CRIMINAL LITIGATION CLASS - MONDAY NOVEMBER 24, 2008.

EXPECTED OUTCOMESAt the end of the class students should be able to; 1.Participate in Police interviews 2. Discuss how Alibi, Statements and confessions should be recorded at the Police station and identification parade conducted 3. List and explain the constitutional rights of a suspect at the Police station. 4. Explain when to apply for assistance for a citizen under the Legal Aid scheme. 5. How to obtain Police bail at the Police station. 6. Explain how to conduct a pre-trial interview.
1.

How Police Interviews are Conducted Who are those to be present at the Interview What is the venue of such interviews How are the rules for obtaining suspects statements

See: The Following issues which could arise during the interview :
a. b. c.

Confessional Statements The defence of Alibi Identification Parade

The Following materials to be read: Sections 27 - 32 Evidece Act Cap E14, LFN, 2004. The Judges Rules as they apply to Nigeria Section 9(2) ACJL Lagos State, 2007.

Confessions See ss. 27 - 32 Evidence Act(Deal with confessions) A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. See S. 27 (1). See also Ikemson versus State (1989) 3 NWLR (Pt. 110) 455. Shazali versus State (1988) 5 NWLR (Pt. 93) 164; Yahaya versus The State (2001) 10 NWLR (Pt. 721) 360; Hassan versus The State (2001) 6 NWLR (Pt. 706) 286. see QUEEN V NIMIEL VIAPBONG Confessions, if made voluntarily, are admissible against the person who made them. A confession is inadmissible if caused by any inducement, threat or promise, having reference to the charge against the accused, proceeding from a person in authority and sufficient, in giving the accused ground for supposing that by making it, he would gain advantage or avoid any evil of a temporal nature. See Section 28. This is as much as rule of English Law as Nigerian Law. See Ibrahim versus R (1914) AC 599;; Kareem versus FRCN (No.1) (2002) 8 NWLR 366 (Pt. 770) 682 - 683; Nwachukwu versus The State (2002) NWLR (Pt. 751). Condition for admissibility of confession Per Lord Summer "It has been established as a positive rule of English Criminal Law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority". For a confession to be admissible, against an accused person, the confession must be made without any form of threat or inducement emanating from a person in authority. A chief who is in position to make complaint to the police is regarded as a person in authority in this context. In R versus Ajege and Anor (1935) 2 WACA 353. A representation made by a District Head to a prisoner, who had been locked up for two and a half months that he would be released and offered some reward, was held insufficient to make the statement made by the prisoner as a result of this offer inadmissible although its value was negligible. The better view is that the statement should not have been admitted at all. See also Madu Fatumani versus R (1950) 12 W.A.C.A. 39. In R versus Haske (1961) 1 All NLR 330. The Supreme Court held that a Confessional Statement made as a result of a threat, by the chief of a village who had said to the villagers, "all of you will be in the case and will be goaled if you do not tell me the truth", was inadmissible because "Chief was clearly a person in authority". The Supreme Court also regarded the statement of the Chief as amounting to inducement since it also meant "if you will tell the truth other villagers will not be goaled" See also R versus Smith (1959) 2 Q. B. 35. Note that an agent provocateur is not a person in authority for this purpose. See Igbinovia versus The Slate (1981) 2 SC 5. at 16. When a confessional statement is obtained from an

