By Larry C. Nkwor
Settlement is a resolution between the parties in a Legal action reached either before or after court action begins. Once the settlement is accepted by the Court, it brings the action to an end. Settlement out of Court is usually refereed to as Alternative dispute resolution (ADR). ADR helps parties resolve their differences without resorting to a more confrontational adjudicative process. It takes into consideration the needs, interests, and solutions, and it can also accelerate healing. It is mostly applicable to Civil cases. The adoption of ADR in criminal cases has been supported by many researchers. There are arguments both for and against with regard to ADR in criminal Justice system because the criminal justice system emphasizes the role of the state in resolving offences to ensure peace and to protect the life and property of its subjects.
Is Settlement Possible in Criminal Cases?
Settlement in criminal cases may be possible depending on the law in force in a particular jurisdiction. It is usually applicable to offenders who have admitted the offence. The most common form of settlement in Criminal cases is Plea Bargain. Settlement in criminal cases can be achieved in the following ways:
1) Plea Bargain
2) Victim-Offender Mediation
3) Prosecutorial Discretion
Plea bargain is any agreement in a criminal case whereby the defendants agree to plead guilty to a less serious charge or to one of several charges in return for the dismissal of other charges or it may mean that the defendant will plead guilty to the original charge in return for a more lenient sentence. Thus, plea bargain may be as to charge or as to sentence. The parties involved in a plea bargain are usually the Prosecutor, Defendant and Victim. In Nigerian law, the enabling provision of the law for plea bargains can be found in Section 270 of the Administration of Criminal Justice Act, 2015.
The law in subsection 1 provides that –
“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
The practice of plea bargaining is also expressly provided for by the Economic and Financial Crimes Commission Act and the Administration of Criminal Justice Law of Lagos State, 2015.
Another form of settlement in criminal cases is the Victim-Offender mediation. It is a process that provides interested victims (primarily those of property crimes and minor assaults) the opportunity to meet their offenders in a safe and structured setting. The goal is to hold offenders directly accountable for their actions while providing important support and assistance to victims. With the assistance of the mediator, the victims are able to let the offenders know how the crime affected them, receive answers to their questions, and be directly involved in developing a restitution plan that holds the offenders financially accountable for the losses they caused. For instance, if money was stolen by the offender, the money may be returned by the offender to the victim and the case gets settled. This is not however applicable to all kind of offences. It is not applicable to homicide and other grevious offences. The Victim-Offender mediation is not a common form of settlement in most Jursidictions. Lagos state has introduced the Victim-Offender mediation into it's criminal justice system. This is provided for in Section 15(2). of Criminal Law of Lagos State 2015. The Victim-Offender Mediation is a clear expression of restorative justice.
The Constitution of the Federal Republic of Nigeria confers prosecutorial powers on the Attorney General of the Federation and of a State in section 174 and section 211 respectively. The respective Attorneys General have power to institute, conduct, continue, take over and discontinue criminal proceedings in any court except a court martial. The powers conferred on the Attorney General can be exercised by him in person or through officers of his department. The Attorney General in the exercise of his prosecutorial powers shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process. Thus, the Attorney General in exercise of his constitutional powers may settle or compound any case before or during trial.
The Need for Settlement in Criminal Cases
1) Settlement in criminal cases allows adequate justice for the victim. What is the idea of justice. If there is no forum for settlement in criminal cases, then the notion of justice would only be for the State. What justice would be done to the victim. For instance, if a person accused of stealing a large sum of money is prosecuted and convicted, the money stolen will not be returned to the victim, that is justice for the State. Settlement allows restitution for the Victim. This can be achieved when the Victim and offender settle out of Court; the Offender agrees to return the stolen money so that the case against him can be withdrawn by the prosecution. Here, it is safe to say that there would be adequate justice for the victim. The victim would rather have his money returned than the offender being convicted.
2) The trial and appeals can take years. If Settlement is utilized more often it will serve as a means of reducing the time and cost to government of prosecuting an alleged offender. it will therefore ensure a smoother and faster administration of justice process.
3) Conviction is unpredictable at trial. Settlement can be an effective tool when there is uncertainty of conviction by the prosecution. This is obtainable when the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt.
4) Trials are Stressful. The process can be extremely stressful for everyone involved. The Victim and the Defendant can be subjected to examination and cross-examination on the witness stand, and have their character and past publicly scrutinized.
In recent years, Criminal Justice systems have leaned towards the adoption of ADR in criminal cases. There is the need for the adoption of mechanisms and practices that will help decongest the Courts of cases and ensure a smoother and faster administration of Justice. The advantages of settlement in criminal cases should continue to be emphasized to encourage the growth and further awareness of the importance of ADR in our criminal justice system. Settlement encourages restitutive and restorative justice. Settlement is therefore justice from another perspective.
Sunbola M.A., "An Overview of the Evolution of Criminal Arbitration and Plea Bargaining in Nigeria", p.1 , pp. 19 - 20.
Nwosu K.N., "Criminal Justice Reforms in Nigeria: The Imperrative Of Fast Track Trials; Plea Bargains; Non-Custodial Options and Restorative Justice", p.9.