UNDERSTANDING THE NEW ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

Transcription

1 UNDERSTANDING THE NEW ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015 PAPER DELIVERED BY: MRS E.I. ALAKIJA DIRECTOR OF PUBLIC PROSECUTIONS LAGOS STATE NIGERIA BAR ASSOCIATION 2015 ANNUAL GENERAL CONFERENCE, ABUJA. TUESDAY 25TH AUGUST, 2015

2 INTRODUCTION ACJA 2015 merged the Criminal Procedure Act (CPA), Criminal Procedure Northern State Act 2004 and CPC into one principal Federal Enactment to apply to all Federal Courts across the federation. Though it has preserved existing criminal procedures, it has also introduced other innovations which will enhance the efiiciency of the criminal justice system. It contains 495 sections divided into 49 parts The purpose of ACJA according to Section 1 of the Act is to promote efiicient management of the criminal justice institutions, ensure speedy dispensation of justice, protect the society from crime and preserve the rights and interests of defendants and victims of crime. 2

3 The provisions of the ACJA are applicable to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital Territory Abuja. Section 2 ACJA UNLAWFULL ARREST AND NOTIFICATION OF ARREST Ø S. 2 7 of ACJA sets out the procedure to be made when arrests are carried out by the police. Unlike before, where the police under S. 10 of the CPA arrest without a warrant any person who has no ostensible means of sustenance and who cannot give a satisfactory account of his/her activity. Ø The practice of police and other law enforcement agencies arresting friends and close relatives of the suspects even when they are not linked in any way is now prohibited. Ø This provision if properly implemented will reduce the congestions of prisons and police cells. 3

4 (Cont d) Ø Ø Ø This provision also amplifies the provisions of S. 35 (2) of the Constitution of Federal Republic of Nigeria 1999 (as amended) This provision has the same purpose as the ACJL 2011 of Lagos State SECTION 7 ARREST The ACJA prohibits arrest in lieu. Hence a person shall not be arrested in place of a suspect. Section 7 ACJA will curtail the abuse of power manifested where relatives and close associates of criminal suspects are arrested in lieu of the suspect. Mandatory inventory of property by the police SECTION 8 HUMANE TREATMENT OF AN ARRESTED PERSON AND PROHIBITION OF ARREST ON CIVIL CASES. Section 8 ACJA provides that a suspect shall be accorded humane treatment having regards to the dignity of his person and shall not be subjected to any form of torture, cruel, inhuman or degrading treatment. It also prohibits malicious instigation of the arrest, detention and prosecution of another as a result of civil 4

5 Cont d Ø Mandatory Inventory of Property by the police. S. 10 of the Act mandates police upon arrest to take inventory recovered from suspects and same must be duly signed by the police officer and the suspect. Refusal of the suspect to sign shall not invalidate the inventory recorded. This provision will ensure accountability and transparency. Mandatory record of personal data of an arrested person. s. 15 (1) (2) of the Act provides that the process of recording personal data of suspect shall be concluded within a reasonable time and not exceeding 48 hours. This is to prevent the unreasonable pre-trial detention by the police and other law enforcement agencies. 5

6 (Cont d) S. 15 (4) ACJA - Electronic Recording of Confessional Statement of Suspects The Act provides for electronic recording of confessional statement on video or any other audio visual means. This is to curb the allegations of violence on suspects while in custody and to prove the voluntariness of that statement in court. (similar to the provision of S. 9(1-3) ACJL Lagos State. In Lagos, we have some level of co-operation from the police, however, most of the police stations are yet to comply with this provision, as the question arises in the case of video recording as to who provides the recording system. Equally, we have lawyers challenging this provision during trial within trial where recorded confessional statements are not recorded in line with s. 9(2) ACJL S. 90(1)(2)(3) In the Ministry of Justice Lagos, we have taken a position that this section is a mere procedural law and failure to comply with same does not render the statement inadmissible. Its left to the Court to attach weight to the piece of Evidence. This provision if enforced will reduces the delay caused by persistent trial within trial by defence counsel. 6

7 (Cont d) S. 16(1) Establishment of a Police Central Criminal Registry The ACJA goes a step further from ACJL by establishing a Data collection Registry to keep records for future investigation, prosecution and adjudication. The Act provides that the Registry is to be established at every State Police Command which shall keep and transmit criminal records to the Central Records Registry. The Act also makes it mandatory for the Chief Registrar to transmit decisions of court in all criminal trials to the Central Criminal Records Registry within 30 days after delivery of judgement. Its worthy to note that even though this is not a provision in the ACJL, the Ministry of Justice Lagos State has established a Crime Data Registry to monitor cases from the police, prisons, Ministry of justice and the Courts. It is domiciled and staffed by the Ministry of Justice. Its a welcome innovation that the ACJA includes a register for Court decisions in all criminal trials. 7