accused who does not understand the language in which it is written down, the police must make use of an interpreter. Such interpreter should sign the statement as recorded. But the mere fact that the statement is not signed or marked by the interpreter does not make the statement inadmissib1e- R versus Haske (1961) 1 All NLR 330. The whole of a confession must be put in evidence. The prosecution is not allowed to tender the part favourable to it without also tendering the part favourable to the accused and the fact that an accused had denied making the confessional statement does not in itself make it inadmissible See R versus Itule (1967) 1 All N. L.. R 462, For confession to be admissible in evidence, the prosecution must prove that the confession was made voluntarily without inducement or threat - section 27 (2) and section 28; See . see also Ode v The state A threat of harm by metaphysical means does not come within threat under section 28. See R versus Ebong (1947) 12 WACA 139; See also Ojegele versus The State (1988) 1 NWLR (Pt. 71) 414. Trial within Trial (Not too clear when it is necessary and when it is not) Note that the Judge has a duty to conduct a trial within a trial once the issue of voluntariness is raised. But where the statement is merely denied, the Judge must admit the statement. Trial within a trial is not required in such a case See Adamu versus A. G. Bendel State (1986) 2 NWLR (Pt. 22) P. 284; Madjemu versus The State (2001) 5 SC (Pt.1) 84 at 88 and 99;Yahaya versus The State (2001) 10 NWLR (Pt. 721) 360 supra; Hassan versus The State (2001) 6 NWLR (Pt. 706) 286. supra. Nwachukwu versus The State (2002) NWLR (Pt. 751). Judges Rules Because of the strict proof which is required of a confessional statement before it may be admitted the judges of the Kings Bench Division in England in 1912 formulated what is generally referred to as the Judges Rules for the guidance of police in obtaining statements from persons in custody or suspected of criminal offences. The Rules which had in 1964 been replaced by another set of Rules have always been applied in Nigeria See R versus Anya Ugwuogo and Anor (1943) 9 W.A.C.A. 73; R versus Afose (1934) 2 W.A.C.A. 118; R versus Ajani (1936) 3 WACA. 3; Evbuomwan versus Police (1961) NMLR 257. The most relevant of the rules are: (i) When a police officer trying to discover whether, or by whom an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained, whether that person has been in custody or not. But once the police officer has evidence which gives reasonable ground for suspecting that a particular person committed the offence, he should caution him before putting further questions to him. The caution should be as follows: "You are not obliged to say anything unless you wish to do so but what you say may be put .in writing and given in evidence". see

(ii) When the person has been charged and informed that he may be prosecuted, he should be cautioned in the following words: "Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence". Care must be taken not to give the impression that what the suspect says can only be given in evidence against him and question should not be asked which are not intended to extract information from him. Questions may however be asked to correct ambiguities and obvious mistakes.

(iii) If a suspect intends to write his own statement, he should be asked to write and sign the following statement before he starts writing out his statement: "I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence". And if it is written by a police officer the accused must state at the end of the statement thus: "I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will". (iv) If a person has been charged and the police wishes to bring to his notice a written statement made by a co-accused who in respect of the offence has been charged or informed that he may be prosecuted, the police should hand over a true copy of such written statement, but nothing should be said or done to invite any comment or reply. But if that person says he wants to make a statement in reply, he should be cautioned as indicated above. Persons other than police officers charged with the duty of investigating offences must as much as possible comply with the Judges' Rules. Apart from complying with the Judges' Rules, the Nigerian police have evolved the practice of taking an accused person who has made a confessional statement to a Superior Officer or a District Officer at the earliest possible time for endorsement. This is to give the accused the opportunity to deny or retract his statement. This practice has been highly commended. See R versus Omorewere Sapele (1957) 2 FSC. 24; Nwigboke versus R (1959) 4 F.S.C 26; Adamu versus A-G. Bendel State (1986) 2 NWLR (Pt. 22) 284. Note that the Judges rules as well as the confirmation of confessional statement by superior police officers is a rule of practice and not a rule of law and therefore failure to comply with them does not render a confession that was voluntarily made inadmissible. R versus Voisin (1918) 1 KB. 531, Abukar versus The State (1969) NSCC Vol. 6 at 313. But in asking the accused to confirm or deny his statement taken down in a language other than English, the proper thing to do is to read the statement in its original form and not its English translation if the accused is illiterate - R versus Nwangbo Igwe (1960) 5 FSC. 55. Note that where an interpreter is used in recording an accused's confession such confession is inadmissible unless both the interpreter and the person who recorded the statement are called as witness. See Nwaeze versus The State (1996) 2 NWLR (Pt. 428) P 1

It has been held that before an accused person can be invited to pose for a photograph which would strengthen the case against him, he should be cautioned and told he is not bound to pose for such photograph Ugama versus R (1959) 4 FSC. 218. A confession is only admissible against the person who makes it. R versus Ajani & Ors (1936) WACA 3 even when it is made in the presence of a co-accused unless the co-accused adopts the confession, it is not admissible - section 27 (3); Evbuompan versus Police: R versus Enabosi (1966) 2. All NLR 116; Afolabi versus Police (1961) All NLR 654. The State versus Pratt & Anor 1977/8 C.C.H.CJ.1729.; R versus Afose (1934) 2 W.A.C.A. 118;. Note that a confessional statement alone is sufficient to ground a conviction once the court is satisfied with the truth of the confession. Yusufu versus The State (1976) 6 SC 167. Effect of Confession A confessional statement is sufficient to ground a conviction without corroboration provided the court is satisfied with the truth of the confession even if it is inconsistent with the accused's statement in court. See Egboghonome versus The State (1993) 7 NWLR (Pt. 306) P. 383. In determining the truth of the confession, however the Court must ask itself certain questions see lkpo versus The State (1995) 12 SCNJ 64 at 75.

