOffence

This provision contains a statement for an accused person to sign confirming a guilty plea, consultation with legal counsel, and understanding of the agreement and its consequences.

23. The following statement by the accused person: "I have read this Agreement and carefully discussed each paragraph with my legal counsel. I understand the terms of this Agreement and agree to it without reservation. I voluntarily and ofmy free will agree to these terms. I am pleading guilty to the following charge (s): *(a) .......................................................................................................... . (b) ....................................................................................................... . My legal representative has advised me of my rights, of possible defence, of the penalties and the consequences of entering into this Agreement. No promises, agreements, understanding or inducements have been made to me other than those contained in this Agreement. No one has threatened or forced me in any way to enter into this Agreement. I have had sufficient time to confer with my legal counsel concerning this Plea Agreement. I am satisfied with the representation ofmy legal representative in this matter. •state as applicable Signature of accused person Name of accused person Date
Section 23Verify source
§ 24Section 24Offence

A legal practitioner signing this statement says they have read and discussed the agreement with the accused person and advised them about their rights, possible defences, penalties, and the consequences of entering the agreement.

24. The following statement by the legal practitioner representing the accused person: "I am the legal representative for Name of accused person I have read this Agreement and carefully discussed each paragraph of this Agreement with my client. Further, I have fulJy advised my client of my client's rights, of possible defences, of the penalties, and of the consequences of entering into this Agreement. To the best of my knowledge and belief, my client's decision to enter into this Agreement is an informed and voluntary one. Plea Negotiations and Agreements [No. 20 of 2010 287 Signature of legal practitioner representing the accused person Name of legal practitioner representing the accused person Date
Section 24Verify source
§ 25Section 25Interpretation

A statement must indicate whether the accused person communicated with a prosecutor through an interpreter; if so, an interpreter’s certificate on the accuracy of the interpretation must be attached to the agreement.

25. A statement whether the accused person communicated with a prosecutor through an interpreter. If the accused communicated through an interpreter, a certificate by the interpreter as to the accuracy of the interpretation during the negotiations and in respect of the contents of the agreement shall be appended to the Agreement.
Section 25Verify source
§ 26Section 26Provision

The Director of Public Prosecutions may consider whether other provisions are necessary or desirable.

26. Such other provision as the Director of Public Prosecutions considers necessary or desirable. I 288 1
Section 26Verify source

Part

PART III

§ 7Section 7Provision

A plea agreement brought before a court must be in writing, include the Schedule information, and be signed in each other's presence by the public prosecutor, the accused person, and the accused person's legal representative.

7. A plea agreement that is brought before a court shall -· {a) be in writing; (b) contain the information set out in the Schedule; and (c) be signed by a public prosecutor, the accused person and the accused person's legal representative in each other's pr�sence. Plea agreement
Section 7Verify source
§ 8Section 8Provision

A public prosecutor must tell the victim about a plea agreement and its reasons, and the victim may be present when the court considers it.

8. (!) Subject to section seventeen, where a plea agreement is concluded, a public prosecutor shall, where applicable, and unless otherwise required by compelling reasons in the interest of justice, as soon as is reasonably practicable, inform the victim - (a) of the substance of, and reasons for, the plea agreement; and Victim to be informed of plea agreement (b) that the victim is entitled to be present when the court considers the plea agreement. . (2) Where the victim has. died or is incapacitated, a public prosecutor shall communicate with a member of the victim's immediate family or authorised representative in respect of the matters set out in subsection (I).
Section 8Verify source
§ 9Section 9Provision

A prosecutor must inform the court when a plea agreement exists, and the court may question the accused person about that agreement if needed.

9. (I) A prosecutor shall in open court or on showing of good cause in chambers - (a) before the accused person is required to plead; or (b) at any time after arraignment; inform the court, as the case may be, of the existence of a plea agreement. Public prosecutor to notify court of existence of plea agreement 282 [No. 20 of 2010 Plea Negotiations and Agreements (2) The court may, where the circumstances appear to so require, question the accused person in order to confirm the accused person's knowledge of the existence of a plea agreement.
Section 9Verify source
§ 10A court shall not be bound to accept any plea agreementProvision

A court does not have to accept a plea agreement, unless refusing it would go against the interests of justice and public interest.

10. A court shall not be bound to accept any plea agreement except where the non-acceptance would be contrary to the interests of justice and public interest.
Section 10Verify source
§ 11A court shall, before accepting a plea agreement, make aProvision

Before accepting a plea agreement, a court must make certain findings in open court.

11. A court shall, before accepting a plea agreement, make a determination in open court that - {a) no inducement was offered to the accused person to encourage the accused person to enter into the plea agreement; (b) the accused person understands the nature, substance and consequence of the plea agreement; (c) there is a factual basis upon which the plea agreement has been made; and (d) acceptance of the plea agreement would not be contrary to the interests of justice and public interest.
Section 11Verify source
§ 12(!) Subsection (2) shall apply where, upon a determinationOffence

If the court rejects a plea agreement, it must refuse it, notify the public prosecutor with reasons, and try the accused on the original charge.

