7. Charge negotiation

Charge negotiation involves negotiations between the defence and the prosecution in relation to the charges to proceed. Such negotiations may result in the accused pleading guilty to fewer than all the charges he or she is facing, or to a lesser charge or charges, with the remaining charges not being proceeded with.

These guidelines have earlier referred to the care that must be taken in choosing the charge or charges to be laid. Nevertheless, circumstances can change and new facts can come to light. Agreements as to charge or charges and plea must be consistent with the requirements of justice.

A proposal should not be entertained by the prosecution unless:

• the charges to be proceeded with bear a reasonable relationship to the nature of the criminal conduct of the accused
• those charges provide an adequate basis for an appropriate sentence in all the circumstances of the case
• there is evidence to support the charges

Any decision whether or not to agree to a proposal advanced by the defence, or to put a counter-proposal to the defence, must take into account all the circumstances of the case and other relevant considerations including:

• whether the accused is willing to co-operate in the investigation or prosecution of others, or the extent to which the accused has done so
• whether the sentence that is likely to be imposed if the charges are varied as proposed would be appropriate for the criminal conduct involved (taking into account such matters as whether the accused is already serving a term of imprisonment)
• the desirability of prompt and certain resolution of the case
• the accused’s antecedents
• the strength of the prosecution case
• the likelihood of adverse consequences to witnesses
• in cases where there has been a financial loss to the State or any person, whether the accused has made restitution or arrangements for restitution
• the need to avoid delay in the resolution of other pending cases
• the time and expense involved in a trial and any appeal proceedings
• the views of the investigating police officers
• the views of the victim or others significantly affected.

In no circumstances should the prosecution entertain a proposal if the accused maintains his or her innocence with respect to a charge or charges to which the accused has offered to plead guilty.

The process of determining whether or not to accept a proposal to proceed with fewer or lesser charges should be in accordance with the procedure set out in guidelines for 2. Decision to prosecute - considerations and 3. Decision to prosecute – procedures.