Constitutional Rights available to a suspect at the Police Station. (green denotes constitutional rights)
2.

See the Following Section 3(2) (a) ACJL, Section 36(5) & (6) 1999 CFRN.
(2) The Police officer or the person making the arrest or the Police officer in charge of a Police station or any Law Enforcement Agency shall inform the person arrested of his right to: a. remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

Section 3 (2) (b) & (3) ACJL.

3(2)b. Consult a counsel of his choice before making or writing any statement or answering any question put to him after arrest.

3(3) The Police officer or the person making the arrest shall inform the person arrested that he may apply for free legal representation from the office of the Public Defender, Legal Aid Council or any such agency.

Section 35(3) 1999CFRN, Section 5 CPA, Section 38 CPC, Ss 3 (1) & 9 (1) ACJL. 35(3)1999 Cons: Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention. 5.CPA Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest. 3(1)ACJL: Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest. 9(1)ACJL: Any person who is arrested, whether with or without a warrant, shall be taken with reasonable despatch to a police station, or other place for the reception of arrested persons, and shall without delay be informed of the charges against him. Section 17 CPA, 340(1) CPC & 35 (3) (4) (5) & (6) (e) 1999 CFRN.
s.17 CPA When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of a police station may, in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of the peace having jurisdiction with respect to the offence charged within twenty-four hours after he was so taken into custody, inquire into the case, and, unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a court or justice of the peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 of this Act as soon as practicable whether or not the police inquiries are completed.

35 (3): Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention. (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. (5) In subsection (4) of this section, the expression "a reasonable time" means (a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable. (6) Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, "the appropriate authority or person" means an authority or person specified by law.

The Rights and circumstances where suspect may require to have recourse to the Legal Aid Scheme.Section 7 & Schl (2) Legal Aid Act Cap. L.9, LFN 2004.
3.

Note that there are Legal Aid offices located at many of the area commands of the Police.

4. Why/circumstances where Police may grant bail before trial in court. Section 35 (3) (4) & (5) 1999 CFRN, Section 27 Police Act, Cap P.19 LFN, 2004.
Refer to Section 35 (3) (4) & (5) 1999 CFRN above

5.

PRE- TRIAL INTERVIEWS

Purpose, who is to attend and where? IDENTIFICATION PARADE Section 10, Evidence Act, Cap E-14, LFN 2004.
s.10 Evidence Act 1. 2. 3. 4. Identity of assailant in doubt complainant has never seen the man before lighting of the place-How bright was the light Voice- i.e where suspects can recognize the voice in question- Mbenu v. State

NB: Identification parade does not necessarily convict a victim

The rule in R V Turnbull (1973) 3 All ER ,549 Ikemson V The State 1989NWLR Pt.110, 455 Mbenu V State (1988) NWLR Pt.84,615.(Rape and voice recognition) Emiator V State (1975) NSCC,420.(Dressing-How was he dressed) Bozin V State (1985) NSCC, 78. ALIBI AS A DEFENCE Section 12 Evidence Act, Cap E-14, LFN 2004. The defence can be raised at anytime (though it is preferable, even for the suspect, that the defence be raised early,) and the judge is bound to consider it, if not, on appeal, the defendant can be discharged on the basis that the defence was not considered. (Ogoala v State)

Okosi V State (1989) NWLR Pt. 100, 642.

