Whither The Legal Protection For Crime Victims In The Negotiated Justice Process?

Lack of Legal Protection for Victims of Crimes

For several decades, plea-negotiation has been part and parcel of the criminal justice system in many western jurisdictions such as the USA and the United Kingdom. Importantly, such plea-bargaining process has managed to reduce the backlog of cases in those jurisdictions (Ministry of Home Affairs, 2009; Moore, 2015). Such process is predominantly popular among the prosecutors as it eases their burden of preparing elaborate prosecutorial cases (Mohamad Amin et al., 2014; Akram, 2005). Also, the process allows the accused person to play an active role in the pre-trial setting by micro-managing the possible outcome of his trial (Karmen, 2012). The process was incorporated into the pre-trial stage and acts as a filter to sieve out the cases that could be solved without a full trial setting (Golden, 2014). Due to its informal environment, the pre-trial stage adequately equipped the plea-bargaining process with a very much needed approach to negotiation and discussion. (Roberts & Wright, 2016). Such a stage operates by focusing on the role of several important players that accommodate the process (Sanders, 2016). Such actors within the plea-bargaining process include the prosecutors, the accused person, the defence counsel and the judge (Newburn, 2011). However, it is unfortunate that the current criminal justice system is concerned with the accused person rather than on the victim's rights (Karmen, 2012). The voice of the victims of crimes is considered as an accessory to supplement the role of the voice of the state and the view of the accused (Sidhu, 2015; Mohamad Amin et al., 2014; Akram, 2005).

The rights and the interests of the victims of crimes might not be addressed sufficiently within an offender-centred system (Pugach & Tamir, 2017). The empowerment of the criminal justice system is directed to ensure that the interests of the accused persons are protected, and the punishment would procedurally follow. Hence, the criminal justice system in many jurisdictions around the world punishes the offender, yet such system focuses less on the compensation for the victims (Finkelhor, Ormrod, Turner, & Hamby, 2005). Although the movement towards victim empowerment is growing rapidly in other jurisdiction such as the United States (Pathmanathan, 2013), however, such is not the case with the criminal justice system in Malaysia as the development are progressing at a much lower rate since 1990 (Ghafar, 2014). Similar to the legal position in the USA, the United Kingdom, Canada, and Australia have also established bodies that promote and protect the rights and the interests of the victims of crimes (Ismail, 2011; Sheley, 2017; Braun, 2013).

Inadequate Provision in the Malaysian Legislation

As stated earlier, the 2010 amendment to the Criminal Procedure Code 1976 introduced the plea-bargaining process in Malaysia (Sharif & Asidah, 2012). The said amendment added two new provisions on such process under section 172C and 172D. Section 172C allows an accused person to apply to the court, which will hear his case to make a plea bargain before the trial. The said section provides that an accused charged with an offence and claims to be tried may make an application for plea bargaining in the Courts in which the offence is to be tried. Section 172C (2) continues to require the accused person to file Form 28A provided under the Second Schedule for the CPC. Such form must contain a brief description of the offence that the accused is charged with, a declaration of voluntariness by the accused person and his knowledge of the impact of entering a plea-bargaining process and the information of the type of bargaining that the accused person intended to engage with.

Subsequently, upon receiving the application under Form 28A, the court will notify the prosecutor and set the date for the hearing of the application. Section 172C (4) provides that the court will conduct an examination of the accused person in camera to ascertain the voluntariness of the plea made by the accused person. Section 172C (5) further states that upon satisfying the voluntariness of the accused person in the plea-bargaining process, the public prosecutor and the accused person shall proceed to draft an agreement on satisfactory disposition of the case. Such agreement shall be put in a writing and signed by the prosecutor and the accused person, and the court shall give effect to the agreement pursuant to section 172C (7) of the CPC. If both parties cannot reach a satisfactory disposition agreement, the court must record such observation and the case shall proceed to another court as stated under section 172C (8). However, if the court is not satisfied with the voluntariness of the plea by the accused person, section 172C (6) provides that the court shall dismiss the application and the case shall proceed before another court.

Section 172D provides for the right of the accused person to enter into a plea negotiation process and allow the prosecutor to negotiate the charge or sentence that the prosecutor seeks from the court. Section 172D underlines the possible reduction of the sentence that the accused may get, in return for entering the plea-bargaining application through Form 28A. Also, the said section set the limitations on the type of crimes that may not be entitled to receive half of the reduction of the sentence allowed in the previous subsection. Section 172D (3) provides that the reduction of half of sentence shall not apply where the accused has previous conviction for a related or same offence in the case of serious offence. The provision continues to include offences which the punishment under the law is by fine only, offences which the punishment under the law is imprisonment for natural life, sexually-related offences, any offences committed against a child who is below 12 years old and any other offence that may be specified by the Public Prosecutor by order published in the Gazette as not entitled to a half reduction of sentence in the plea-bargaining process.