8 Cont d Ø S.24 (1) ACJA- The Chief Magistrate or where there is no Chief Magistrate within the police division any magistrate designated by the Chief Judge for that purpose, shall at least every month, conduct an inspection of police stations or other places of detention within his territorial jurisdiction other than the prison s.34(2)(3) This is a welcome development as this will reduce the number of people in police custody and unnecessary detention but the question arises as to who would monitor if these visits are carried out, the CJ however is consistent with her visits to the prisons, during which period she exercise her power in the release of inmates who have been unduly detained. 8

9 Ø S 104 Part 10 & Part 11 Ø Power of the Attorney General are as set out in the provision of ACJL 2011 and power of the HAG/CJ. Part 12 - Institution of Proceedings S.110(4) states that: where a charge is proffered under subsection( 1) paragraphs (a) and (b) of this section and the trial does not commence within thirty days of bringing the charge, or trial has commenced but has not been completed after one hundred and Eighty days of arraignment on that charge the court shall forward to the Chief Judge the particulars of the Charge and reasons for failure to commence the trial or to complete the trial (5) A Court siezed of criminal proceedings shall make quarterly returns of the particulars of all cases, including charges, remand and other proceedings commenced and dealt with in his court within the quarter to the chief judge 9

10 Cont d (7) The administration of Criminal Justice Monitoring Committee, shall have powers to consider all returns made to the Chief Judge under subsections (4) and (5) of this section for the purpose of ensuring expeditions disposal of and the National Human Rights commission set up under the National Human Rights commission Act shall have access to the returns on request to the Chief Judge. Its worthy to note that S.111 which provides for the Comptroller General of prisons to make return every ninety days (90days) to the Chief Judge of the Federal High Court, Chief Judge of the Federal Capital Territory and the Chief Judge of the State in which the prison is situated and to the Attorney General of the Federation of all persons awaiting trial held in custody in Nigerian prison for a period beyond one hundred and eighty days from date of arraignment. This would assist in the adequate data keeping of the inmates. 10

11 Cont d S.187 Registration of bonds person/stake holders meeting has been held to sensitize people on the issue of bonds men but same is yet to take off fully even though an advisory committee has been inaugurated by the Chief Justice of Lagos State. S of ACJL puts the burden of payment of witness expenses on the office of the Attorney General of the state. S.252 where a person attends court as a witness to give evidence for the defence the court may in its discretion or application order payment by the Registrar to such witness of court such sums of money,as it may deem reasonable and sufficient to compensate the witness for the expenses he reasonably incurred in attending the court. 11

12 Cont d S.253 The Court may permit on application of a party, an adjournment of the proceedings, and in so doing may order the party seeking the adjournment to pay to a witness present in court and whose evidence it has not been possible to take owing to the adjournment such sum in the amount payable to a witness in accordance with S.251 & 252 of this Act, or such sum as the court may fix. S.254- The amount of the Expenses payable to a witness pursuant to Section 251 and 252 of this act shall be processed and paid by the Registrar of the Court to the witness out of the relevant vote as appropriate by the judiciary. 12

13 HIGHLIGHT OF THE PROVSIONS OF Cont d S.268 ACJL After the Defendant has pleaded not guilty to the charge or information the person appearing for the defendant may open the case with an opening statement and then adduce evidence in support of the charge. This provision I must say is yet to be put into effect. The court needs to be made aware of the use of this provision. Section 270 INTRODUCTION OF PLEA BARGAIN - S. 28 ACJA The defence can write to the Attorney General for plea bargain The prosecution may enter into plea bargaining with the defendant, with the consent of the victim or his representative during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence. The IPO must also be informed of the plea bargaining agreement. 13

14 Cont d The provision refers to conditions that must be considered before plea bargaining. The Court may disagree with the number of sentencing irrespective of the agreement reached by the parties. In Lagos, we have devised a template plea bargain agreement to ensure uniformity. This conforms with the provision of S of ACJL and this provision has been utilized extensively and the result has been a reduction of the number of cases in court. It has breached the gap in the time spent in court, cost and waste of man powers. Cases where defendants plead guilty and dispensed with promptly. 14

15 REMAND PROCEEDINGS UNDER ACJA S of the ACJA provides that a suspect shall not be remanded for not more than 14 days at first instance and renewable for a time not exceeding fourteen days where good cause is shown. At the expiration of the remand order, if Legal Advice is still not issued, the court shall issue hearing note to the Inspector General of Police and Attorney General of the Federation or the Commissioner of Police or any other authority in whose custody the suspect is remanded to inquire into the position of things and adjourn for another period not exceeding fourteen days for the above mentioned officials to come and explain why the suspect should not be released unconditionally. 15

