THE 2012 DRAFT RULES OF PROFESSIONAL CONDUCT.

THE 2012 DRAFT RULES OF PROFESSIONAL CONDUCT. The Responsibilities of the prosecuting and defence lawyers in Criminal Proceedings By: J.S. Okutepa, Esq., SAN. Being a paper delivered at the Academic Forum of Nigeria Bar Association (NBA), at the 2013 Annual General Conference held at Tinapa, Calabar, Cross Rivers State, on the 27 th August, 2013. 1.00. Let me thank the leadership of Nigeria Bar Association (NBA) and the Academic Forum of our forever great Association, NBA, for the opportunity given to me to be part of those who are to compare the 2007 Rules of Professional Conduct with the 2012 Draft Rules of Professional Conduct. I consider this opportunity a rare privilege. I will do my best; this is more so as a practicing Lawyer I do not consider myself an academic lawyer to be invited by the distinguished Academic Forum of the Bar. I consider myself as an advocate in the strict sense of the word. However, being bound to observe and obey these Rules in the course of my professional duties either as counsel to the accused or the prosecution, I should be conversant and be able to discuss the Rules. Disciplinary Committee(LPDC) of Body of Benchers. Page 1

1.02 The lead paper, I understand is to ex-ray what is wrong with the 2007 Rules of Professional Conduct and compare and contrast the 2012 Draft Rules. However from what was assigned to me, my duty here is to discuss the responsibilities of Lawyers in criminal proceedings under the 2012 Draft Rules. I have just 15 minutes to do so. I proceed to do it now. 1.03. Before then it is appropriate to know when criminal proceeding commences in our criminal jurisprudence. According to the Supreme Court criminal proceedings commence with arraignment, which in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon. See Lufadeju vs Johnson (2007) 8 NWLR (Pt. 1037) 533 at 572 where his Lordship Onnoghen JSC held that: Trial in a criminal case is said to commence with arraignment which in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon. And in Effiom v. State (1995) 1 NWLR (Pt.373) 507, it was held that trial of an accused person commences when his plea is taken. Disciplinary Committee(LPDC) of Body of Benchers. Page 2

1.04. What then are the responsibilities of the Prosecuting and defence Counsel under the 2012 Draft Rules. The answer can be found in the Draft Rules. Let me begin with the Responsibilities of prosecuting counsel, then the duties of the defence counsel and make an attempt to compare these duties as contained in the 2007 Rules. This will enable us see in conclusion how these duties have been observed by lawyers and the consequences of non observance. 2.00. RESPONSIBILITIES OF PROSECUTING LAWYER: 2.01. These responsibilities are set out in Rule 82 of the Draft Rules 2012. It provides that: The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. Accordingly a prosecuting lawyer should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the court Disciplinary Committee(LPDC) of Body of Benchers. Page 3

on all matters of law applicable to the case. 2.02. Rule 83 prohibits persecution and encourages prosecution of criminal cases only if there is clear evidence available in support of the prosecution. It provides that: A public prosecutor shall not institute or cause to be instituted a criminal charge if he knows or ought reasonably to know that the charge is not supported by the probable evidence. It is hoped that when these Rules are enacted and become law, political persecution in the name of the state, would be minimized. It is not difficult seeing these days prosecutions that are politically motivated, all instituted purely to humiliate political opponents. If prosecuting lawyers know that they can be brought to book, I think with respect that they may think twice before filing charges that are frivolous and clearly abuse of not only criminal process but the liberty of the accused person. 2.03. Under Rule 84, lawyer engaged in public prosecution shall not suppress facts or secrete witnesses capable of Disciplinary Committee(LPDC) of Body of Benchers. Page 4

establishing the innocence of the accused persons; but he shall make timely disclosure to the lawyer for the defendant, or to the defendant if he has no lawyer, of the existence of evidence known to the prosecution or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offence or reduce the punishment. Flowing from the above, Rule 85 of the 2012 Draft Rules enjoins prosecuting lawyers to bear in mind at all times whilst he is instructed: a. That he is required to be impartial and independent and to recognize his overriding responsibility to the due administration of justice. b. That he is personally responsible for the presentation and general conduct of the case; c. That he should use his best endeavour to ensure that all evidence or material that ought properly to be made available is either presented by the prosecution or disclosed to the defence. 2.04 The Draft Rules also encourages prosecuting lawyers to be thorough, diligent and to promptly acquaint his or Disciplinary Committee(LPDC) of Body of Benchers. Page 5