Nwosisi V State (1976) NSCC, 299. Njovens V State (1973) NSCC, 257. Ogoala V State (1991) NSCC, 366. (can be raised at anytime and it must be
considered)

THE JUDGES RULES (see rules in notes above) Origin: From England Date: 1912 but modified in 1964. Scope: Police Officers and Other Law enforcement agencies in Nigeria. Rv Braimah (1945) 11 WACA,49. AIM: To ensure that statements made by suspects in custody are voluntary N0. of Rules: Six (6) on the whole STATUS: A mere Rule of Administrative practice rather than of Law and therefore failure to comply with them does not render a confession that was voluntarily made inadmissible. R versus Voisin (1918) 1 KB. 531, Abukar versus The State (1969) NSCC Vol. 6 at 313. ( Nwadialo, F.; Modern Nigerian Law of Evidence, 1st ed. 1981, Pp; 127128.) CASE LAW Rv Viosin (1918) 1 KB, 531. Rv Ugwuogo & Ors (1943) 9 WACA, 73. Rv Fatumani (1950) 12 WACA, 39. R V Ajose (1934) WACA, 118. Ugama V The Queen (1959) 4 Fsc, 218.Nwigboke & Ors V The Queen (1959) 4 FSC, 101.Onungwa V State (1976) 2 SC,169.

GROUP ASSIGHNMENTS 1 Groups 1 to 5 What is the distinction between denial and retraction of a confession?

Denial is where the suspect makes a claim to having not giving the confession in question, while a retraction is where the suspect agrees that the confession was made but as a result of battery (e.g beating, etc)
What is trial within trial and how is it conducted? This is used to test the voluntariness of a confession. The main trial is suspended in order to ascertain the voluntariness or otherwise of the confession. A trial within a trial should produce one result. i.e whether statement is voluntary or involuntary

EDERE was arrested and charged to court in Lagos for the offence of armed robbery. The prosecution tendered a video coverage of the interview session at the Police station where he had confessed to the crime in the presence of his counsel. Ederes counsel is objecting to the admissibility of the video films and the written confessional statement arguing that that they were unaware that the video recording was going on during the interview. Using statutory and judicial authorities to what extent is the counsel correct?

s. 9(3) ACJL- Question that arises is that, from the provisions of this section, should the police actually inform counsel or his client as to the existence of a video recording---- The sub-section makes no reference to the requirement of informing the accused person or his client, therefore the recording is admissible.
2. Groups 6 to 9 --- Hoset was arrested by the Police on an allegation of Housebreaking and stealing from the house of Chief Lucas at No. 45 New York Street, Yaba Lagos on 23/10/08. He made a statement in writing at the police station which was recorded by the station officer. In court, when he was testifying, he stated that he was in Enugu on the day of the crime and mentioned those with whom he was including the address where he was . The Prosecution has objected to the admissibility of the evidence which is entirely different from the statement he made at the Police station. How correct is the prosecution? Give reasons for your answer using judicial authorities.

The defence of Alibi should have been raised early, at the police station to enable the police investigate the Alibi claim in order to ascertain its truthfulness, and it was not raised in the defendants statements, but at trial, therefore the issue is: Is that defence of Alibi still admissible??? Ans: The defence can be raised at anytime (though it is preferable, even for the
suspect, that the defence be raised early,) and the judge is bound to consider it, if not, on appeal, the defendant can be discharged on the basis that the defence was not considered. (Ogoala v State)

Therefore the defence of alibi can be raised at anytime. 3. Groups 10 to 13 --- Joke has raised an objection to the tendering of the confessional statement she made at the police station and a picture taken of her by the Police at the Island Maternity Lagos Island because she was not cautioned and her permission was not obtained before the police snapped her carrying the new born baby she was alleged to have stolen. As counsel for the prosecution, what counter/s (if any) do you have to these objections?
It has been held that before an accused person can be invited to pose for a photograph which would strengthen the case against him, he should be cautioned and told he is not bound to pose for such photograph Ugama versus R (1959) 4 FSC. 218. However the JUDGES RULES are rules of practice and not a rule of law and therefore failure to comply with them does not render a confession that was voluntarily made inadmissible. R versus Voisin (1918) 1 KB. 531, Abukar versus The State (1969) NSCC Vol. 6 at 313.(and in this case, Jokes confessional statement seems to have been voluntarily made)

In what four circumstances will the police conduct an identification parade in Nigeria?

s.10 Evidence Act 1. Identity of assailant in doubt 2. complainant has never seen the man before 3. lighting of the place-How bright was the light 4. Voice-Mbenu v. State Identification parade does not necessarily convict a victim

* Role Play -- Identification parade at a Police station to be conducted using one volunteer from each of the 13 groups.