THE CONCEPT OF PLEA BARGAIN UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT,

2015.

Being paper presented by Iwuagwu O. Golden Esq. at the training workshop for

staff of the commission on the ACJA 2015.

AIM:

• The aim of this presentation is to consider the concept of Plea Bargain in our criminal jurisprudence by looking at its evolvement over the years viz-a-viz statutory provisions that has formalized its use in criminal trials.

DEFINITION:

• The term "Plea Bargain" comes from two distinct words "Plea" and "Bargain". The word "plea" has been defined to mean "the formal response of an accused person to a charge which is either a plea of guilty or not guilty.

• The word "Bargain" literally means negotiating a settlement and has been defined in law to mean an agreement of two or more persons to exchange promise or to exchange a promise for a performance.

Definition contd.

• Put together, the Black's Law Dictionary has defined Plea Bargain thus:

• "A negotiated agreement between a prosecutor and a criminal defendant who pleads guilty to a lesser offence or to one or more multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of other charges".

EVOLUTION OF THE CONCEPT OF PLEA BARGAIN:

• In traditional African societies, the use of plea bargain has been employed although in an informal way. Persons who were accused of offences would usually receive lesser punishment if they confess to the commission of the crime.

EVOLUTION contd.

• Formally the concept gained currency in the early 19th century when the need to obviate with the delays occasioned by legal technicalities witnessed in adversarial system of trial and the fact that the burden on taxpayers money spent on criminal prosecution became unbearable.

• Securing conviction in otherwise simple criminal trial became an uphill task to the end that several accused persons were saved the pain of physical contact with prison gates. Plea Bargain therefore emerged as a compromise to ensure that criminals were adequately punished.

EVOLUTION contd.

• In most common law jurisdictions, the concept has been applied to the end that a large chunk of convictions come from Plea Bargain. This is the situation in the United States of America where about 95% of convictions derive from the application of plea bargain.

• In 1970 the American Supreme Court in the case of Brady V. United States 397 U.S. 742 pronounced on the constitutionality of the concept.

EVOLUTION contd.

• In Nigeria, the concept found statutory emergence through the Economic and Financial Crimes Commission (Establishment) Act No. 1 of 2004. In Section 14 (2) the Act provides thus:

• • "Subject to the provisions of section 174 of the Constitution of the

Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney General of the Federation to institute, continue, take over or discontinue criminal proceedings against any person or in any court of law, the Commission may compound any offence punishable under the Act by accepting such sum of money as it thinks fit, not exceeding the maximum amount to which such person may be liable if he had been convicted of that offence"

•

EVOLUTION contd.

• The word “compounding” as used in the EFCC Act refers to the powers of the EFCC to drop some of the charges if the defendant is prepared to give up such sums of money as the EFCC deem fit.

• Cruising on this altitude, the EFCC has used it in several cases including that of the former Inspector General of Police, Mr. Tafa Balogun, former MD of the then Oceanic Bank PLC, Mrs. Cecelia Ibru, Chief Lucky Igbenidion, former Governor of Edo State.

RATIONALE FOR THE USE OF PLEA BARGAIN:

• It is common knowledge that criminal trials in Nigeria particularly corruption cases have witnessed undue delays occasioned by either interlocutory applications or delay tactics employed by defence lawyers to the end that cases last for over ten years in court.

RATIONALE contd.

• The attendant result is that witnesses cannot be reached because they have died, relocated or forgotten facts of the case coupled with the huge cost on the lean resource of the state. In some instances the trial judge may have been transferred or elevated.

• These difficulties paved the way for the use and application of plea bargain.

STATUTORY PROVISIONS: (ACJA 2015)WHO CAN MAKE THE OFFER; S. 270 (1)

• The subsection provides thus:• "Notwithstanding anything in this Act or in any

other law, the Prosecutor may:• (a). receive and consider a plea bargain from

a defendant charged with an offence either from that defendant or on his behalf;

• (b). offer a plea bargain to a defendant charged with an offence.

TIME TO PLEA BARGAIN S. 270 (2)

• The prosecutor is mandated to enter into the plea bargain with the consent of the victim or his representative during or after the presentation of the evidence of the prosecution but before the presentation of the case of the defence. In agreeing to entertain the plea bargain offer under Section 270 (2) of the Act, the prosecutor is under duty to ensure without fail that the following conditions are present:

CONDITIONS PRECEDENT FOR PLEA BARGAIN. S. 270 (2) (a) – (c).