herself in all aspects of the intending prosecution. It provides in Rule 86 thus: Prosecuting lawyer should, when instructions are delivered to him, read them expeditiously and, where instructed to do so, advise or confer on all aspects of the case well before its commencement. 2.05. In Rule 87 and in relation to cases tried in the High Courts, prosecuting lawyer; a. Should ensure, if he is instructed to settle an indictment, that he does so promptly and within due time, and should bear in mind the desirability of not overloading an indictment with either too many defendants or too many counts, in order to present the prosecution case as simply and as concisely as possible; b. Should decide whether any additional evidence is required and, if it is, should advise in writing and set out precisely what additional evidence is required with a view to serving it on the defence as soon as possible; c. Should consider whether all witness statements in the possession of the prosecution have been properly served on the defendant; Disciplinary Committee(LPDC) of Body of Benchers. Page 6

d. Should eliminate all unnecessary material in the case so as to ensure an efficient and fair trial, and in particular should consider the need for particular witnesses and exhibits and draft appropriate admissions for service on the defence. Subject to the above, it is for prosecuting lawyer to decide whether to offer no evidence on a particular count or on the indictment as a whole and whether to accept pleas to a lesser count or counts. 2.06. These days we see indictments or charges filed by prosecuting lawyers running into volumes of so many pages that before the counts or charges are read and pleas of accused persons taking, valuable time is wasted. The 2012 Draft Rules seem to be prohibiting these fanciful and avoidable practices as can be seen in Rule 87(a) thereof. It is not uncommon to hear that an accused has been arraigned upon 250 counts or more charge by the Economic and Financial Crimes Commission (EFCC). Indeed there is this practice of EFCC splitting offences that arose from the same transactions into so many counts and arraigning the accused persons before different courts, in a bid to be seen as doing their work, when in the strict sense such Disciplinary Committee(LPDC) of Body of Benchers. Page 7

conduct amounts in my view with due respect, to a serious disservice to criminal justice administration. Filing of many charges in different courts have been deprecated by our courts, and the Draft Rules to me is a welcome development. See Edet vs. State (1988) 3 NSCC 175. No citizen should be subjected to persecution by the State. The Courts frown at such action and will not hesitate to deprecate it even if no remedy has been provided by law. 2.07. All power to settle issues between parties is vested in courts and court must be vigilant that genuine issues and controversies are settled so that no accused person will be oppressed either directly or indirectly through act of prosecution; if not we shall have persecution in place of prosecution. It is for this reason that an accused person, despite the power to file indictment on information, should not be indicted to face trial that from the outset it was clear he should not face. See the cases of Ikomi vs The State (1986) 3 NWLR (Pt. 28) 340, 356; Egbe vs The State (1980) 1 NCR, 341; Okoli vs The State (1992) 6 NWLR (pt. 247) 381; Enuma vs The Disciplinary Committee(LPDC) of Body of Benchers. Page 8

State (1997) 1 NWLR (Pt. 479) 115, at 121 to 122. 2.08. In the case of Ikomi vs State (supra) the Court further held thus: The courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies. This powers of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked (emphasis supplied). See also the case of Uhwovoriole vs Federal Republic of Nigeria (2003) 2 NWLR (Pt.803) 176 at 194 to 195, where the Supreme Court Per Kalgo JSC (as he then was) stated thus: "The court below as well as the trial court erred in finding prima facie case for the appellant to answer. At best, what is in the proofs of evidence amounts to serious suspicion that the Appellant knows more that he adverts to. Suspicion however well placed does not Disciplinary Committee(LPDC) of Body of Benchers. Page 9

