AGBI v. F. R. N.: Plea bargain- On whether the presiding Judge/Magistrate is bound by the plea bargain agreement entered by the prosecutor and the defendant: An insight into the Court of Appeal landmark decision. Citation: [2020]15 NWLR PT.1748 at PG. 416. Courtesy: Moruff O. Balogun Esq.

Summary of facts:

On 18th July 2019, the appellant was arraigned at the High Court of Federal Capital Territory, Abuja on a one-count charge of offence of cheating by fraudulently obtaining the sum of $1,000 from three citizens of the United States of America. The charge was accompanied with a summary of evidence of witnesses and a plea bargain agreement entered into and executed by the parties.
The plea bargain agreement was dated 27th June 2019 wherein the appellant agreed to enter a plea of guilt to the charge and to forfeit the entire proceeds of his crime. The parties agreed that upon conviction, the appellant shall be sentenced to a term of one month imprisonment or given an option of fine.

On 24th July 2019, the plea of the appellant was taken. He pleaded guilty to the offence. The prosecution then called the attention of the trial court to the plea bargain agreement attached to the charge and urged the trial court to give effect to the agreement in convicting and sentencing the appellant.

Pursuant to the appellant’s plea of guilt and the plea bargain agreement, the trial court convicted the appellant as charged and ordered that he be remanded in prison custody. However, it deferred the sentence to 29th July 2019.

In sentencing the appellant, the trial court held that the term of one month imprisonment the parties agreed to was ridiculous and that the court was not bound to follow the plea bargain agreement in toto. It held that cyber crimes dent the image and affect the integrity of Nigeria and that the Cyber Crimes (Protection and Prohibition) Act provides for harsh and appropriate punishment for the crimes. The trial court, relying on section 270(11)(C) of the Administration of Criminal Justice Act, 2015, sentenced the appellant to three years imprisonment.
Aggrieved, the appellant appealed to the Court of Appeal.

Held : (Unanimously allowing the appeal):

The Court of Appeal raised and considered the following issues:

On Duties of prosecutor and court where plea bargaining agreement reached-
By virtue of section 270(9) and (10) of the Administration of Criminal Justice Act 2015, where a plea bargaining agreement is reached by 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. The presiding judge or magistrate shall ascertain whether the defendant admits the allegation in the charge to which he has pleaded guilty and whether he entered into the plea bargaining agreement voluntarily and without undue influence and may where-
he is satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence and shall award the compensation to the victim in accordance with the term of the agreement which shall be delivered by the court in accordance with section 308 of the Act; or
he is for any reason 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 in section 270(6), he shall record a plea of not guilty in respect of such charge and order that the trial proceed.

On Power of court to examine plea bargain agreement to ascertain whether defendant admits allegation contained in charge and whether he entered into agreement voluntarily –
Notwithstanding that the trial court is not a party to a plea bargain agreement, the Administration of Criminal Justice Act, 2015 nonetheless empowers and endows a trial court with limited jurisdiction and powers to examine the plea bargain agreement critically pursuant to section 270(10) of the Act in order to ascertain whether the defendant admits the allegation contained in the charge to which he has pleaded guilty and whether the defendant entered into the agreement voluntarily and without undue influence. The Presiding Judge or Magistrate, in addition to his power to convict a defendant, also has authority to award compensation to the victim as per the terms of the plea bargain agreement. All these are to ensure that there is no collusion between the prosecutor and defendant to defeat the purpose and intendment of section 270 of the Act. It is also to ensure that the parties do not enter into unconscionable bargain that will be injurious or inimical to the interest of the victim of the offence and must ensure there is provision in the agreement for restitution. It is also designed to forestall any bargain that is illegal or against public policy.

On Power of court to examine and evaluate sentence agreed in plea bargaining agreement –
The Presiding Judge or Magistrate is entitled to examine consider and evaluate the sentence agreed upon by the prosecutor and the defendant in a plea bargaining agreement. Where it appears to the Presiding Judge or Magistrate that the sentence agreed upon is not commensurate with the gravity of the offence committed, he can impose a heavier punishment, subject to the condition prescribed or laid down in section 270(11)(c) of the Administration of Criminal Justice Act, 2015.

On Options available to defendant where informed of heavier sentence court intends to impose upon plea bargaining agreement-
By virtue of section 270(15) and (16) of the Administration of Criminal Justice Act, 2015, where the defendant has been informed of the heavier sentence as contemplated in section 270(11) (c), the defendant may:
(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 sentencing, the presiding judge or magistrate proceed with the sentencing; or
(b) withdraw from his plea agreement, in which event the trial shall proceed de novo before another presiding Judge or Magistrate, as the case may be.

