REFORMS TO ENHANCE SPEEDY INVESTIGATION OF CRIMINAL CASES; BASIC

REFORMS TO ENHANCE SPEEDY INVESTIGATION OF CRIMINAL CASES; BASIC PRE-TRIAL ISSUES Chiamaka Anyaegbu Centre for Socio-Legal Studies

Expected Outcome At the end of the presentation, trainees will be able to explain the changes made in 1. the way suspects are investigated, searched, documented and detained; 2. The safeguards introduced to ensure that remand detention is not abused or prolonged; 3. Preparation of charges.

Arrest/Investigation A suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt. S.3 of ACJA. In the exercise of the power conferred on the police by S. 4 of Police Act, it is entitled to question anybody in an investigation.

Section 4 Police Act In Oboman v Georgewill (2018) All FWLR (Pt. 957) 867 at 884, the Court of Appeal, considering section 4 of the Police Act held as follows: “By the provision of section 4 of the Police Act, the police have inter alia, the duty to detect crimes. Every act of the police is called investigation. In the exercise of the power conferred on it, the police is entitled to question anybody in making an inquiry or an investigation.”

Should arrest come before investigation? Or should investigation come before arrest? S. 3 of ACJA seems to suggest a suspect may be arrested and then investigated, inquired into, tried, etc. No hard and fast rule- Sometimes arrest may come before investigation and vice versa. While performing this statutory duty the police must observe the arrest protocols and human rights protection protocols contained in the ACJA

Arrest Protocols: Notification of arrest, S. 6 No unnecessary restraint. S. 5 Miranda rights . S. 6 Mandatory recording of personal data of arrested persons: S.15

Arrest Protocols (2) Notification of next of kin at no cost to a suspect. S. 6(2). No arrest in lieu of the suspect S. 7. No arrest to enforce a civil wrong or breach of contract. Before now, the Courts have frowned at the practice of enforcing civil contracts through police action. In Arab Contractors Nigeria Ltd. v. Gillian Umanah (2012) LPELR7927 (CA) the court held that: “There is a plethora of cases on the fact that a civil arrangement is not a matter for the Police".

Arrest Protocols (3) The Court further held that "the Police are not a debt collecting organisation”. See also Igwe v. Ezeanuchie (2010) 7 NWLR Pt. 1192 Pg. 61, Agbai v. Okugbue (1991)7 NWLR Pt. 204, Pg. 391 and Nkpa v. Nkume (2001) 6 NWLR Pt. 710 Pg. 543. Inventory of property of arrested persons: S. 10.

Witnessing the recording of statements Taking of statement of an arrested suspect shall be in the presence of: a legal practitioner of his choice, or an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or Any other person of his choice But the person shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner. (s.17 (1) & (2)).

Recording of confession Electronic recording of confessional statements on video and the said recording and copies of it may be produced at trial. S 15. In the absence of a video facility the confessional statement must be in writing in the presence of a legal practitioner. Nnajiofor v FRN (2018) LPELR 44642 (CA).

Provision of Interpreter Where a suspect does not understand or speak or write in the English language, an interpreter must record and read over the statement to the suspect to his understanding and the suspect must endorse as well as the interpreter. The interpreter must endorse his name, address, occupation, designation or other particulars on the statement.

Humane treatment of Suspects S. 8 affirms S. 34 CFRN that: Suspects or detainees shall be treated humanely, having regard to the rights to the dignity of person; cruel, inhuman or degrading treatment. prohibits torture both (physical and mental torture). See also the Anti-Torture Act, 2017.

Search of suspect S. 9 of ACJA allows for a suspect who is arrested to be searched: using such force as may be reasonably necessary; and shall place in safe custody all articles other than necessary wearing apparel found on the suspect. The search must be done decently and by a person of the same sex unless it is impracticable. Anything belonging to the suspect must kept in safe custody, except his wearing apparel.

Execution of Search warrant Search warrant must be obtained from a competent authority such as a Judge, Magistrate or Justice of the Peace- s.146(1) ACJA. Warrant may be directed to one or more persons and, it may be executed by all or by one or more of them. S.147 ACJA. Search warrant may be issued and executed at any time, including a Sunday and public holiday S. 148 ACJA. Executed in the presence of two witnesses and the person to whom the search warrant is directed- S.149(4) ACJA. Where it is to be executed in another jurisdiction,

Execution of Search warrant (2) Where access into the building, thing or place cannot obtained, the executing officer may proceed in the manner prescribed by sections 9, 10, 12 and 13 of this Act- s.149(2). Where it is necessary to search a suspect’s body, it must be done decently by a person of the same sex- s.149(3). An inventory of all items seized must be drawn, duly signed and a copy given to the person to the search searched- s149 (5) ACJA 2015.