amount to a prima facie evidence; more facts than are now in the printed record will be needed to nail the Appellant to his being required to explain. The prosecution must be wary of being accused of persecution rather than prosecution." (Emphasis supplied).it is my view that one solid and viable count with empirical evidence in support is enough to do the magic under the law. 2.09. Furthermore, under Rule 88 it is the duty of prosecuting lawyers to assist the court at the conclusion of the case by drawing attention to any apparent errors or omissions of fact or law. In the area of sentencing, there are duties imposed on the prosecuting lawyer. In furtherance of this duty, Rule 89 outlines that the prosecuting lawyer: a. should not attempt by advocacy to influence the court with regard to sentence, if, however, a defendant is unrepresented it is proper to inform the court of any mitigating circumstances about which the lawyer is instructed; b. should be in a position to assist the court if requested as to any statutory provisions Disciplinary Committee(LPDC) of Body of Benchers. Page 10

relevant to the offence or the offender and as to any relevant guidelines as to sentence; c. should bring any such matters as are referred to in (b) above to the attention of the court if in the opinion of prosecuting lawyer the court has erred; d. Should draw the attention of the defence to any assertion of material fact made in mitigation which the prosecution believes to be untrue, if the defence persist in that assertion, prosecuting lawyer should invite the court to consider requiring the issue to be determined by the calling of evidence. 2.10. Again in my humble view Rule 89 of the draft Rules will assist the Bar to deal with some practices by some prosecuting lawyers who have now chosen to play to public gallery in prosecution of cases. It is not uncommon to hear prosecuting lawyers urging upon the court to impose sentence reasonably enough to assuage the public feelings. There are no provisions in our criminal law for any judge to gauge public feelings in imposing sentence. Judges have been punished upon this nebulous and dangerous practice. I am speaking of the popular case of Mr. John Yusuf. We are all familiar with the story but not many of us Disciplinary Committee(LPDC) of Body of Benchers. Page 11

here have had the privilege of reading the record of the court. I have, let me share what I read. This is what EFCC prosecutor said when the convict pleaded guilty and he was convicted by the learned trial judge. Hear him: There is no evidence of previous conviction. We urge the court to impose a sentence reasonably enough to assuage the feelings of Nigerians and, indeed, the Police pensioners. As long as we allow this kind of thing to continue we are finished. Nigerians were incited against Hon. Justice A.M.Talba by prosecutor that there was an agreement for custodial sentences against Mr. John Yusuf. That was not true. Prosecutor did not make such application. Rather from the CTC of the judgment tendered before National Judicial Council (NJC) committee that investigated the Anti-Corruption Network s petition this is what the prosecution applied for: There is no evidence of previous conviction. We urge the court to impose a sentence reasonably enough to assuage the feelings of Nigerians and, indeed, the police pensioners. This can be found at page 2 of the proceeding of 28/1/2013. The accused/convict was Disciplinary Committee(LPDC) of Body of Benchers. Page 12

arraigned under section 309 of penal code. If a judge exercised his or her discretion within the ambit of the law in sentencing a convict who confessed to an offence that carries maximum two years jail term to that two years term, with an option of fine and he exercised that option within the frame work of the law, should such a judge be disciplined for exercising his judicial discretion? Is it within the power of NJC to punish a judge for exercising discretion even if wrongly exercised though not conceding? What is the job of the appellate courts, if judges are now to be perfect? Is NJC an appellate court? Why should a judge be punished for performing his judicial functions? Is there no jurisdiction in the judge to err? I am worried that if we are not careful with the way we subject our judicial officers to disciplinary proceedings before NJC on purely issues of exercise of judicial discretion, we may infuse timidity into our judicial officers and they may become judicial zombies in other to keep their jobs. That will be too bad for liberties and the much cherished freedom. I am not saying that NJC should not exercise its power over corrupt judicial officers. No. I will not say so Disciplinary Committee(LPDC) of Body of Benchers. Page 13

and I am not saying so. But to play to public gallery and punish a judge for doing his job is bad and too bad a precedent to set. We must rise in defence of liberties and freedom of all concerned. That is my appeal. We must learn to build institutions within the frame work of law and due process. I have tried to see justification in what NJC did in suspending Hon. Justice A.M.Talba, for 12 months without pay, and I cannot see any in law and fact, other than that NJC did what it did in other to assuage the feelings of uninformed Nigerians who were led to believe by the stories of EFCC in the print and electronic media that there was an agreement with the learned trial judge for custodial sentences and not imposition of a fine. Was there any such agreement? There was none and EFCC prosecutor should be called upon to produce it for all to see just like the record of proceedings of Justice Talba is there for all to see. What offence did Hon. Justice Talba commit? There is evidence on record that the charge against Mr. John Yusuf was amended and the amended charge provided for maximum of two years. The learned trial judge sentenced Mr Yusuf to those two years. The Disciplinary Committee(LPDC) of Body of Benchers. Page 14

