The Application Of Judge's Rules In The Nigerian Criminal Justice System

In Nigeria, Section 4 of the Police Act empowers the police to prevent and detect crime, arrest the offenders, protect life and property and enforce all laws. The same law also allows the police to arrest every offender, investigate, interrogate and record statement from the suspect and ensure that any person responsible for the commission of any crime is prosecuted in the law courts. With regard to interrogating a suspect, reliance on Judges’ Rules is provided in order to ensure that the suspect or accused does not make any statement to the police out of oppression, inducement, the use of force or threat of violence. The challenges the police may encounter in this process cannot however, be over emphasized. Be that as it may, observance of the Judges’ rules in the course of police investigation of criminal matters will certainly enhance best practice which will contribute tremendously to fight against crime and when the best practice is observed and adhered to, it will not only uplift the police in the fight against criminals in a country, but it will also ensure that the police have respect for human rights in the course of investigation of crimes.

INTRODUCTION 

In Nigeria, Section 4 of the Police Act empowers the police to prevent and detect crime, arrest the offenders, protect life and property and enforce all laws. The same law also allows the police to arrest every offender, investigate, interrogate and record a statement from the suspect and ensure that any person responsible for the commission of any crime is prosecuted in the law courts. About interrogating a suspect, reliance on Judges’ Rules is provided to ensure that the suspect or accused does not make any statement to the police out of oppression, inducement, the use of force, or threat of violence. The challenges the police may encounter in this process cannot, however, be over-emphasized. Be that as it may, observance of the Judges’ rules in the course of police investigation of criminal matters will certainly enhance best practice which will contribute tremendously to the fight against crime and when the best practice is observed and adhered to, it will not only uplift the police in the fight against criminals in a country, but it will also ensure that the police have respect for human rights in the course of investigation of crimes.  

HISTORICAL BACKGROUND TO THE JUDGES’ RULES AT COMMON LAW AND IN NIGERIA 

The early common law rules of evidence provided that when a suspect made a confessional statement to the police willingly and voluntarily tending to show that he had committed the offense, without any oppression, threat, promise, or inducement in the course of police investigation of criminal matters, such statements were regarded as strongest and best evidence against an accused in the determination of his guilt. However, in the early part of the 19th century, there was a hue and cry by the general public that the courts should not admit such documents as a matter of course, because the police always obtained statements from the suspects by use of force, inducement, and threat. This in turn led the judges of the Kings Bench Division in the United Kingdom at the request of the Home Secretary formulated what is now known as the 

“Judges’ Rules”. The rules were built up to advance the voluntariness of confessions and to take care of public complaints and needs. They are not statutory provisions, judicial decisions, practice directives, or court rules, but are administrative rules to guide the police and other agencies who investigate crimes on what to do and what not to do when questioning any person suspected of committing a crime. These rules do not have the force of law, but the courts do act on them. It, therefore, follows that while no one can be punished for a breach of these rules, who may be very severely criticized, and suffer the penalty of having valuable evidence rejected in court during a criminal trial. The judges have the power to disallow, whether legally admissible or not, evidence that is of a prejudicial nature3. Also, the British public expects at all times that the police will act fairly, and the general desire of the police is to live up to this expectation.

The rules as it is are of great assistance to the police and the court in fighting crime. It is generally accepted that any statement taken in accordance with the rules cannot be challenged. The position of the law is that where a confession was obtained, the police officer concerned will have to prove to the court that the statement was taken in accordance with the procedure allowed by the rules. The concept of Judges’ rules was given formal recognition by the English court in the often-quoted case of R v Voisin. In this case, a corpse had been found with the words “Bladie Belgiam” written on a piece of paper. The police without cautioning the accused asked him to write these words. He did but the police had not charged him and it was apparent that he had written the words voluntarily making the same spelling mistakes. The court held it was tantamount to a confession. His Lordship Lawrence J. (as he then was) went further to say that: 

These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. They must do so, for statements obtained from prisoners contrary to the spirits of these rules may be rejected as evidence by the judge presiding at the trial.  

In Nigeria, the concept of Judges’ Rules as applicable in the Evidence Act vis-à-vis the Administration of Criminal Justice System today has its origin in the early English common law rules of evidence enumerated above. This is so because most English law and traditions found their way into the Nigerian legal system because Nigeria was a British colony. An incident of this colonial nexus brought about the introduction and adoption of English Model Courts and 

Judges’ Rules into Nigeria in 1912 became effective in 1914 and which rules have been amended and amplified in England over the years, the latest being repealed in 1994. Besides the above position, these rules were further made applicable in Nigeria by the Nigerian Police Act. Section 4 of the Act reads thus: 

The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property, and the due enforcement of all laws and regulations with which they are directly charged. And shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act  

Furthermore, the domestication of the Convention on Elimination of Torture and other forms of degrading or Inhuman Treatment or Punishment in Nigerian legislation has enhanced the application of and adherence to these codes of practice. For instance, Article 9(3) (a) provides as follows: 

The rules adopted for the interrogation of suspects are the English Judges’ Rules, which permit police officers or other law enforcement officials to question anyone, whether a suspect or not, from whom useful information can be obtained ...and also requires them to caution a person they reasonably suspect to have committed an offense before putting any questions to him

Also, Section 29(1) and (5) of the Nigerian Evidence Act provides to the effect that:  

….confession made voluntarily by the accused to the police in the course of investigation is relevant and admissible provided it was not taken under oppression, inducement, the threat of violence, or the use of force. The above sheds clear light that the Judges’ rules principle as applicable in England and other Common Law jurisdictions are also applicable in the Nigerian courts mutatis mutandi so far as possible and practicable. The whole idea behind the rules is that the courts have discretionary power to admit or reject in evidence any statement obtained from an accused person without compliance with the rules. But before the court exercises this discretion, there should generally be circumstances showing that the breach might have affected the voluntary nature of the statement. Thus, the status of Judges’ Rules in Nigeria was considered by the court in the case of State v Edekere & 7 Ors. In this case, the accused had made a statement to the police and objected to its admission in evidence in the course of his trial on the ground that he had not been cautioned and that the signature beneath the caution which appeared on the statement was not his. He contended that since he had not been cautioned by the Judges` rules, the statement was therefore inadmissible.

In overruling the objection, the court held that even if the accused was not cautioned, which was not proved, the breach does not itself make the statement inadmissible, that only if the breach suggested that the statement might not have been made voluntarily that it would become inadmissible. A similar decision was taken by the English Court in the case of Collins v. Gunn. In this case, the court held that a fingerprint obtained from the accused person with or without caution can be put in evidence, if it is relevant unless it was obtained oppressively, by false representation, bribe, or threat. The requirement that caution must be administered to the one suspected of committing a crime before his statement is recorded is a procedural device in aid of the administration of justice as part of an administrative directive to the police and kindred organizations that are vested with the power to investigate crime.  

APPLICATION OF JUDGES’ RULES IN NIGERIA 

As earlier stated Judges’ Rules were developed in England and adopted into the Nigerian Legal System by virtue of, colonial background. The relevance of Judges’ Rules in obtaining voluntary statements cannot be over-emphasized. As already noted, they aid the police in obtaining free and voluntary statements from the suspects. It follows therefore that since interrogation is governed by these rules, the possibility of having threats or promises which induce one to confess is highly unlikely. However, where confessions are obtained under undue influence or duress, they become unreliable and hence their exclusion. 

As stated above, the adherence to these rules renders evidence so procured admissible in a court of law. However, statements made in consequence of a breach of these rules may still be admissible as evidence in a court of law, as illustrated above. The Nigerian Judiciary has considered Judges' Rules to be merely directory rather than mandatory for law enforcement officers. The rules according to the 1964 modification and as applicable to Nigeria are as follows: 

Rule 1: When a police officer is trying to discover whether or by whom an offense has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. The police officer can do this whether or not the person concerned has been taken into custody provided he has been charged with the offense or informed that he may be prosecuted for it. The English Court subscribed to this position when it held in R v Stenning that police interrogation could take place while an arrested person was in custody at the police station before any charge was laid. On the issue as to what are the limits or parameters in which the police investigation or questioning can cover? The English criminal Court of Appeal in R v Bucham stated that a person arrested on a minor charge may be questioned about other more serious crimes he may have committed. It must be understood that the suspect`s answers to any questions put and any statement that he may volunteer should be reduced to writing. This procedure must be followed for the following reasons, namely: the suspect may be able to clear himself of suspicion; if it is later decided to charge him, his statement will be available to check this story in the witness box and it may disclose manners, which open new avenues of investigation. 

Rule 2: As soon as a police officer has evidence that would afford reasonable grounds for suspecting that a person has committed an offense, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offense. The caution shall be in the following terms: 

You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. When after being cautioned a person is being questioned or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present. The above rule has become what is known as the right of the silence of the suspects during police interrogation. Lord Diplock clearly explained the right of silence in Hall v R when he stated thus:  

It is a clear and widely known principle of the common law….. That a person is entitled to refrain from answering a question put to him to discover whether he has committed a criminal offense... The caution merely serves to remind the accused of a right that he already possesses at common law.  

Another question begging for an answer under rule 2 is what should happen if when after being questioned a person elects to make a statement; the law is that a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present. The reasoning of the Supreme Court of Nigeria per Rhodes Vivour J.S.C(as he then was) in the case of Oguda v The State is very instructive on this issue when His Lordship observed that the hallmarks of a properly taken confessional statement are as follows: 

a. The cautionary words must be well written and signed; 

b. The body of the statement written by the accused person or someone, usually a Police Officer, on the accused`s directives, giving a detailed confession which will show clearly that he committed the offense for which he is charged; 

c. The statement must be endorsed by a Superior Police Officer and signed by the accused person.  

This caution is fundamental to the admissibility of confessions because it is the foundation of the constitutional right of the citizen not to be compelled to make a statement. Without the words of caution, a confessional statement should be rejected by the trial court for violating the constitutional right to silence. 

Rule 3:  

a) Where a person is charged with that he may be prosecuted for an offense or charged with an offense, he shall be cautioned in the following terms: 

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. 

b) Questions relating to the offense should not be put to the accused after he has been charged or informed that he may be prosecuted except to prevent or minimize harm or loss to some other person or the public or for clearing up an ambiguity in a previous answer or statement and should be stated in the following terms: 

I wish to put some questions to you about the offense with which you have been charged (or for an offense for which you may be prosecuted). You are not obliged to answer any of these questions but if you do, the questions and answers will be taken down in writing and be given in evidence. 

c) When such person is being questioned or elects to make a statement, a record shall be kept of the time and place at which any questioning or statement began and ended and of the persons present. 

The case which underscored this principle of the rule was that of Usman v. State. In that case, the Appellant was tried and convicted for the murder of his wife by strangulation. He made statements to the police. Appellant’s counsel contended among other things that the statement made in Hausa, as well as the English translation, was inadmissible on the ground that the statement was neither read over to the Appellant at the time it was taken nor was same signed by him. Dismissing this contention, the Court held inter alia: 

Breaches of the Judges Rules do not render a document inadmissible. At best, such breaches might only affect the weight the court attaches to the statement and certainly not its admissibility.  

Rule 4: All written statements made after caution shall be taken in the following manner: 

a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. If he accepts the offer, the officer shall before starting ask the person making the statement to sign or make his mark on the following: 

I ………. wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do and that whatever I say may be given in evidence. 

b) A person writing his own statement shall be allowed to do so on his own without any prompting as distinct from indicating to him what are materials. 

c) If the suspect is to write the statement himself, he shall be asked to write out and sign the statement below before writing what he wants to say: 

I make this statement of my own free will. I have been told that I need not say anything unless I wish to do and that whatever I say may be given in evidence. 

d) If a police officer writes the statement, he is to take down the exact words of the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible, and relevant to the material matters. He shall not prompt him. 

e) When the police officer has finished writing the statement, the person making it shall be asked to read it and to make any corrections, alterations, or addition he wishes. When he has finished reading it, he shall be asked to write and sign the following: 

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. 

f) If a suspect who has made a statement refuses to write the above-mentioned certificate at the end of it or to sign it, the senior police officer present is to write on the statement and in the presence of the person making it, what transpired. If the person making the statement cannot read or refuses to read it, the officer who has written it for him shall read it over to him and ask him whether he would like to alter or add anything and to put his signature or make his mark at the end. The police officer shall then certify on the statement itself what he has done. 

Rule 5: If at any time after a person has been charged with, or informed that he may be prosecuted for an offense, a police officer wishes to bring to the notice of that person any written statement made by another person who in respect of the same offense has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of that written statement, but nothing shall be said or done to invite any comment. If the person says that he would like to make a statement or starts to say something in reply, he shall at once be cautioned as prescribed by rule 3(a). 

Rule 6: Persons other than police officers charged with the duty of investigating offenses or charging offenders should endeavor to comply with these rules. 

In the light of the foregoing, questions arise as to what effect does a breach of these rules have? Does it, if serious enough in itself, render the confessional statement inadmissible, or is its importance confined to the indications it may give on the question of voluntariness? There has been no consistent approach to this question. The position of the law in Nigeria and England where the rules originated is that breaches of the rules are of importance only as they affect the voluntariness of the accused in making a statement. A breach of the rules does not necessarily result in the exclusion of the confession if the confession is held to have been made voluntarily. Section 31 of the Evidence Act states that: 

 If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of deception practiced on the defendant to obtain it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was warned that he was not bound to make such statement and that evidence of it might be given. 

On the other hand, even where the confession has been made voluntarily it could be excluded by the Judge in the exercise of his discretion in accordance with rule 3(c) on the ground that the rules have not been followed. 

The other question that occasionally occurs is whether a confessional statement is admissible either on the ground that the cautionary statement was not administered by the police officer or that it was not properly or sufficiently administered. Here again, the point has been made that these rules are administrative rules and not rules of courts to be followed strictly. In other words, they are rules of administrative practice. Therefore, mere non-observance of the rules would not render a confession inadmissible if the court is otherwise satisfied that the statement in question was voluntarily made. It is settled law now that the admissibility of a confessional statement depends not on whether there was compliance with the Judges` rules but whether the same was made voluntarily. The requirement of caution is satisfied if the suspect is cautioned before he begins to make a statement even if he is not cautioned again when he begins to confess. In other words, the initial cautionary statement suffices throughout the interview. In concluding this section, it is worthy to mention that the Judges’ rules doctrine as it stands now serves two main purposes, namely: as a guideline for investigating police officers to prevent abuse of authority on their part and in cases of confessions to ensure that they are made voluntarily... 

ALTERNATIVE WAY TO CONFIRM VOLUNTARINESS OF CONFESSIONAL STATEMENTS 

At Common Law and in Nigeria, it has been a well-established proposition of the laws of evidence that a confession statement of the suspect to the police in the course of an investigation into a crime is relevant and admissible in evidence at his trial if the statement was given by the accused voluntarily to the police. Because of the above position of the law, it has become a common occurrence for many suspects who made statements to the police, together with their lawyers, to deny the voluntariness of their statements when the same is sought to be tendered in court.

However, the police in Nigeria have developed a practice whereby the police officer accepting a confession is obliged to take the suspect and the statement made by him before the Superior Police Officer (SPO) not below the rank of an Assistant Superintendent of Police (ASP) as early as possible. The Superior Police Officer is required to satisfy himself or herself that the statement is free and voluntary. If the police officer is satisfied, he/she must ask the accused if he made the statement voluntarily and whether it is true and correct. If the accused admits the same, he will sign it and the Superior Police Officer will endorse and sign the confession to that effect. The mere fact that a superior police officer has not endorsed confession does not render it inadmissible as earlier stated. Be that as it may, such endorsement has the value of assuring the trial court that it has been properly taken and or that the proper procedures were followed.