Where a trial proceeds as contemplated under section 270(15)(a) or de novo before another presiding judge or magistrate as contemplated in section 270(15)(b):
no references shall be made to the plea bargaining agreement;
no admission contained therein or statements relating thereto shall be admissible against the defendant; and
the prosecutor and the defendant may not enter into a similar plea and sentence agreement.

On finality of judgment based on plea bargaining agreement-
By virtue of section 270(18) of the Administration of Criminal Justice Act, 2015, the judgment of the court contemplated in section 270(10)(a) shall be final and no appeal shall lie in any court against such judgment except where fraud is alleged.

On Effect where person convicted and sentenced upon plea bargaining agreement-
By virtue of section 270(17) of the Administration of Criminal Justice Act, 2015, where a person is convicted and sentenced under the provisions of section 270(1), he shall not be charged or tried again on the same facts for the greater offence earlier charged to which he had pleaded to a lesser offence.

On Purpose of Administration of Criminal Justice Act, 2015 –
By virtue of section 1 of the Administration of Criminal Justice Act, 2015, the purpose of the Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant and the victim. The courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of the Act for the realisation of its purposes.

On Duty on prosecutor where plea bargain agreement executed-
Upon execution of a plea bargain agreement, the prosecutor would at trial inform the court or the trial Judge of the agreement and request the trial court to sanction the agreement and make the terms and conditions therein the judgment of the court in the trial, particularly the lighter sentence offered to the defendant by the prosecution, having regard to the fact that the defendant has saved the prosecution and the court valuable time that would have been expended in trying the offence(s) for which the defendant is charged.

On Power of prosecutor to receive and consider or offer plea bargain and conditions therefor-
By virtue of section 270(1) and (2) of the Administration of Criminal Justice Act 2015, notwithstanding anything in the Act or in any other law, the prosecutor may:
receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf; or
offer a plea bargain to a defendant charged with an offence.
The prosecution may enter into plea bargaining with the defendant, 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 evidence of the defence, provided that all of the following conditions are present-
the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt;
the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or
the defendant, in a case of conspiracy, has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.

On When prosecutor can offer or accept plea bargain-
By virtue of section 270(3) of the Administration of Criminal Justice Act 2015, where the prosecutor is of the view that the offer or acceptance or a plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain.

On What plea bargaining agreement must evince –
A plea bargain agreement must evince a legal intention to accommodate the defendant to obtain lesser punishment in terms of sentence to imprisonment or a fine against the defendant. Some of the essential ingredients of plea bargain are that defendant must acknowledge commission of the crime charged, plead guilty to it and must be convicted by the Presiding Judge whether at magisterial level or a High Court.

On Nature of plea bargain –
Plea bargaining is an innovation of the law for the benefit of the defendant, the prosecutor, the victim of the offence and the society at large. In most cases, the accused/defendant would forfeit all proceeds of the crime and where the properties acquired with the proceeds of crime for which the defendant is arraigned have not been dissipated, they would be forfeited to the State and given back to the victim of the crime in restitution and such victim may be the government, authority, organisation or individuals.

On Duty on prosecution to allow victim to make representation to it in respect of plea bargain agreement and what agreement must contain –
By virtue of section 270(6), (7) and (8) of the Administration of Criminal Justice Act, 2015, the prosecution shall afford the victim or his representative the opportunity to make representations to the prosecutor regarding-
the content of a plea bargaining agreement; and
the inclusion in the agreement of a compensation or restitution order

A plea bargaining agreement shall be reduced to writing and shall:
state that, before conclusion of the agreement, the defendant has been informed:
that he has a right to remain silent;
of the consequences of not remaining silent; and that he is not obliged to make any confession or admission that could be used in evidence against him;
state fully the terms of the agreement and any admission made;
be signed by the prosecutor, the defendant, the legal practitioner and the interpreter, as the case may be; and a copy of the agreement forwarded to the Attorney-General of the Federation.
The Presiding Judge or Magistrate before whom a criminal proceeding is pending shall not participate in a discussion for plea bargaining.

On Need to strictly comply with provision of statute where provides for particular way or method of doing anything-

Where a statute provided for the method of doing anything, it must be done in accordance with the express provision of the statute. When a law provides a particular way/method of doing a thing and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.