law provide for imposition of fine. He gave the said fine. In addition Mr. Yusuf was ordered by the Judge to forfeit N327million cash and 32 Number of properties in Abuja and one in Gombe. EFCC prosecutor who should have the record of previous conviction of Mr. Yusuf said he was a first offender. The law as I know it is that prosecutor should not ask for the maximum sentence. In Enahoro vs. The Queen (1965) N.M.L.R 265 at 283 the Supreme Court per Idigbe J.S.C, as he then was, held thus: At the trial the learned Acting Director of Public prosecutions appearing for the crown asked for the imposition of the maximum sentence. We do not consider this a desirable course for a counsel for the crown or state to take in a matter of a sentence which should be left in the discretion of the judge. 2.11. It is hoped that when the draft Rules become law, NBA, as a professional association, will have the courage and power to enforce them. In all, if the prosecution has a case to be pursued as set out herein, the burden is always on the prosecution to prove the guilt of the Disciplinary Committee(LPDC) of Body of Benchers. Page 15

accused beyond reasonable doubt. This is sufficiently trite for me to cite any decided case. Let me move to the responsibilities of the defence lawyer under the 2012 Draft Rules. RESPONSIBILITIES OF DEFENCE LAWYER 3.00 Rule 90 provides that where the lawyer accepts a brief for the defence in a murder trial, he shall be deemed to have given a solemn undertaking, subject to any sufficient unforeseen circumstances, that he will personally conduct the defence provided his fee is paid. Rule 91 provides that when defending a client on a criminal charge, a lawyer must Endeavour to protect his client from conviction except by a competent tribunal and upon legally admissible evidence sufficient to support a conviction for the offence charged. Rule 92 requires that a lawyer acting for the defence: a. Should satisfy himself, if he is briefed to represent more than one defendant, that no conflict of interest is likely to arise; b. Should arrange a conference and if necessary a series of conferences with his professional and lay clients; Disciplinary Committee(LPDC) of Body of Benchers. Page 16

c. Should consider whether any enquiries or further enquiries are necessary and, if so, should advise in writing as soon as possible; d. Should consider whether any witnesses for the defence are required and, if so, which. e. Should consider whether it would be appropriate to call expert evidence for the defence and, if so, have regard to the Rules of the High Court in relation to notifying the prosecution of the contents of the evidence to be given; f. Should ensure that he has sufficient instructions for the purpose of deciding which prosecution witnesses should be crossexamined, and should then ensure that no other witnesses remain fully bound at the request of the defendant.; g. Should consider whether any admissions can be made with a view to saving time and expense at trial, with the aim of admitting as much evidence as can properly be admitted in accordance with the lawyer's duty to his client; h. Should consider what admissions can properly be requested from the prosecution; i. Should decide what exhibits, if any, which have not been or cannot be copied he wishes to examine, and should ensure that appropriate arrangements are made to examine them as Disciplinary Committee(LPDC) of Body of Benchers. Page 17

promptly as possible so that there is no undue delay in the trial. j. Should as to anything, which he is instructed, to submit in mitigation, which casts aspersions on the conduct or character of a victim or witness in the case, notify the prosecution in advance so as to give prosecuting lawyer sufficient opportunity to consider his position. k. A lawyer acting for a defendant should advise his client generally about his plea. In doing so he may, if necessary, express his advice in strong terms. He must, however, make it clear that the client has complete freedom of choice and that the responsibility for the plea is the client's. l. A lawyer acting for a defendant should advise his client as to whether or not to give evidence in his own defence but the decision must be taken by the client. 3.01. Following Rule 93, where a defendant tells his lawyer that he did not commit the offence with which he is charged but nevertheless insists on pleading guilty to it for reasons of his own, the lawyer should: a. Advise the defendant that, if he is not guilty, he should plead not guilty but that the decision is one for the defendant; the lawyer must continue to represent him but Disciplinary Committee(LPDC) of Body of Benchers. Page 18