Documentation of suspects It is mandatory for the recording of personal data of the suspect- S. 15 ACJA. Such personal data should include: the alleged offence(s); the date and circumstances of the arrest; name, occupation and residential address of the suspect; and suspect’s height, photograph, fingerprint impressions, or such other means of identification. The process must be concluded within a reasonable time of the arrest of the suspect, but not exceeding 48 hours.

Pre-trial plea bargain Suspects are arrested on a daily basis and charged with crimes which puts a tremendous pressure on the court system and detention facility. It is important to note that: It is not all criminal complaint that gets to courts; some are resolved or disposed-of without the prosecutor filing any charge in court. The prosecutor may agree to Reduce the number of counts or charges in a complaint. Reduce the charge from a serious offence to a simple offence. S. 270 (1) ACJA.

Benefits of Plea Bargain Saves the prosecution the necessity of going through trial and proving its case. Saves the state material and human resources. Provides the defendant with an opportunity for lighter sentence.

Benefits of Plea Bargain (2) Plea bargain remains the quickest means of resolving criminal cases. The defendant is generally motivated by avoiding: o a likely heavier punishment. o the expense of a trial. o possibility of avoiding incarceration.

Types of Plea-Bargaining Sentence bargaining and charge bargaining ( However, Plea bargaining can be broken into additional categories.) Sentence bargaining is a method of plea bargaining in which the prosecutor agrees to recommend a lighter sentence for specific charges if the defendant pleads guilty or no contest to them. Charge bargaining is where a prosecutor agrees to drop some charges or reduce a charge to a less serious offence in exchange for a plea by the defendant.

When Plea Bargains Negotiation are Made? Plea bargaining can take place at virtually any stage in the criminal justice process. Plea deals can be struck shortly after a defendant is arrested and before the prosecutor files criminal charges or Plea deals can be negotiated after a charge is filed.

PRE-TRIAL ISSUES (PART 2)

Pre-trial Bail The grant of bail is designed to ensure that a suspect is made available any time he is required in the course of investigation of the case or at the trial. It also serve as a guarantee of the suspect’s fundamental human right derived from the right of presumption of innocence in 36(5) of the 1999 CFRN (as amended).

Procedure for administrative Bail Ss. 30 & 31 of ACJA provides that where a suspect is taken into custody, and it appears that investigation cannot be completed without delay, the suspect may be discharge upon entering into a recognizance, with or without sureties for a reasonable amount. Refusal to accept surety based on gender alone violates S. 167 of ACJA. For capital offences it is only the High Court under exceptional circumstances that has power to grant bail. S. 161 ACJA

Remedy of suspect detained in custody Where a suspect taken into custody in respect of a non-capital offence is not released on bail after 24 hours, a court having jurisdiction with respect to the offence may be notified by application on behalf of the suspect. S. 32 of ACJA. In Danfulani v EFCC (2016) NWLR (Pt. 1089) 298 at 322 the Court of Appeal held that “the power of the Commission to investigate is no license for it to contravene the provisions of the constitution with regards to guaranteed right to every citizen ”

Remand proceedings Arrest must be only for ‘probable cause’Probable cause for remand must be established. See S. 294 (2), AKEEM V FRN [2017] All FWLR (PT. 872) 1518. Court may grant bail where an application for remand is made. S. 295. Remand order shall be for a maximum of only 14 days in the first instance and the magistrate must recall the case within the period: S 293.

Remand proceedings (2) The remand order has a maximum life span of 14 days. Renewable on application for another 14 days. The renewal shall be by an application in writing showing cause. Where the suspect is still on remand at the expiration of the extension, the court may on application grant the suspect bail, or The court may instead of granting the suspect bail,

Remand Protocols (3) Issue hearing notice on the authority concerned (i.e. I-G, CP and/ or AGF) and adjourn for another 14 days. At the return date, if the authority concerned requests and shows good, the Court may remand the suspect for a final period not exceeding 14 days. At the expiration of the final 14 days, if the suspect is not arraigned the court shall release him immediately.

Obligation of remanding Magistrate Determine whether there is probable cause. To suo-motu recall the remand order after 14 days (automatic recall). Determine whether the application for extension of remand is reasonable; Issue hearing notice to the IGP, AGF and CP of FCT, or such relevant authority in whose custody the suspect is place of remand; Obligation to release the suspect where cause is not shown.

What is a Charge/Information A charge is the originating process in a criminal trial. It is an instrument which informs a defendant of what he did, when he did it, against whom it was done and the particular provision of a written law that criminalizes such conduct in compliance with S. 36(6)(b) CFRN 1999 (amended). S 494(1) of ACJA defines a charge as the statement of offence or statements of offences with which a defendant is charged in a trial whether by way of summary trial or trial by way of information before a court.

