How delay in criminal trials can be stopped- Kemi Pinheiro

How delay in criminal trials can be stopped- Kemi Pinheiro

Friday, September 27, 2019 2:07 pm


Mr Kemi Pinheiro, SAN

A senior lawyer, Mr Kemi Pinheiro SAN, yesterday called for the abolition of the ‘trial within trial’ system of determining the value of confessional statements in Nigerian criminal justice system, saying that the system has no basis in the Evidence Act, and is one of the major causes of delay in criminal trials. “Trial within trial being foreign to our existing non-jury system law and having contributed immensely to the delay in justice delivery in criminal matters ought not to be conducted anymore in our legal system”, he said.

Rather, Pinheiro advocates that extraction of statements should be taken away from the police, and given to Magistrates or other judicial officers who must not only study the demeanor of a defendant, but also ensures that defendants are completely free while making the statement voluntarily. This way, controversies surrounding confessional statements will be completely eradicated.
He said that trial judges should then be entitled to from the totality of the evidence led by parties, deliver  judgments and in same expunge the confessional statement from their records, where found to be involuntarily made and, or act on same if found to be voluntarily made.
Pinheiro made this call in a 40 -page paper he delivered at the Lagos State Judiciary 2019/2020 Legal Year Stakeholder’s Summit, titled “The admissibility of confessional Statements: Imperatives of trial within trial” at the City Hall, Lagos on September 24.

The Senior Advocate asked “whether in the first place, it is imperative to have a trial within trial in order to determine the voluntariness of a confessional statement. “ Are there other methods by which the voluntariness of a statement that qualifies as a confession can be admitted without the resort to the cumbersome and time wasting procedure of a trial within trial? It is my hope that this presentation  will trigger a new thinking in the procedure formally known as trial within trial, a thinking sufficient enough to compel its abrogation”, he said, borrowing the words of a Greek philosopher, Heraclitus, which stated that  “there is nothing permanent except change”.
He argued that Section 29 (2) (a) – (b) of the Evidence Act, 2011 which governs admissibility of confessional statements and sets out the circumstances under which statements qualifying as confessions will be admitted.  ”Curiously, and interestingly Section 29, as with any other section of the entire Evidence Act makes no mention of the phrase “trial within trial”. “I make bold to say that the phrase does not exist in our statutory lexicon. Rather it is a practice that has evolved over time to test the voluntariness of a statement qualifying as a confession”.
Rather, he said that the practice was inherited from the common law jury system through which the Courts in Nigeria consider the admissibility of confessional statements, when challenged as being involuntary is the conduct of a trial within trial. He cited Justice Michael Ekundayo Ogundare, a former Justice of the Supreme Court of Nigeria, who in the case of Gbadamosi v The State gave an historical perspective to the concept that: “A trial within the trial is an off-shoot of the jury system. In this country the jury system has been on in Lagos in the 1930’s if not before that time”.  Remove the jury, off goes trial within the trial.”
Pinheiro said that ‘trial within trial’ was necessitated by the 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 those statements unreliable.
“Consequently, where a procedure that is fool proof against all forms of oppression in obtaining confessional statements and against all forms of inducement or such circumstance as would render a confessional statement unreliable is adopted, objections regarding the voluntariness of confessional statements will hardly be raised and overtime recourse will not be had to the conduct of a trial within trial. It is this problem that must have agitated the mind of the legislators when they specifically provided in section 15(4) and 17(1) and (2) of the Administration of Criminal Justice Act, 2015 (ACJA.)”
Section 15 (4) of ACJL states: “Where a suspect who is arrested with or without warrant volunteers to make confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on retrievable video compact disc or such other audio visual means”
Section 17 (1) and (2):
(1.) “Where a suspect is arrested on allegation of having committed an offence, 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 for the purpose of discharging his role as a legal practitioner.”
Similar provision in section 9(3) of the Administration of Criminal Justice Law of Lagos State provides that: “Where any person who is arrested with or without warrant volunteers to make a Confessional Statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recordings and copies if any may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice”
He said that the cumbersome nature of the trial within trial procedure for admitting confessional statements necessitates several issues and questions bothering on its procedure been brought before the courts for consideration. Such questions, according to him, includes when conduct of a trial within trial can be ordered in a proceeding;  at what point should a defence lawyer who intends to challenge a confessional statement raise objection to same to activate the conduct of a trial within trial? On whom lies the onus/burden of proof in a trial within trial and on what standard of proof will the burden of proof be discharged?,  what is the nature of evidence required by the defence counsel to establish the involuntariness of a confessional statement and conversely what is the nature of evidence required by the prosecution to establish that a confessional statement was made voluntarily?,  what should the ruling of the trial judge arising from the trial within trial be focused on? and what is the effect of the ruling of the trial judge on the entire conduct of the criminal proceedings. “A trial within trial being a proceeding where witnesses will be called, cross-examined, possibly re-examined with written addresses filed and the judge delivering a ruling obviously takes time and imposes an undue burden on the judge”, he said further.

