The Concept Of Plea Bargain

By Adedayo Samuel Adesheila

According to Black’s Law Dictionary ninth edition, plea bargain is a negotiation between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges.

It is also important to emphasize that plea bargain was alien to criminal justice administration in Nigeria but was introduced into our justice system by the virtue of Section 14(2) of the Economic and Financial Crimes Act, the said Section 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, takeover or discontinue criminal proceedings against any person in any Court of law), the Commission may compound any offence punishable under this Act by accepting such sum of money as it thinks fit not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.

Plea bargain as a concept originated from the American jurisprudence and became established in the case of Robert M. Brady v. United States 397 U.S 742 (90 S. Ct.1463, 25 L.Ed. 2d 747). Permit me to state that plea bargain can be said to be a form of pre-trial negotiations between the Defendant and the prosecution during which the Defendant agrees to plead guilty in exchange for certain concessions by the prosecution.

Plea Bargain is a deal offered by the prosecutor to induce the defendant to plead guilty in-order to avoid the full trial which might takes years. It is my humble believe that in an attempt to reduce the delay in disposing criminal cases, the National Assembly introduce plea bargain by virtue of Section 14 of the Economic and Financial Crimes Act as an alternative method to deal with huge arrears of criminal cases.

The arrangement usually involves the prosecutor, the accused and the court. The parties negotiate, subject to the approval of the court. Lagos State was the first state to localize the plea bargain system in Nigeria. Sections 75 & 76 of the Administration of Criminal Justice Law of Lagos State provides as follows: 75. Notwithstanding anything in this law or in any other law, the Attorney-General of the State shall have the power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process and 76.(1) The prosecutor and a defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of- (a) A plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge. (b) An appropriate sentence to be imposed by the Court if the defendant is convicted of the offence to which he intends to plead guilty. (2) The prosecutor may only enter into an agreement contemplated in subsection (1) of this Section- (a) after consultation with the Police Officer responsible for the investigation of the case and if reasonably feasible, the victim and (b) with due regard to the nature of and circumstances relating to the offence, the defendant and the interests of the community. (3) The prosecutor, if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding- (a) the contents of the agreement, and (b) the inclusion in the agreement of a compensation or restitution order (4) An agreement between the parties contemplated in subsection (1) shall be in writing and shall be signed. (5) The presiding Judge, or Magistrate before whom criminal proceedings are pending shall not participate in the discourse contemplated in subsection (1): Provided that he may be approached by the counsel regarding the contents of the discussions and he may inform them in general terms of the possible advantages of the discussions, possible sentencing options or the acceptability of a proposed agreement. (6) Where a plea agreement is reached by the prosecution and 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 correctness of the agreement.

The apex court of the land when enunciating the concept of plea bargain in the case of PML (NIG) LTD v. FRN (2017) LPELR-43480(SC) held thus:

Plea bargain boils down to a negotiation between an Accused and the Prosecution, in which the Accused agrees to plead “guilty to some crimes in return for reduction of the severity of the charges, dismissal of some of the charges, and the Prosecutor’s willingness to recommend a particular sentence or other benefit to the accused.

Though the question been raised in some quarters is whether plea bargain has not derogated from the concept of not allowing any person who has break the law from going scot free, the court in the case of PML (NIGERIA) LTD v. FRN (2014) LPELR-22767(CA) at the court of appeal of the above earlier mentioned case, the penultimate court stated thus:

The concept of plea bargain has in no way derogated from the purpose or objective of criminal prosecution given the fact that before an accused can benefit from the arrangement the accused in question must plead guilty to some form of offence and of course be convicted for what he has pleaded guilty to.

It is on the premises above I conclude this piece of mine that the concept of plea bargain is a welcome development to our jurisprudence, but we always forget when coping some of all this laws to check our domestic affairs and the attitude of our people towards certain idea before incorporating verbatim, modification where necessary should be looked into before passage. I realized that since the dispensation of Ibrahim Magu as the Acting Chairman of the anti-graft commission he has put a stop to the commission putting forward plea bargain unless introduce by the court, this is the unforeseen circumstances that our laws always face, we must strive to improve on the legislature so that one man who wakes up on the wrong side would not determine the tone of the law.

Adedayo Samuel Adesheila is an Associate in the law firm of Neplus Ultra.