12. (!) Subsection (2) shall apply where, upon a determination of the matters referred to in section eleven, the court decides that (a) acceptance of the plea agreement would be contrary to the interests of justice and public interest; (b) the offence for which the accused person is charged is not disclosed on the facts; or (c) there is no confirmation by the accused person of the agreement or the admission contained in the agreement. (2) The court shall, in the circumstances described in ·subsection (l)- (a) refuse to accept the plea agreement; (b) inform the public prosecutor of the decision and the reasons therefor. (3) The rejection ofa plea agreement by a court shall not operate as a bar to the conduct of any subsequent plea negotiation and the conclusion of a subsequent plea agreement in respect of the same case. ( 4) The court shall, where it rejects a plea agreement under subsection (2), proceed to try the accused person on the original charge.
Section 12Verify source
§ 13Where a plea agreement is accepted by a court, theProvision

If a court accepts a plea agreement, the accused person must be asked to plead to the new charge.

13. Where a plea agreement is accepted by a court, the accused person shall be requested to plead to the new charge. Court not bound by plea agreement Matters for consideration of court before a c c eptin g plea agreement Refusal by court to accept plea agreement Effect of accepting plea agreement Plea Negotiations and Agreements [No. 20 of 2010 283 Accepted plea agreement to fonn part of record Withdrawal from plea agreement Admissibility of plea agreement, etc.
Section 13Verify source
§ 14Subject to section seventeen, where a plea agreement hasProvision

If a plea agreement has been accepted by the court, its contents must be entered on the record, subject to section 17.

14. Subject to section seventeen, where a plea agreement has been accepted by the court, the contents thereof shall be entered on the record.
Section 14Verify source
§ 15(I) The court may on its own motion, or upon applicationProvision

The court may let an accused person withdraw from a plea agreement or appeal a conviction based on it before sentence, and a public prosecutor may withdraw from a plea agreement before sentence in certain cases.

15. (I) The court may on its own motion, or upon application by an accused person who entered into a plea agreement, allow the accused person to withdraw from that agreement before sentence, or to appeal against a conviction based on the agreement, if- (a) the accused person entered into the agreement as a result of an improper inducement; (b) the court determines that the public prosecutor has breached the terms of the plea agreement; or (c) the accused person entered into the agreement as a result of a misrepresentation or misapprehension as to the substance or consequences of the plea agreement. (2) A public prosecutor may withdraw from a plea agreement before sentence where the public prosecutor subsequently discovers (a) that the public prosecutor was in the course of plea negotiations misled by the accused person or by the accused person's legal representative in some material respect; or (b) that the accused person was induced to conclude the plea agreement.
Section 15Verify source
§ 16Evidence of the following matters is not, in any civil orProvision

Certain plea-related statements and withdrawn guilty pleas are not admissible against an accused person in civil or criminal proceedings.

16. Evidence of the following matters is not, in any civil or criminal proceedings, admissible against an accused person who entered into an agreement or is a party to any plea negotiations: (a) 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 (b) any statement made in the course of plea negotiations with the public prosecutor which does not result in a plea of guilty or which results in a plea of guilty that is later withdrawn.
Section 16Verify source
§ 17The court may, upon application, order that the records ofProvision

The court may order plea negotiation or plea agreement records sealed if someone applies and the court is satisfied that sealing serves the effective administration of justice.

17. The court may, upon application, order that the records of any plea negotiation or a plea agreement be sealed, where the court is satisfied that the sealing of the records is in the interests of the effective administration of justice. Sealing of records of plea negotiations • 284 [No. 20 of 2010 Plea Negotiations.and Agreements Obligation for secrecy Grant oflegal aid Regulations
Section 17Verify source
§ 18(!) A person exercising any function under this Act shallOffence

People exercising functions under the Act must keep plea-agreement information confidential, and further disclosure by covered persons can be an offence.

18. (!) A person exercising any function under this Act shall treat ·as secret and confidential, all information relating to a plea agreement before it is presented to the court or consequent upon the records thereof being sealed by the court. (2). Any' person referred to in subsection (I) having possession of, or control_ over, any document, information or record, who communicates or attempts to communicate anything.contained in the document or record or any such information to any person otherwise than in accordance with this Act or pursuant to a court order, commits an offence and is liable; upon conviction, to a fine not.exceeding one hundred thousand penalty units orto imprisonment for a period not exceeding twelve months, or to both. (3) Any person to whom information is communicated in accordance with this Act shall regard and deal with the information as secret and confidential. (4) 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, commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding twelve months, or to both.
Section 18Verify source
§ 19Legal aid may be granted 10-'Amendment

Legal aid may be granted to people detained in custody settings or to an accused person for plea negotiations; the Minister may also make regulations and amend the Schedule by statutory instrument.

19. Legal aid may be granted 10-'- (a) any person who is detained at a police station or in a lock up, correctional institution or other similar place; or (b) an accused person in respect of the conduct of any plea negotiation under section/our. PART IV· GENERAL PROVISIONS ° 20·. (I) The Minister may, by statutory instrument, make regulations generally for the purpose of giving effect to the provisions of this Act. (2) The Minister may, by statutory instrument, amend the Schedule. . ' ' • I • Plea Negotiations and Agreements [No. 20 of 2010 . 285 SCHEDULE (Section 7) CONTENl'S OF PLEA AGREEMENT L
Section 19Verify source

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