Debate over whether trial within trial in criminal adjudication should be abolished to hasten procedures as some are frantically advocating has continued to resonate among experts.

While some argue for the abolition of the practice, others believe it could be modified within the appropriate legal framework. To abolish it completely, they argued that it might amount to miscarriage of justice.

When a criminal charge is filed against a defendant and the trial begins, the prosecution usually attempts to tender a statement made by the defendant while in custody. The defence team could raise an objection, claiming that the statement was not obtained voluntarily from the defendant.

The consequence is that the judge would order a trial within trial to determine whether or not the defendant was forced to make the statement. Under this circumstance, new sets of witnesses are required to give evidence, while the main trial is put on hold.

Legal experts are kicking against this practice, arguing that it is one of the delayed tactics regularly adopted by most defence teams to either delay trial or frustrate it ultimately. According to them, the practice contributes to unending trials at a time efforts are being made to speed up criminal justice administration. It is a common occurrence in most criminal proceedings, but legal experts believe it should be stopped.

However, considering that some security agencies, especially the police are notorious in using extra-legal means to obtain confessions, some argue that a balance needs to be established to ascertain the veracity of such statements before the court could rely on them to secure convictions.

Those that are in support of the abolition often said that a trial within trial is a complete trial on its own, during which the main case is put on hold, and parties are called upon to prove whether a statement was voluntarily obtained. They are of the view that there has been a blind and slavish adherence to the practice even though fundamental rights to personal liberty under Section 35 (2) of the 1999 Constitution, has already provided that any statement made by a person upon lawful arrest must be voluntary.

To them, the innovative Administration of Criminal Justice Act (ACJA) 2015, which is designed to achieve speedy dispensation of justice, may be hampered by the retention of the practice. Those opposed to the practice said the Evidence Act 2011 and the ACJA did not provide that a retrial must be conducted to determine the voluntariness of a statement. Other schools of thought agreed that though the system is outdated, necessary steps must be taken to ensure that what it is meant to achieve is not defeated, if at the end of the day it is abolished.

One the suggestions is that the judiciary should adopt a system where confessional statements are admitted after an objection is raised and the weight to be attached to the statement determined at the end of the trial. It was said that providing critical infrastructure like CCTV cameras, drones, forensics and body cameras for evidence-gathering will enable the prosecution to rely more on real evidence rather than placing sole reliance on confessional statements and having to cross the hurdle of a trial within trial to prove their reliability. A complete reform of the justice system, which includes the Police, is suggested to resolve the issue. The argument is that where the Police are inefficient, it constitutes an impediment to speedy administration of justice. Allegations of torture of suspects by police officers to extract confession, indirectly points to lack of capacity to thoroughly investigate crimes through forensic science and technology. The idea of a trial within trial is to ensure fairness and promote the cause of justice by giving the court the confidence to rely on a confessional statement in grounding a conviction. The negative consequences include delay in the speedy conclusion of cases; the negation of Section 36 (1) and (4) of the 1999 Constitution and Section 1 of the ACJA 2015, as well as the likelihood of the main case being frustrated. The longer a trial within trial lasts, the likelier victims of crime would be denied the justice they deserve, as they or the accused may die before the case ends. The practice also places a financial burden on parties and wastes judicial time. But some adherents of the system insist that solution to the speedy justice administration does not lie in the abolition of trial within trial until several ancient practices are jettisoned. They believe that the procedure can be reformed instead. For instance, some of the old practices including writing of court proceedings by hand.

Also, there are calls that stakeholders must adhere to the provisions of the ACJA regarding video recording of the interrogation process in the presence of a lawyer. Speaking on pros and cons of trial within trial, a Lagos-based lawyer, Mr. Wahab Abdulah said it provides the opportunity or platform for the court to achieve a balance in ensuring that such statements are not relied on to secure convictions, where they are not made voluntarily. “Trial within trial is a full blown trial within the substantive criminal adjudication. It allows a trial judge to form his opinions about witnesses and evidences of both the prosecution and accused persons. Trial within trial possesses all the ingredients of a full trial. “Trial within trial arises from a situation where the defence counsel raises an objection, claiming that the statement from the accused was not obtained voluntarily.

“To realise whether or not the witness’ statement was made voluntarily or by force, the judge orders a trial within trial. In this situation, a new set of witnesses may be required to give evidence while the main trial is put on hold. “Considering the provision of Section 35(2) of the 1999 Constitution, voluntariness of a statement by a suspect upon his arrest must be voluntary. “Following from the above, the advantages of the trial within trials include but not limited to the fact that it affords the court the opportunity to review with keen attention to witnesses’ statements and evidences and how they contradict each other. It makes the Court to form a fresh opinion unlike when the witness was first put into the witness box,” he said. Abdulah explained that trial within trial is a short gap to allow for the provision of the constitution and how effective it is being implemented. According to him, it means that the existing law prescribes that a statement by an accused must be voluntary and such must be adhered to. The court, which was not present when the statement was made, he pointed out, can only know the veracity of the evidence through this means, since in most cases, security agencies use different means to obtain confessions from suspects. He said: “It therefore, provides the opportunity or platform for the court to achieve a balance in ensuring such statements made under duress are not relied on to secure convictions. “The trial within trial enables the court to expunge once and for all any extra judicial statement by the witnesses, more particularly from the accused person, the moment the court determines the voluntariness or otherwise of the challenged statement. “In recent times, however, when stakeholders are calling for speedy prosecution of criminal cases, trial within trials is gradually becoming unacceptable,” he stated. He also said, apart from the fact that it is becoming obsolete in this age of technology where uncontroverted evidences are brought to court by the prosecution, it leads to unnecessary delay in criminal trial. “As we all know, justice is for both the accused person and the prosecution. Before the advent of ACJA, the situation made some cases progress to the appellate courts just to delay or frustrate the main case. “Another demerit of trial within trial to the court and parties in a criminal case is that it ‘unduly exposes’ whatever evidence before the court to unnecessary ‘clinical’ x-ray. “In other words, it makes repetition of presenting evidence(s), which probably must have been tendered before the court. In this manner and in some circumstances, it creates hole of doubts in the mind of the court.

“That is, it somehow creates a psychological problem for the court on the admissibility of the same evidence it would be faced with during the main trial.

“It also promotes the denial of justice to some extent and encourages delay. And justice delayed is justice denied to the victim of the crime. In addition, it increases the cost of procuring justice in our courts,” he submitted. For a lawyer and human rights crusader Mr. Kabir Akingbolu, trial within trial serves as a litmus test to remove the chaff from the corn in criminal trials or proceedings. Akingbolu noted that for trial within trial to be conducted, there must be a challenge by the accused or defendant that he was forced to implicate himself by confessing to a crime he did not commit. He said the greatest advantage of the procedure is that it serves as a litmus test that removes the chaff from the corn in criminal trials. Through a successful trial within trial, an innocent person who had hitherto been incriminated by a phony confessional statement, he noted, would be left off the hook and set free. “This way, trial within trial helps to prevent an innocent person from suffering for an offence he never committed, thereby making the judicial system reliable and free from victimisation and imposition of unjust punishment on innocent people,” he said. In his explanation of the shortcomings of the process, Akingbolu said: “If the wrong procedure is adopted in taking a suspect’s confessional statement, his lawyer may use the instrumentality of trial within trial to set him free even though he committed the offence. This is a very bad side or disadvantage of trial within trial.”