“Gentlemen of the Bench and 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. The Evidence Act which governs admissibility of evidence such as confessions states only the conditions under which a confessional statement should not be admitted. The Evidence Act did not state that a trial within trial must be conducted and it has not been established that prejudice will be suffered if the confessional statement is admitted pending the close of evidence in which case the trial judge is entitled to from the totality of the evidence led by parties deliver its judgment and in same expunge the confessional statement from its records were found to be involuntarily made and/or act on same if found to be voluntarily made;
This would save precious judicial time and would in fact be beneficial to the defendant who will have his fate decided on time. Trial within trial being foreign to our existing non-jury system law and having contributed immensely to the delay in justice delivery in criminal matters ought not to be conducted anymore in our legal system”.
He cited examples of two commonwealth countries, India, and  United Kingdom , and how they extract confessional statements from defendants. In India, police are statutorily barred from extracting confessional statements from defendants. Section 164 (1),(2) of the Indian Code of Criminal Procedure, gave the responsibility to a Metropolitan or Judicial Magistrate.
“By the foregoing provisions confessional statement of a suspect is usually recorded before a Magistrate who prior to recording same must have cautioned the suspect accordingly and observed his demeanour to decipher whether the confession is not motivated by any form of oppression or inducement.The accused person is also to be 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 may be created and all fear and suspicion may be allayed”, he said.
Pinheiro said of the UK proceedings: “Interestingly, in the United Kingdom, though a voir dire proceeding is still conducted in the crown courts on account of the jury system but recourse is rarely had to same because by the criminal procedure in the United Kingdom, preliminary hearings are usually conducted prior to trial for the purpose of determining objections which the defendant may have to the evidence of the prosecution (such as confessional statements)”.
He said that many Nigerian jurists have called for the abolition of the system. He cited Justices Ogundare  who asked the question: “Do we need a statute here to abolish it when it was just a matter of practice and not law adopted by our Judges in the days when English Law and Practice held sway in our land?; Nnaemeka Agu JSC who invoked a criticism of the concept in 1990 in the following immutable words: “I must confess that I have my reservation about the continued need for a trial-within-a-trial in this country in which our judges are both judge and jury…”; and Justice Paul Nwokedi  who said “The issue of mini-trial as far as this country is concerned, is an unnecessary, and at the same time, cumbersome adjunct to our criminal trial. It is a carry-over from the English legal system which operates under a different background.”
“Sadly, thirty years after we have ignored their admonitions. Even those we borrowed the practice from have evolved beyond same. We have continued to fuse the judge and the jury system into our system with the calamitous effect of the delays we are suffering”, Pinheiro said further.
The senior lawyer therefore called on members of the bar to stand up and defend the rights of defendants in criminal trials. “The bar definitely has a role to play in ensuring that the objectives of the ACJA and ACJL in protecting the rights of the accused and preventing delays in criminal trials are achieved as it relates to confessional statements. The prosecutorial counsel has a duty to ensure that the video recording of how a confessional statement was extracted from a defendant accompanies the proof of evidence.  The Defence counsel in same way has a corresponding duty to notify or inform the Prosecution of the objection intended to be raised to the admissibility of confessional statements upon receipt of the proof of evidence”.
He also urged judicial officers to engage judicial activism to bring about change in the system. “Our courts have been able to salvage situations in which there has been lacuna in our laws in the past through judicial activism. The decisions of the Courts through judicial activism often results in legislative amendments codifying the position advanced by the Courts”. He maintained that judges should insist on  strict compliance with sections 15(4) and 17 of the ACJA and section 9 (3) of the ACJL; ensure that defence counsels  indicate their objections to confessional statements before trial, and that Prosecution must  be directed to lead evidence on voluntariness of confessional statement proposed to be tendered.
He urged Chief Judge of states to issue practice directions that will introduce a better and time friendly procedure for admitting confessional statements. “The Practice Direction to be made in this regard should direct that objections to admissibility of confessional statements be taken by another judge other than the judge that will determine the main charge. A time frame of three months should also be prescribed for the determination of the objection; Pinheiro advises.
He further advocated appointment of retired judges and senior lawyers to adjudicate on issues relating to confessional statements before the matters reaches the trial court. This according to him will remove a great burden from judges and speed up trial time. However, he said this will require a constitutional amendment before it could be carried out.

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