Plea Bargain

S14(2) EFCC act, s 339 CPC, Appendix C CPC

What is compounding an offence ?

Sometimes it’s a tripod between the victim, the state and the defendant

S494 ACJA defines plea-bargaining. From here there are two types of bargain: 1) a charge bargain – this relates to the charge that the defendant is charged with, and would lessen the number of counts a defendant will face and 2) a sentence bargain  - this is agreeing on the sentence to be imposed on the defendant. Invariably under the ACJA the court is not involved in the bargaining process. The court must approve such bargain before it becomes a judgment.

‘the process whereby the defendant himself or through his counsel and the prosecutor in a criminal case enter negotiations to agree a mutually acceptable way of disposing the case’ – plea bargaining manual 2016, this manual guides prosecutorial discretion when it comes to plea bargaining

Who can offer to bargain? Both parties. S 270(1)(a) ACJA, 75& 76 ACJL

 Under what circumstances can the prosecution offer to bargain?

 

Statutory recognition before now?

• s 14(2) EFCC act
• FRN V IGBINEDION(2015) 2 NWLR (PT.1444) 475; ROMROG (NIG) ltd v FRN(2015) 2 NWLR (Pt.1445) 62

 

Plea before arraignment – s 270(4)

The prosecutor and the defendant may enter a sentence bargain within the appropriate range of punishment stipulated for the offence

 Charge bargain – a plea to a lesser offence of which he may be convicted on a charge.

 The victim is given the opportunity to make representation to the prosecutor regarding the content of the agreement and the inclusion of a compensation or restitution order - S 270(6)

The presiding judge or magistrate shall not participate in the discussion related to the bargain but the court will confirm the terms of the agreement from the defendant, whether it was entered voluntarily – s 270 (9) (10)

If satisfied, the defendant will be convicted and order of compensation made. It must be voluntary, the court has to ensure there is no undue influence, the credibility of the process has to be ensured.

 If not satisfied, a plea of not guilty will be entered and trial will proceed s. 270 (10)(a)(b). The court is not bound to accept a plea of bargain

After conviction the court

If of the view that the offence requires heavier sentence than the agreed sentence, he will inform the defendant of the heavier sentence he considers appropriate with liberty to the defendant to agree and be sentenced accordingly or withdraw his plea agreement and trial to proceed de novo- s 270 (11) 7 (15)

Trial de novo before another judge – s270(16)

Restitution order may be made at this stage

S270(12)(13)

S270(18)

• Implication of finality of judgement in plea bargain?
• Plea of autrefois convict – s 270(17)

 

Parties to a criminal case

 Complainant and accused/ defendant – parties to a criminal charge

 Parties to be present in a trial. Complainant is different from the victim, the victim is not the complainant in a criminal matter, the complainant is usually the state

Complainant – to be present when case is fixed for hearing.

Effect of absence – S.280 CPL;165 CPC;232 ACJL;351 ACJA if the court is satisfied that the prosecution had due notice of the time and place of the hearing, the court may dismiss the claim/complaint unless the court having received reasonable excuse for the non-appearance or for other sufficient reason deems it fit to adjourn the hearing of the case to some future date on such terms as the court may deem just.

Possible orders the court may make? 232 ACJL

 

Where the defendant is absent:

• The court can issue a bench warrant where the person is on a bail- a bench warrant is issued where there is default
• A reproduction warrant: this is directed to the prison where the defendant is kept if the defendant is not on bail
• Note: a bench warrant and a warrant of arrest are different

Where the complainant is absent:

• Dismiss the case – is it mere discharge or acquittal? It is a mere discharge and not an acquittal Note s165 CPC. The case can be struck out for want of prosecution, if trial has started they may dismiss it, but if its at the beginning stage its only a striking out but the act makes use of the word dismiss.
• Adjourn the case to a later future date upon reasonable excuse and upon terms. S 280 CPL; 232 ACJL; 351 ACJA

 

