Section 270: Plea bargain guidelines

(1) 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 directly from that defendant or on his behalf;
(b) offer a plea bargain to a defendant charged with an offence.
(2) 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:
(a) the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt;
(b) where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or
(c) where 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.
(3) Where the prosecutor is of the view that the offer or acceptance of 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.
(4) The prosecutor and the defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of:
(a) the term of the plea bargain which may include the sen-tence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to the offence(s) charged or a lesser offence of which he may be convicted on the charge; and
(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.
(5) The prosecutor may only enter into an agreement contemplated in subsection (3) of this section:
(a) after consultation with the police 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.
Provided that in determining whether it is in the public interest to enter into a plea bargain, the prosecution shall weigh all relevant factors, including:
(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 trial, 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 pending cases; and
(viii) the expense of trial and appeal.
(ix) the defendant's willingness to make restitution or pay compensation to the victim where appropriate.
(6) The prosecution shall afford the victim or his representative the opportunity to make representations to the prosecutor regarding:
(a) the content of the agreement; and
(b) the inclusion in the agreement of a compensation or restitution order.
(7) An agreement between the parties contemplated in subsection (3) shall be reduced to writing and shall:
(a) state that, before conclusion of the agreement, the defen¬dant has been informed:
(i) that he has a right to remain silent;
(ii) of the consequences of not remaining silent;
(iii) that he is not obliged to make any confession or ad-mis¬sion that could be used in evidence against him
(b) state fully, the terms of the agreement and any admission made, and
(c) be signed by the prosecutor, the defendant, the legal practitioner and the interpreter, as the case may be.
(d) A copy of the agreement signed by the parties in paragraph (c) of subsection (6) of this section shall be forwarded to the Attorney-General of the Federation.
(8) The presiding judge or magistrate before whom the criminal proceedings are pending shall not participate in the discussion contemplated in subsection (3) of this section.
(9) Where a plea 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.
(10) 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 agreement voluntarily and without undue influence and may where:
(a) 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 this Act; or
(b) 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 subsection (6) of this section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.
(11) Where a defendant has been convicted in terms of subsection (9) (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; or
(b) of the view that he would have imposed a lesser sentence than the sentence agreed, impose the lesser sentence; or
(c) of the view that the offence requires a heavier sen-tence than the sentence agreed upon, he shall inform the defendant of such heavier sentence he considers to be appropriate.
(12) The presiding Judge or Magistrate shall make an order that any money, asset or property agreed to be forfeited under the plea bargain shall be transferred to and vest in the victim or his representative or any other person as may be appropriate or reasonably feasible.
(13) Notwithstanding the provisions of the Sheriffs and Civil Process Act, the prosecutor shall 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.
(14) Any person who willfully and without just cause obstructs or impedes the vesting or transfer of any money, asset or property under this Act shall be guilty of an offence and liable to imprisonment for 7 years without an option of fine.
(15) Where the defendant has been informed of the heavier sentence as contemplated in subsection (11) (c) above, 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.
(16) Where a 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 references shall be made to the agreement;
(b) no admission contained therein or statements 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.
(17) Where a person is convicted and sentenced under the provisions of subsection (1) of this section, 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.
(18) The judgment of the court contemplated in subsection 10(a) of this section shall be final and no appeal shall lie in any court against such judgment, except where fraud is alleged.