• The conditions are that;• (a) that the evidence of the prosecution is insufficient

to prove the offence charged beyond reasonable doubt,• (b) that the defendant has agreed to return the

proceeds of the crime or make restitution to the victim or his representative,

• (c) the defendant where the case is one of conspiracy has fully cooperated with investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.

FACTORS TO CONSIDER S. 270 (3).

• The prosecution in offering or accepting a plea bargain must do so in the interest of justice, the public interest, public policy and the need to prevent the abuse of the legal process.

•

WHAT THE PARTIES MUST RESOLVE. S. 270 (4) (a) – (b).

• Both parties must before plea to the charge agree in respect of:

• (a). the term of the plea bargain which may include the sentence recommended

within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge.

WHAT THE PARTIES MUST RESOLVE. S. 270 (4) (a) – (b) contd.

• (b) an appropriate sentence to be imposed by the Court where the defendant is convicted of the offence to which he intends to plead guilty.

•

FURTHER STEPS TO BE TAKEN BY THE PROSECUTOR. S. 270 (5) (a) & (b).

• The prosecutor may only enter into an arrangement as contemplated in Subsection 3 above after he has taken the following steps.

• (a) after consultation with the police or investigator responsible for the investigation of the case and the victim or his representative, and

• (b) With due regard to the nature of and circumstances relating to the offence, the defendant and public interest.

PUBLIC INTEREST: (proviso to S 270 (5) (b).

• In determining whether it is in the public interest to enter into a plea bargain, the prosecutor is enjoined to weigh the following relevant factors:

• (i) the defendant’s willingness to cooperate in the investigation or prosecution of others

• (ii) the defendant’s history with respect to criminal activity,• (iii) the defendant’s remorse or contrition and his willingness to assume

responsibility for his conduct,• (iv) the desirability of prompt and certain disposition of the case,• (v) the likelihood of obtaining a conviction at the trial and the probable

effect on witnesses,• (vi) the probable sentence or other consequences if the defendant is convicted,• (vii) the need to avoid delay in the disposition of other cases,• (viii) the expense of trial and appeal, and • (ix) the defendant’s willingness to make restitution or pay compensation

– to the victim where appropriate.

PARTICIPATION BY THE VICTIM OR HIS REPRESENTATIVE; S. 270 (6)

• Here the prosecutor shall ensure that the victim or his representative has the opportunity to make representations regarding:

• The content of the agreement, and • The inclusion in the agreement of a

compensation or restitution order.

REDUCTION IN WRITING: S. 270 (7)

• An agreement between the parties contemplated in subsection (3) of this section shall be reduced to writing and shall

• (a) State that before conclusion of the agreement, the defendant has been informed:

(i) that he has a right to remain silent,– (ii) of the consequence of not remaining silent, and – (iii) that he is not obliged to make any confession or admission that

could be used in evidence against him;• (b) state fully the terms of the agreement and any admission made;• (c) be signed by the prosecutor, the defendant, the legal practitioner and

the interpreter as the case may be, and • (d) a copy of the agreement forwarded to the Attorney-General of the

Federation

EXCLUSION OF THE JUDGE OR MAGISTRATE: S. 270 (8).

• The Judge or Magistrate before whom • the criminal proceeding is pending shall• not participate in the discussion• contemplated in S. 270 (3).

CONFIRMATION OF THE AGREEMENT BY THE DEFENDANT. S. 270 (9)

• • Upon conclusion of the agreement between • the prosecution and the defence, the

prosecutor shall inform the court that the parties have reached an agreement and the presiding judge or magistrate shall then inquire from the defendant to confirm the terms of the agreement.

DUTIES OF THE JUDGE UNDER S. 270 (10) (a) & (b).

• Under the forgoing subsection, the Judge or Magistrate shall ascertain from the defendant if he admits the allegation in the charge to which he has pleaded guilty and whether he did so voluntarily and without undue influence and may do the following;

• (a) if he is satisfied that the Defendant is guilty of the offence to which he has pleaded guilty, convict him based on his plea and shall award compensation to the victim in accordance with the terms of the

agreement which shall be delivered by the court in accordance with section 308 of this Act; or

DUTIES OF THE JUDGE cont. S. 270 (10) (b)

• Where for any reason he is of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s right referred to subsection (6) of this section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.

•

DUTIES OF THE JUDGE contd. (SENTENCING) S. 270 (11).