Accused

• Accused to be present in court at all times.
• You cannot take the plea of an accused/defendant in his absence. The plea must be taken by the defendant
• Trial in absentia unknown to Nigerian law
• ADEOYE V STATE; LAWRENCE V KING
• 352(4) ACJA - under the ACJA the court can go on with a trial where the defendant jumps bail without reasonable explanation and it has granted two adjournments but when sentence is to be imposed the defendant who has been absent during the trial must be present. Note: know the difference in the jurisdictions, the scenario you’re dealing with will determine your response
• s210 CPL; 153 CPC; 208 ACJL; 266 ACJA,

a defendant should be present in court during the whole of his trial unless: (a)he misconducts himself in such a manner as to render his continuing presence impracticable or undesirable; (b)at the hearing of an interlocutory application; or (c)where he authorizes his legal practitioner in writing to represent him in his absence or dispense with his physical presence – s 266 ACJA

• Note exceptions: (dispensing with attendance)
• S 100, 223(2) CPL; 154(2), 320 CPC; 217 ACJL; 135,352 ACJA
• On the question of determining the sanity of the defendant to take his trial under s 135 ACJA, then his attendance can be disposed of for the purpose of determining if he is sane or not .
• Know the difference between taking a plea and presence during trial

 

Dispensing with attendance

 

Non-appearance of both parties – S 282(1) CPL; 236 ACJL When a case is called and neither the prosecutor nor the defendant appears, the Court shall make such order as the Justice of the case requires.

Arraignment

Meaning – process of taking the plea of an accused to the charge before the court

Arraignment is the beginning or commencement of a criminal trial – Grange v FRN; FAWEHINMI V IGP

 

PROCEDURE

• The accused must be placed before the court unfettered in the dock (plea in the dock)- s 269 ACJA
• The charge or information read over and explained to the accused in the language that he understands to the satisfaction of the court by the registrar of court or other officer of court.
• The accused to be called upon to plead instantly to the charge
• S 215 CPL; 187(1)CPC; 211 ACJL; 269, 271, 356(1)(8) ACJA

 

The registrar is to first ask the defendant if he understands English language and if not what language he understands.

When the defendant refuses to plead, The obligation is on the court to find out why the defendant is refusing to plead, if the defendant gives a reason and the court is unsatisfied and feels that reason is not tenable the court record not guilty.

 

Refusal to plead

• A deliberate withholding of plea
• Court to ask accused reasons for refusing to plead and examine the reasons
• If reasons invalid, accused asked to plead
• If still refuses, plea of not guilty to be entered and trial to proceed – GAJI V STATE; S 215 ACJL; 220 CPL; 188 CPC; 276 ACJA

 

Standing mute

• Silent, not-speaking
• If accused stands mute, he is silent and does not speak
• Court to investigate the cause of muteness – out of malice or natural causes (visitation of God)
• Medical or other evidence to determine
• S 220 & 223 CPL; 188 CPC; 215,217,218 ACJL; 276 ACJA
• If malice – not guilty plea; if natural causes (act of God) detained at Governor’s pleasure – YESUFU V STATE
• Enquiry into state of mind – s 276 (3)(4) ACJA

The court to investigate to the ordinary cause of muteness 

It would be out of malice if its anything negative, so he has the capacity to plead but juts refusing to plead

 

Taking of plea

• All pleas must be taken in person by the accused
• Where there are several accused persons, each must take plea individually – ADAMU V STATE
• No “proxy’ plea – no one can plead for you
• Counsel cannot plead on behalf of accused – R v PEPPLE
• No block plea where several counts – AYINDE V STATE
• Charge of several counts can be READ TO ALL JOINTLY BUT must be pleaded separately

 

Options open to an accused upon arraignment

The way an accused will react upon taking of plea:

1. Preliminary objection –

• Lack of jurisdiction – AG FED V ABUBAKAR
• Defect in charges – s 166 & 167 CPL; 158 ACJL

 

Plea of guilty to another offence not charged

The court can convict subject to:

1. Jurisdiction over the offence
2. Consent of the prosecutor
3. Court accepts plea

If the court rejects the plea for the new offence and proceeds to trial for the earlier offence, it cannot go back to convicting for the new offence admitted.

If prosecution agrees and court satisfied of guilt, to convict on the offence admitted

s.219 CPL; 214 ACJL ; R V KELLY