A Swift Path to Justice: The UAE Adopts Plea Bargains
White Collar Crime & Investigations / UAE
Khalid Al Hamrani Partner, Head of White Collar Crime & Investigations
Sharif JamoosAssociate,White Collar Crime & Investigations
The UAE continues its significant legislative drive to further develop its criminal justice system. The amendments reflect the fast-evolving socio-economic landscape of a state that has made remarkable progress in various fields over the past decades.
On the 1st of March 2023, Federal Decree No. 38 of 2022 promulgating the new Criminal Procedures Law (“CPL”) came into force. The CPL makes some noteworthy amendments to Federal Law No.35 of 1992 (the old Criminal Procedures Law), and is designed to better align with the recently amended Penal Code, promulgated through Federal Decree Law No. 31 of 2021 (“Penal Code”).
One of the most striking amendments is the introduction of the concept of plea bargaining into the UAE criminal justice system. Plea bargaining enables judges, prosecutors and the defendants to engage in negotiations to reach a settlement on the indictment without the need for a full trial. The UAE judicial system has not regulated plea bargaining before.
The main advantage of this approach is that it avoids the risk of losing for both the prosecution and the defendant, particularly if there is uncertainty regarding the strength of the evidence presented. Rather than proceeding with a full trial and potentially risking an unfavourable outcome, plea bargaining allows both parties to reach a mutually agreeable settlement. From the prosecution's perspective, this can result in a positive outcome that can avoid an outright acquittal. It can also benefit the civil claimant and eliminate the need to pursue claims before civil courts. Meanwhile, from the defendant's perspective, it may lead to a less severe punishment than what could result from a full trial.
Furthermore, plea bargaining can help alleviate the burden on the court system by allowing the limited resources to be allocated to other more complex and grave cases that require a full trial. Plea bargains are particularly useful in smaller or less significant cases that may not warrant the time and costs associated with a full trial, which can be burdensome for the defendant, the civil claimant, the prosecution and the courts.
The legal framework for the plea-bargaining process is outlined in Articles 360-375 of the CPL and is aimed at avoiding unnecessary litigation. Plea bargains are available for certain types of offences, including both misdemeanours and felonies, provided that the judge who reviews the plea bargain agreement endorses the procedure and the contents of the agreement.
Article 361 makes clear that retributory or blood money offences are excluded, as are offences that undermine state security. Plea bargains also cannot be used for offences that specifically exclude the potential for alternative punishments in the provisions penalising the act.
For offences falling outside the scope of Article 361, the prosecution has the discretion to choose between indicting the offender and proceeding to trial, or offering a more lenient course of action that must be endorsed by the court.
If an offender is accused of a misdemeanour (generally carrying a custodial sentence of between 1-36 months) and the prosecution believes that there is sufficient evidence to go to trial, the prosecutor can instead offer the offender an out-of-court settlement.
What does plea bargaining mean in practical terms? In exchange for an admission of guilt, the offender is offered an alternative or more lenient punishment. There are various types of such punishments under Article 362, including the payment of a lesser fine, the restitution of state funds, community service and prohibitive steps orders. If demanded by the victim, the defendant can be obliged to pay compensation for the damage caused by the offence.
If it is decided that a plea bargain is the most suitable way to deal with a matter, the prosecution will serve the defendant with their proposed offer. The defendant must make a decision to accept or refuse the offer within five days, with a failure to respond being regarded as a refusal.
If the offer is accepted, the prosecution will draw up a report with the details of the case and the proposed offer, and transfer the file with the agreement to the competent court. If the court approves the agreement, the criminal proceedings will be discontinued on the grounds of settlement.
If the accused refuses the offer or if the court does not approve of the proposed agreement, the prosecution will prepare a full trial file and transfer the case to the court in line with the regular procedures.
Where the offender is accused of a felony, the process is largely similar. However, if the offer is accepted and the accused makes an admission of guilt, the agreement is deemed to be a final conviction in the matter rather than the case being discontinued. Benefiting from the plea bargaining, despite the final conviction, the defendant is nevertheless provided with certainty of outcome in terms of a conviction for a less serious offence, as well as a more lenient punishment and lower term of imprisonment.
In conclusion, the introduction of plea bargaining into the UAE justice system is a welcome development that has a number of advantages for the prosecution, the defendant, the civil claimant and the court system as a whole.
For further information,please contact Khalid Al Hamrani and Sharif Jamoos.
Published in November 2023