• Where the defendant has been convicted under subsection (10) (a), the presiding judge or magistrate shall consider the sentence as agreed upon and where he is:

• (a) satisfied that such sentence is an appropriate sentence, impose the sentence,

• (b) of the view that he would have imposed a lesser sentence that the sentence agreed, impose the lesser sentence; or

• (c) of the view that the offence requires a heavier sentence that the sentence agreed upon, he shall inform the defendant of

such heavier sentence he considers appropriate. •

DUTIES OF THE JUDGE contd. (APPROPRIATE ORDER TO MAKE;

S. 270 (12)

• The presiding Judge or magistrate shall make an order that any money, asset to be forfeited under the plea bargain shall be transferred to and vest in the victim or his representative or any person as may be appropriate or reasonably feasible

EXECUTION OF THE TERMS OF THE AGREEMENT: S. 270 (13).

• It is the duty of the prosecutor under the Act to take reasonable steps to ensure that any money, asset or property agreed to be forfeited or returned by the offender under a plea bargain are transferred to or vested in the victim, his representative or other person lawfully entitled to it notwithstanding the provisions of the Sheriff and Civil process Act.

• This is because the responsibility on the prosecutor under this subsection which is that of enforcing the terms of the agreement is ordinarily that of the Sheriff under the Sheriff and Civil Process Act.

PENALTY FOR REFUSAL TO COMPLY: S. 270 (14).

• Any person who willfully and without just cause obstructs or impedes the vesting or transfer of any money, asset or property under the Act commits an offence and is liable on conviction to imprisonment for 7 years without an option of fine

OPTIONS OPEN TO THE DEFENDANT: S.270 (15).

• Where the defendant is informed by the court of the heavier sentence as contemplated in subsection (11) (c) of this section, he may elect to do either of the following:

• (a) abide by his plea of guilty as agreed upon and agree that subject to the defendant’s right to lead evidence and to present argument relevant to the sentencing, the presiding judge or magistrate proceeding with the sentencing; or

• (b) withdraw from his plea agreement, in which case• the trial shall proceed de novo before another judge or

magistrate as the case may be.

TRIAL DE NOVO: S. 270 (16)

• Where trial proceeds as contemplated under subsection (15) (a) or de novo before another presiding judge or magistrate as contemplated in subsection (15) (b)

• (a) no reference shall be made to the agreement;

• (b) no admission contained therein or statement relating thereto shall be admissible against the defendant; and

• (c) the prosecutor and the defendant may not enter into a similar plea and sentence agreement.

NO FUTURE TRIAL ON THE SAME OFFENCE: S. 270 (17).

• Any person who has been convicted and sentenced under the provisions of subsection (1) of this section shall not be charged or tried again on the same facts for the greater offence earlier charged to which he has pleaded to a lesser offence.

NO RIGHT OF APPEAL: S. 270 (18)

• The judgment of the court contemplated un-der subsection (10) of this section shall be fi-nal and no appeal shall lie in any court against such judgment except fraud is alleged.

•

APPLICATION BY THE COMMISSION:

• The Commission relying on the provisions of the Administration of Criminal Justice Law of Lagos State, 2011 which is similar to the ACJA 2015 has upon been approached by the defendants secured convictions. We refer to the cases of;

• Federal Republic of Nigeria V. Helen Bando & Ors (Charge No: ID/418C/2013)

• Federal Republic of Nigeria V. Daniel Okoro (Charge No: ID/412C/2013),• • Federal Republic of Nigeria V. Okwara Chidera Oscar, Kennedy Nwosu & Eddie

Ehiane (Charge No: 1D/41C/2013).• • In the said cases defendants who were charged for falsification of documents

submitted at the Indian High Commission for the purpose of securing Indian travel visa contrary to Section 17 (1) (c) of the ICPC Act were sentenced to compulsory one year imprisonment without an option of fine.

DOMESTICATION OF PLEA BARGAIN IN THE LAWS OF THE STATES:

• So far available records show that Lagos, Ekiti and Anambra States have in the respective Administration of Criminal Justice Laws provided for plea bargain. See for instance Sections 75 & 76 of the Administration of Criminal Justice Law of Lagos State, 2011.

CONCLUSION:

• The concept of plea bargain as we have discussed no doubt is expected to enhance speedy dispensation of justice, however the prosecutor who represents the interest of the state as well as that of the victim should play according to the rules bearing in mind the interest of justice, public interest and public policy.

• Thank you for listening.