Mediation: Plea Bargaining in Criminal Cases

Although mediation is not uncommon when negotiating dispute settlement in civil cases, the same may not necessarily be appropriate with criminal cases — partly because criminal cases pertain to public rights not private rights and any attempt to mediate may fall foul of public interest, hence non-n...

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Bibliographic Details
Main Author:	Kamarudin, Abdul Rani
Other Authors:	Yaakob, Adnan
Format:	Book Chapter
Language:	English
Published:	CLJ Publication 2020
Subjects:	K Law (General)
Online Access:	http://irep.iium.edu.my/78928/ http://irep.iium.edu.my/78928/1/Mediation%20pleabargain%20scan2020a.pdf

id	iium-78928
recordtype	eprints
spelling	iium-789282020-02-25T02:28:45Z http://irep.iium.edu.my/78928/ Mediation: Plea Bargaining in Criminal Cases Kamarudin, Abdul Rani K Law (General) Although mediation is not uncommon when negotiating dispute settlement in civil cases, the same may not necessarily be appropriate with criminal cases — partly because criminal cases pertain to public rights not private rights and any attempt to mediate may fall foul of public interest, hence non-negotiable. In criminal ases, the prosecution, the moment they prefer a charge against any person, they would without doubt seek for a conviction by first establishing a prima facie case, otherwise the accused would not have to enter upon his defence. For the accused, if called upon to enter upon his defence, he would attempt to create reasonable doubt in the prosecution’s case. If he succeeds, the outcome would most likely be an acquittal as the prosecution case may not be proven on a criminal standard of proof, i.e. beyond all reasonable doubt. The Public Prosecutor (‘PP’), however, has unfettered discretion to bring an allegation against an offender but he too has discretion at any stage of the trial, whether to add up or reduce the number of charges; to withdraw the case completely; or substitute it with fewer allegations, hence make do with lesser punishment for the convicted offender. Interestingly too, from 2010, there has been a provision for plea bargaining in the Malaysian Criminal Procedure Code (CPC) that the prosecutor and the accused may avail of, prior to commencement of the trial which is distinct and separate from the prosecutor’s power to withdraw the case at any stage of the trial. This paper discusses the meaning of mediation, whether mediation is possible at the plea bargaining stage by analysing the plea bargaining provisions and other provisions in the CPC with relevant decided cases. CLJ Publication Yaakob, Adnan Asghar Ali, Ali Mohamed Arun, Kasi Mohammad Naqib, Ishan jan Muhamad Hassan, Ahmad 2020-02-28 Book Chapter PeerReviewed application/pdf en http://irep.iium.edu.my/78928/1/Mediation%20pleabargain%20scan2020a.pdf Kamarudin, Abdul Rani (2020) Mediation: Plea Bargaining in Criminal Cases. In: Alternative Dispute Resolution - Law & Practice. CLJ Publication, Rawang, Selangor, MALAYSIA, pp. 355-368. ISBN ISBN 978-967-457-144-3
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	K Law (General)
spellingShingle	K Law (General) Kamarudin, Abdul Rani Mediation: Plea Bargaining in Criminal Cases
description	Although mediation is not uncommon when negotiating dispute settlement in civil cases, the same may not necessarily be appropriate with criminal cases — partly because criminal cases pertain to public rights not private rights and any attempt to mediate may fall foul of public interest, hence non-negotiable. In criminal ases, the prosecution, the moment they prefer a charge against any person, they would without doubt seek for a conviction by first establishing a prima facie case, otherwise the accused would not have to enter upon his defence. For the accused, if called upon to enter upon his defence, he would attempt to create reasonable doubt in the prosecution’s case. If he succeeds, the outcome would most likely be an acquittal as the prosecution case may not be proven on a criminal standard of proof, i.e. beyond all reasonable doubt. The Public Prosecutor (‘PP’), however, has unfettered discretion to bring an allegation against an offender but he too has discretion at any stage of the trial, whether to add up or reduce the number of charges; to withdraw the case completely; or substitute it with fewer allegations, hence make do with lesser punishment for the convicted offender. Interestingly too, from 2010, there has been a provision for plea bargaining in the Malaysian Criminal Procedure Code (CPC) that the prosecutor and the accused may avail of, prior to commencement of the trial which is distinct and separate from the prosecutor’s power to withdraw the case at any stage of the trial. This paper discusses the meaning of mediation, whether mediation is possible at the plea bargaining stage by analysing the plea bargaining provisions and other provisions in the CPC with relevant decided cases.
author2	Yaakob, Adnan
author_facet	Yaakob, Adnan Kamarudin, Abdul Rani
format	Book Chapter
author	Kamarudin, Abdul Rani
author_sort	Kamarudin, Abdul Rani
title	Mediation: Plea Bargaining in Criminal Cases
title_short	Mediation: Plea Bargaining in Criminal Cases
title_full	Mediation: Plea Bargaining in Criminal Cases
title_fullStr	Mediation: Plea Bargaining in Criminal Cases
title_full_unstemmed	Mediation: Plea Bargaining in Criminal Cases
title_sort	mediation: plea bargaining in criminal cases
publisher	CLJ Publication
publishDate	2020
url	http://irep.iium.edu.my/78928/ http://irep.iium.edu.my/78928/1/Mediation%20pleabargain%20scan2020a.pdf
first_indexed	2023-09-18T21:51:05Z
last_indexed	2023-09-18T21:51:05Z
_version_	1777413773800243200

Mediation: Plea Bargaining in Criminal Cases

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