RIGHTS OF A SUSPECT/PERSON WHEN ACCUSED OF A CRIME

1. The presumption of innocence
Under section 36(5) of the 1999 Constitution every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Also, section 138(1) of the Evidence Act provides for proof beyond reasonable doubt in respect of any allegation of commission of an offence against the person accused of a crime. The rationale for these legal principles cannot be over-stressed when juxtaposed with the undeniable reality of the fallibility of our criminal justice system, borne out of snippets of shortcomings, prejudices and procedural irregularities associated with criminal justice administration, in Nigeria.

In view of the above constitutionally guaranteed right of the citizen, any person who is accused of an offence is entitled to be presumed innocent of the allegation until the contrary is proved. Therefore he should be treated not as an offender or criminal even before trial, but as a citizen whose rights are fully preserved and protected by law. Such rights are not by any stretch of conjecture or imagination, whittled down by the fact of his arrest or interrogation in connection with an offence. See the dictum of Kairibi Whyte JSC, (as he then was) in Adeyemi v. The State.

It is saddening to observe clear violations of this right by law enforcement agents who subject suspects and accused persons to unconscionable brutalities and victimization in the process of arrest and interrogations. Sometimes these agents deny the accused persons access to their fundamental rights, as guaranteed for them under the Constitution as innocent persons until proven guilty by a court of competent jurisdiction.

This illegal and highly prejudicial practice must be penalized by the court, to serve as deterrents to others. Culprits should be appropriately sanctioned, in accordance with the provisions of section 36(6) of the Constitution. This section makes provisions for the payment of compensation and public apology from the appropriate authority or person, to any person who is unlawfully arrested or detained by over zealous law enforcement agents.

2. