On Tuesday, as part of activities marking the commencement of the 2019/2020 Legal Year, the Chief Judge of Lagos State, Justice Kazeem Alogba, convened a stakeholders’ summit with the theme, “Admissibility of confessional statements: Imperatives of trial-within-trial.”
Trial-within-trial usually arises when in the course of a criminal proceeding a defendant objects to the admissibility of an extrajudicial statement he made during interrogation by security agencies.
Often, such a defendant will argue that he was threatened, tortured or cajoled to make the statement and it was not voluntary.
Others claim that the investigating officers wrote the statements and forced them to append their signature under duress.
To test the voluntariness of the statement, the judge will suspend the main trial and order that a trial-within-trial be conducted, with both sides calling witnesses in support of their claims.
At the end of the trial-within-trial, the judge will write and deliver a ruling, before proceeding with the main case.
Many a time, there is more than one statement in contention and a trial-within-trial is conducted for each one with rulings delivered.
There have been occasions when a trial-within-trial ran into months or a year, while the main trial was put in abeyance.
Stakeholders in the criminal justice system hold the common view that trial-within-trial is a clog in the wheel of justice.
Its attendant consequences, they said, include increased workload for judges, who are already overburdened with too many cases, as well as congestion of the prisons, resulting from slow determination of criminal cases in court.
Justifying the choice of the summit topic for this year, Lagos Chief Judge, Justice Alogba, said crime rate in the society was increasing, leading to increased filing of criminal cases but the courts were not able to match up because of delay factors, including trial-within-trial.
Justice Alogba said since change was the only thing constant in life, it had become important for stakeholders in the criminal justice sector to deliberate on whether or not trial-within-trial should be done away with.
“Time is dynamic and we have to move with time,” the Chief Judge said.
Appeal Court Justice Habeeb Abiru, who chaired the occasion, agreed with the Chief Judge, declaring that, “There is a critical problem with the criminal justice system that we are running because of prison congestion.”
The appellate court Justice said since there was a raging controversy on the issue of trial-within-trial, stakeholders must decide the way forward.
Poor investigation, inept prosecution blamable – Pinheiro
The chief speaker of the day, Mr Kemi Pinheiro (SAN), who declared that trial-within-trial was bad for the Nigerian legal system, said unreliable investigators and inept prosecutors should be blamed for its continued practice and consequences.
“Trial-within-trial is often necessitated by prosecutorial ineptness and unreliability of police officers who fail in their duty to ensure that statements extracted from suspects in their custody are obtained without any form of oppression and in the absence of any circumstance that will render the statements unreliable,” Pinheiro said.
He noted that though the Administration of Criminal Justice Act 2015 had, in its Section 9(3), provided for electronic recording of suspects statements, the law was being observed in breach, fuelling the practice of trial-within-trial.
Pinheiro said because many investigators and prosecutors erroneously believe that once they have obtained a purported confessional statement they would secure conviction in court, they prefer to do it without transparency.
He said, “From the onset, the point must be made extremely loud that a confessional statement cannot on its own secure conviction. The purported confessional statement must be evaluated against several pieces of physical evidence and testimony before its veracity is accepted.”
Condemning trial-within-trial, Pinheiro said it ought to have been jettisoned since when Nigeria did away with the jury system.
He recalled that retired Supreme Court Justice Ogundare had in the case of Gbadamosi v the State, explained that “A trial-within-trial is an offshoot of the jury system,” which Nigeria once practised about the 1930s, and declared that since the jury system was removed, “off goes trial-within-trial.”
This same point, he said, had also been made by a former Chief Judge of Anambra State, Justice P.K. Nwokedi.
“Sadly, 30 years after, we have ignored their admonitions. Even those we borrowed the practice from have evolved beyond same. We have continued to fuse our judge and the jury system into our system with the calamitous effect of the delays we are suffering.
“Notwithstanding that the jury system no longer holds sway in Nigeria, the practice of conducting a trial-within-trial has not been discontinued,” Pinheiro lamented.
He listed the negative effects of trial-within-trial to include waste of precious judicial time; unnecessary burden on judges; hardship on defendants who have been denied bail and are remanded in prison; and the likelihood that the judge may prejudge the main case at the stage of trial-within-trial.
“Can it be said that the conduct of trial-within-trial is no longer necessary? Gentlemen of the Bench and the Bar, I will not stand on the fence.
“Firstly, aside being a matter of practice, there is no law permitting and/or providing for the conduct of a trial-within-trial,” Pinheiro told his audience.
He declared, “There is no gainsaying the fact that the practice of conducting a trial-within-trial has outlived its purpose in our judicial system and it is time to jettison the practice.”
Pinheiro said Nigeria must borrow a leaf from other countries, including India and the United Kingdom, which had moved away from the practice of trial-within-trial.
He said, “In India, recognising the fact that police officers often extract confessions from suspects in a manner that would render the confession unreliable, a statement made by a suspect to police officers is generally not admissible in evidence.”
He pointed out that the task of taking extrajudicial statements from suspects in India had been taken away from the police and given to magistrates.
“Confessional statements of a suspect is usually recorded before a magistrate, who, prior to recording same, must have cautioned the suspect accordingly and observed his demeanor to decipher whether the confession is not motivated by any form of oppression or inducement.
“The accused is also brought before the magistrate unfettered. The police or other persons who may have any influence or hold over the accused are ordered out so that a free atmosphere is created and all fear and suspicion may be allayed.
“The suspect must also be taken before the magistrate within three months of an indication of willingness to make confession and when the offence is still fresh in his mind.”
To move away from the old practice, Pinheiro called for judicial activism.
“Our courts have been able to salvage situations in which there has been lacuna in our laws in the past through judicial activism. In similar manner, judicial activism is required to prevent further delay of criminal cases by the conduct of trial-within-trial,” he said.
He said judges must, through judicial activism, enforce sections 15(4) and 17 of the ACJA and Section 9(3) of the ACJL by making it “mandatory that all confessional statements to be tendered as evidence must have attached to it and forwarded along with the proof of evidence, video recording of how the confessions were extracted from the accused or at best an affidavit in lieu of the video recording where not available.”
“This will greatly reduce the possibility of tenuous objections to the voluntariness of confessional statements,” he said.
Furthermore, Pinheiro called on judges to begin to mandate defence counsel to indicate from the outset of a case their intention to challenge admissibility of frontloaded confessional statements so that the issue would be sorted out before trial begins.
Another thing to do, he said, was for the court to direct the prosecutor to, in the course of trial, lead evidence to show that frontloaded confessional statements were voluntarily made while the defence should also lead evidence to the contrary in their defence.
The SAN also called on Chief Judges to issue practice directions for the introduction of a better and time-friendly procedure for admitting confessional statements.
He also called for legislative intervention for an amendment to Section 9(3) of the ACJL and Section 17 of ACJA for the adoption of the Indian system, where confessional statements are taken by magistrates rather than police officers.
Both Messrs Hakeem Bello, a university lecturer; and Ben Ubi, head of EFCC prosecution team in Oyo State, agreed with Pinheiro.
Alluding to the time wasting effect of trial-within-trial, Ubi recalled a case where “since 2016 we have been on a trial-within-trial and it is ongoing like that.”
“Trial-within-trial is an enemy to criminal justice in Nigeria,” the EFCC lawyer declared.
“Depending on the side you are, for defence lawyers, trial-within-trial is excellent; but for you as a prosecutor, trial-within-trial is time-consuming; it not only consumes the time of the prosecution; it also consumes judicial time and puts an extra burden on the judge. So, I agree with the learned silk,” he said.
The chairman on the occasion, Justice Abiru, said it was clear that if the provision of ACJA on video recording of the process of taking confessional statements of witnesses was fully enforced, the need for trial-within-trial would be greatly reduced.
He, however, noted that Nigeria was still grappling with problem of inadequate facilities coupled with poor electricity to charge such recording devices.
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