only after he has advised what the consequences will be and that what can be submitted in mitigation can only be on the basis that the client is guilty; b. Explore with the defendant why he wishes to plead guilty to a charge, which he says he did not commit, and whether any steps could be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence. 3.02. If the client maintains his wish to plead guilty, Rule 94 requires that he should be further advised: a. What the consequences will be, in particular in gaining or adding to a criminal record and that it is unlikely that a conviction based on such a plea would be overturned on appeal; b. That what can be submitted on his behalf in mitigation can only be on the basis that he is guilty and will otherwise be strictly limited so that, for instance, the lawyer will not be able to assert that the defendant has shown remorse through his guilty plea. 3.03 If following all of the above advice, Rule 95 requires that if the defendant persists in his decision to plead guilty; Disciplinary Committee(LPDC) of Body of Benchers. Page 19

a. The lawyer may continue to represent him if he is satisfied that it is proper to do so; b. Before a plea of guilty is entered the lawyer or a representative of his professional client who is present should record in writing the reasons for the plea; c. the defendant should be invited to endorse a declaration that he has given unequivocal instructions of his own free will that he intends to plead guilty even though he maintains that he did not commit the offence(s) and that he understands the advice given by the lawyer and in particular the restrictions placed on the lawyer in mitigating and the consequences to himself; the defendant should also be advised that he is under no obligation to sign; and d. If no such declaration is signed; the lawyer should make a contemporaneous note of his advice. THE RESPONSIBILITIES OF PROSECUTING AND DEFENCE LAWYERS UNDER THE 2007 RULES AND THE 2012 DRAFT RULES 4.00. The duties and responsibilities of the prosecuting and defence lawyers under the Disciplinary Committee(LPDC) of Body of Benchers. Page 20

2012 Draft Rules seem to me to be more expansive, elaborate and all embracing than we have under the 2007 Rules. As can be seen from the draft Rules and the 2007 Rules, while Rules 82-96, (15 Rules in all), have been devoted to the duties and responsibilities of prosecuting and defence lawyers, the 2007 Rules contain only two Rules, that is Rules 37-38 on the issue. 4.01. Clearly in my view the 2012 Draft Rules appear to have covered more grounds and make more meaning and sense of our duties and responsibilities in black and white. It is submitted that what we require as an association is adequate publicity of the new Rules when enacted into law. We also need to be more committed to enforcing the Rules than we do now. We don t seem to have the political will to enforce our rules. There is much interference from strange quarters in the process of enforcing our rules. We either resolve to enforce our Rules or we say good bye to discipline in the legal profession. The Bar and the Bench must be courageously collaborative in this regard. In a situation where some lawyers have chosen to allow themselves to be used or to be prostituted Disciplinary Committee(LPDC) of Body of Benchers. Page 21

by litigants both in civil and criminal proceedings to the detriment and prejudices of due process and administration of justice, and the bench have not risen to curtail these excesses calls for serious concern. After all the Bar and Bench are partners in administration of justice. CONCLUSION 5.00. In conclusion and from practice in courts, it appears to me that Lawyers, both the prosecuting and defence in most cases, observe the rules of professional conduct in breach. Some lawyers do not give prompt and due attention to these duties and responsibilities bestowed on them by law and professional callings. Some lawyers handle briefs causally and haphazardly without professional commitments expected of reasonable advocates. Accused persons in most cases suffer unjustly and spend more time in detention than necessary. It is hoped that when the new Draft Rules become law and we enforce them, as we ought to do, as a professional association, sanity will be restored to the bar and bench in the administration of criminal justice. Finally, the consequences of both the Disciplinary Committee(LPDC) of Body of Benchers. Page 22

prosecuting and defence lawyers failing to observe these rules of professional conduct are very grievous indeed. The lawyers are likely to be brought before the Legal Practitioners Disciplinary Committee, (LPDC) of the Body of Benchers and if found guilty professional misconduct or infamous conduct in professional respect, the names of the such lawyers can be ordered to the struck of the Roll of legal practitioners in Nigeria. I hope you will not do any act that may bring you before the Legal Practitioners Disciplinary Committee (LPDC). The only way to avoid been brought there is to observe and do all that the Rules of professional conduct enjoy you to do as lawyer. Thank you all for giving me your attention. Disciplinary Committee(LPDC) of Body of Benchers. Page 23