Rules guiding draft of charges The Rule against Ambiguity/Uncertainty- This rule provides that a charge must contain all the statutory requirements for it to be valid. It permits of no exception and it suggests that a charge must be clear enough so as to afford the defendant adequate notice of the nature of the offence for which he has been charged and is facing trial in Court. The Rule against Duplicity- This rule relates to the counts in the charge and it specifically prohibits a situation where more than one offence is contained in a count. Thus, distinct offences must be specified in separate counts of the Charge Sheet or Information.

Rules guiding draft of charges (2) The Rule against Misjoinder of Offences- This rule generally provides that for every distinct offence with which the defendant is accused of committing, there must be a separate charge, which shall be tried separately. The Rule against Misjoinder of Offenders- This rule generally forbids the joining of offenders together in a criminal cause or matter before the Court. Thus, it postulates that only a defendant should be charged on a Charge Sheet/Information, for the offences committed by him.

Particulars of Charge/Information In drafting a charge the prosecutor must have some basic knowledge regarding the suspect and the alleged offence- S. 196: (a) The name of the defendant and aliases if known The defendant must be sufficiently identified by his known and acknowledged names, description and designation. However, in circumstances where a defendant has absconded, such a defendant could be aptly described as “person at large”. The gender of the defendant may be indicated immediately after the names. (b) The date, time and place of the commission of the offence In practice the date is often preceded with the words ‘on’ or ‘about’ and ‘between’. In some cases the time of the commission of the offence may be immaterial, except time is stated to be of the essence in the law creating the offence, e.g. where the offence is burglary where the act of the breaking in must have occurred at night.

Particulars of Charge/Information (2) The description of the offence committed: the charge must state in unequivocal terms either the act done or omitted to be done which constitutes the offence. In other words the essential ingredients of the offence as stated in the law creating the offence must be reflected in the charge sheet; The provision of the law creating the offence breached: it is essential that a charge must state the section of the law prescribing the penalty or punishment for the by the defendant had breached;

Particulars of Charge/Information (3) Passport photograph and finger prints impression of the defendant charged S. 196 (2): at the point of filing a charge, the charge should be accompanied with a passport photograph and finger prints impression of the defendant; Proof of evidence to be relied upon at the trial: the proof of evidence is that which shows a causal link or nexus between the defendant and the acts constituting the offending. The proof must be shown to disclose a true case against the defendant.

Proof of Evidence By S. 376 of ACJA, the Proof of evidence consists of the following: the list of witnesses, the list of exhibits to be tendered, summary of statements of the witnesses, copies of statement of the defendant, any other document, report, or material that the prosecution intends to use in support of its case at the trial, particulars of bail or any recognizance, bond or cash deposit, if defendant is on bail,

Proof of Evidence (2) particulars of place of custody, where the defendant is in custody, particulars of any plea bargain arranged with the defendant; particulars of any previous interlocutory proceedings, including remand proceedings, in respect of the charge, any other relevant document as may be directed by the court; and copy of the form for information on legal representation, where applicable.

Consequences of neglecting the Rules The consequence of such defects or errors occasioned by omission to state the offence, its particulars, duplicity, mis-joinder or non-joinder of parties and offences, would no longer be regarded as being material unless the defendant is shown to have been misled and this had occasioned a miscarriage of justice. S. 220 of ACJA.

Consequences of neglecting the Rules (2) However, where such errors or defects are upheld as being substantial/material and having in fact misled the defendant which had occasioned a miscarriage of justice; the appellate court is empowered to direct a retrial. Alternatively, quash the charge where same is found to be invalid or incompetent. See section 222 of ACJA.

Who Prepares, Signs the Charge/Information for Filing? S. 106 ACJA limits the power to institute and undertake criminal proceedings to certain persons, these individuals are: The Attorney-General of the Federation or a Law Officer in his Ministry or Department; A legal practitioner authorised by the Attorney-General of the Federation; A legal practitioner authorized to prosecute by this Act or any other Act of the National Assembly.

Who Prepares, Signs the Charge for Filing? (2) S. 110 of ACJA specifically provides that charge used to institute criminal proceedings in a Magistrates’ Court must be signed by any of the persons mentioned in S. 106 of ACJA. The above provisions of ACJA has overrides section 23 of the Police Act, which empowered the Police to prosecute cases in any court in Nigeria, as it relates to courts to which the ACJA applies. In view of the above, the decision of the Supreme Court in Osahon v FRN (2006) 5 NWLR (PT. 973) 361 is no longer a good law as it relates to courts to which the ACJA applies.

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