16 Cont d Where good cause is shown, the court shall remand for a period not exceeding fourteen days for arraignment of the suspect and where good cause is not shown, the court shall have power to discharge and release the suspect. This is similar to s. 264 ACJL. The time provided for in Lagos is 30 days S. 300 makes provision for the prosecution to open the case against the defendant stating shortly by what evidence he expects to prove the guilt of the defendant. S.306ACJA Stay of proceedings in respect of a criminal matter before the court shall not be entertained. S.273 of the ACJL has a similar provision. There are allegations that this provision breaches fundamental rights of suspects. 16

17 RAISING PRELIMINARY OBJECTIONS DURING TRIAL AND ENSURING SPEEDY TRIAL S. 396(1) now mandates all objection to be raised after plea has been taken Provision for day to day trial and Not more than five (5) adjournment is allowed from arraignment to final judgement. Where day to day trial is impracticable, Interval to each adjournments shall not be more than seven days apart. S.396 (2) After the plea of defendant to the information or a charge has been read, it shall no longer be open to that defendant to raise any objection to the validity of the charge or information. 17

18 THE ACJA, 2015 viz a viz ACJL, 2011(Cont d) S.396 (3) Upon arraignment the trial of the defendant shall proceed from day to day until the conclusion of the trial where day to day trial is impracticable after arraignment no party shall be entitled to more than five adjournments from arraignment to final judgment provided always that the interval between each adjournment shall not exceed fourteen days (14) where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournment each, the interval between one adjournment to another shall not exceed seven days inclusive of weekends. This is quite novel and if adhered to strictly there will be requisite speed in criminal trial 18

19 (Cont d) S. 396(6) provides for payment of cost in order to discourage frivolous adjournment. S.396(7) ACJA - EFFECT OF ELEVATION TO THE COURT OF APPEAL FROM THE HIGH COURT. This is indeed another novel provision in the ACJA. Section 396 (7) ACJA provides that a High Court Judge elevated to the Court of Appeal shall have the discretion to continue to sit as an High Court Judge only for the purpose of concluding any part- heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time. Ø This is section will surely be the beginning of the end of the delay and waste of efforts suffered by Counsel and Litigants when a judge hearing their matter is suddenly promoted to the Court of Appeal. 19

20 THE ACJA, 2015 viz a viz ACJL, 2011(Cont d) S. 462 INTRODUCTION OF COMMUNITY SENTENCING AS SENTENCING OPTION There shall be established in each judicial division a Community Service Centre to be headed by a Registrar who shall be in charge of monitoring the execution of community service orders in that division. Unlike what obtains in Lagos, The State Attorney General after consultation with the Commissioner for Social Development appoints a Community Service Officer. The Unit is headed be a Lawyer and qualified social worker. This option of sentencing if properly utilized, will reduce the overcrowding in Prisons, limit the interaction between defendants who have committed serious offences with those that committed minor offences, and immediately return to their families. 20

21 THE ACJA, 2015 viz a viz ACJL, 2011(Cont d) S. 469 provides for the Establishment. Establishment of Administration of Criminal Justice Monitoring Committee under s. 469 of the ACJA which comprises of the following members: The Chief Judge of FCT The Attorney General of the Federation Judge of the Federal High Court Inspector General of Police or representative Controller of Prisons Executive Secretary of National Human Rights Commission Chairman Local Branch of NBA in the FCT DG Legal Aid Council Representative of Civil society as may be approved by the committee 21

22 HOW TO ACHIEVE SUCCESSFUL IMPLEMENTATION OF ACJA The commitment of the AGF and other stakeholders in the Justice Sector reforms Public Awareness about the new law and support of the citizenry Enlightenment on rights of suspects. Co-operation and training of Court Registrars, Counsel in the Ministry of Justice, Private Lawyers, NBA, Police, Prisons and Judiciary who will implement this law. Funding must be in place to finance the equipment's. Develop a maintenance culture and make provision for same. Regular meetings of the Implementation Committee to discuss lapses and proffer solutions. Co-operation and synergy between the different stakeholders. 22

23 CONCLUSION The ACJL Lagos State has been in existence since 2007, same was amended and ACJL 2011 came into being, yet there are still areas that are yet to be put to use. It will however take time to get a good grasp of the ACJA especially states that are still in archaic age of CPA and CPC. With the co operation of all stakeholders, the ACJA would be very effective and bring the most desired changes to the Administration of Criminal Justice in Nigeria. 23

24 THE END THANK YOU 24