The whole idea is that if the statement was made under threat or duress, such threat would have been removed by the time the suspect is brought before a superior officer before whom he should feel safer. Whether such fear of duress is removed by this procedure is a different matter. However, it is submitted that it is a commendable practice to act as a check on interrogating officers. This practice is not covered by the Judges` Rules or any rule of evidence but it has been applauded by the Court. As earlier pointed out, this is a practice evolved by the police and it is merely desirable. Non-compliance would not invalidate a confession. In Alarape v. State, the Supreme Court reiterated this point when it held: 

It is not the requirement of any law that if a confessional statement has not been read over and confirmed before a superior Police Officer, it will ipso facto cease to be effective or be rendered inadmissible. Such a confirmation simply makes proof of its voluntariness easier and no more. The practice has however been commended in many cases. Although the usual practice is to get the suspect or accused person to sign the self-incriminating statement again after it has been read to him before a superior police officer, it has been held that failure to re-sign would not affect its admissibility.  

THE PROVISION OF ACJA

Section 17 of the ACJA enshrines the procedure to be followed by law enforcement personnel for recording the statement of a suspect. This provision of the law is reproduced below:

“(1) Where a suspect is arrested on allegation of having committed an offense, his statement shall be taken, if he so wishes to make a statement.

(2) Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of 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. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except to discharge his role as a legal practitioner.

(3) Where a suspect does not understand or speak or write in the English language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement.

(4) The interpreter shall endorse his name, address, occupation, designation, or other particulars on the statement.

(5) The suspect referred to in subsection (1) of this section shall also endorse the statement with his full particulars.

RELEVANCE OF THE JUDGE’S RULES 1964 IN LIGHT OF THE PROVISIONS Of ACJA 2015 AS REGARDS CONFESSIONAL STATEMENTS OF SUSPECTS

• In my humble view, from the above provisions of the ACJA juxtaposing these with the judge’s rules of 1964, it seems to me that both provisions are overlapping, however, the provision of the Act is more comprehensive as it provides that the suspect may give his statement in the presence of any person of his choice compliance with this provision aids the court to determine the voluntariness of the statement. 

CONCLUSION

In conclusion, I submit that the judge’s rule is relevant only to the extent to which there is no similar provision in the ACJA. Hence the judge’s rules are still relevant in the administration of criminal justice in Nigeria.

REFERENCES

Evidence Act 2011

Administration of Criminal Justice Act 2015

Administration of Criminal Justice and the Relevancy of Judges’ Rules and Police Interrogation in Nigeria By Udosen Jacob Idem – published March 2018.

https://lawaxis360degree.com/2018/12/24/admissibility-of-confessional-statements-a-curious-revisit accessed 23rd March 2022.

4
613
View all 4 likes
support@nairapen.com
+14047026965
.

Create An Ad Like Th...

Give your skills and business more visibility with NairaPen Ads. We'll...

View details
Dr Abiodun Anifow...

You may also like

So I Resemble My Father

"Jumbo, what is the meaning of this? My father shouted. I was surprised and asked. "Daddy,...

1658938112.png
Ifeyinwa
1 year ago

Alice In Wonderland

Ding... Dong... Ding... Dong. She wondered why the School bell sounded like a Doorbell A...

1651439050.jpg
Fabeku Abigail
1 year ago

A Widow's Journal

A widow's journal: There is much beyond the smile. of a widow yet hopeful...

defaultuser.png
Oluwatoyin Olubam...
1 year ago

Blind Revenge Part One (1...

Blind Revenge is a short story about someone who killed almost the entire family one by on...

1676204242.
Umar Ismail
1 year ago

Revitalize Your Skin With...

Daily skincare routine to achieve a glowing, healthy complexion. Whether you are strugglin...

1685357126.png
David Nwaugo
1 year ago
Comments (0)

There are currently no comments for this article. Be the first to comment.

Support this Writer
Secured Payment in Dollars

$