The limitations imposed under section 172D(3)(b) provides that the plea-bargaining process that offers a reduction of not more than half of the sentence does not apply to any sexually-related offences (Sidhu, Muhamed, & Akram, 2015). In contrast to the legal position in the USA, such provision might provide a slightly better protection to the interests of female victims of rape in Malaysia. This is because, in the USA, a major reduction of sentence may still be allowed to the accused person after the bargain even in sexual and violent cases (Moore, 2015). It is also important to highlight that sections 172C and 172D does not include the need for the victim to make an impact statement. Such a statement is not required as the victims of crimes are not the parties to the plea-bargaining process (Sidhu, 2015). However, the prosecutors might deliberately keep the crime victims ‘in the dark’ on the plea-bargaining process so as to prevent the victims from raising any objection (Zimmerman, 2016). Although section 172D of the CPC allows the court to award compensation order to female victims of crimes, the Rape Trauma Syndrome (RTS) and Post Traumatic Stress Disorder (PTSD) occasionally suffered by women victims of sexual cases are impossible to be quantified by numbers (Ismail, 2011).

The landmark case of plea-bargaining is New Tuck Shen v PP (1982) , which was decided before the amendment of the CPC. In this case, the agreement was struck between the prosecutor and the defence counsel in which the prosecutor would not pray for the deterrent sentence. The prosecutor purposely disregarded the said agreement and subsequently the accused was sentenced to a six-month incarceration. During the appeal, the absence of any documents proving the existence of such agreement between the parties had caused the defendant his conviction (Hussin, 2010). In contrast to the landmark case, in a later case in Public Prosecutor v Ravindran &Ors (1993) the court acknowledged the advantages of the plea-bargaining process. The court took into consideration that the request would shorten the lengthy process of the trial and the fact that the trial will be an excruciating one as another two accused persons were still at large at that time.VisuSinnadurai J agreed to reduce the sentence to one-quarter of the sentence duration.

Recommendations for Reforms

It is apparent that neither the interests nor the rights of victims of crimes are addressed in the existing legal framework on the plea-bargaining process in Malaysia. As such, legal reform is very much needed to fill in the loopholes in the existing law and to protect the interests of such victims. In the UK, Guideline B2 of the Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud makes it clear that the prosecutor should communicate with the victims before entering into any plea-bargaining process (Flynn, 2011). Section 172D of the CPC should be amended to include a new provision compelling the prosecutor to communicate with the victims before the plea-bargaining process. This provision should sufficiently provide that such victims may be allowed to stand and face the offenders at the pre-trial stage and inform the prosecutor the impact of such crime on them.

In the broader analysis, the reform as mentioned above involving the offender-victim mediation and the inclusion of female victims into the plea-bargaining process would signal the adoption of Restorative Justice (RJ) model in which four parties consisting of the victim, offender, community and government should be involved (Koman, 2016). While the victim’s role is to describe the impact of the offence and what might be needed to assist with their healing, the offender’s role is to accept the responsibility for his harmful actions and to make amends (Dancig-Rosenberg & Gal, 2013). The community’s responsibility to the victim is to assist with their healing and to support rehabilitation for the offender. The government’s role is to maintain order in the community and to ensure fairness to the offender and provides redress for the victim (Mbazira & Mubangizi, 2014). Studies on restorative justice and its impact on the victims of violent crimes in London indicated that restorative justice had reduced the crime victims’ post-traumatic stress symptoms and related costs. Such an approach had also provided both victims and offenders with more satisfaction with restorative justice than criminal justice and reduced the crime victims’ desire for violent revenge against their offenders (Gold, 2017).

Under section 426 (1A) of the CPC, the prosecutor may apply for a compensation order and the court must fix a certain amount to be paid to the victims of crimes for any physical or reputational injuries or losses to income or property suffered by the victims resulting from the crimes committed against them. However, it is rightly argued that such section insufficient and limited (Hussin, 2010) and may be inadequate to address the psychological trauma suffered by female victims of sexually-related crimes. The female victim of the offence may be “re-victimised” by the system when the charge on the offence committed on her was bargained for, and the accused even received a discounted sentence after the deal (Moore, 2015). To address such deficiency, perhaps a criminal injuries compensation scheme that is modelled on the Criminal Injuries Compensation Authority in the United Kingdom should be created that could provide for the psychological and economic compensation for the losses and damages suffered from any crime committed upon the victims, mainly female victims.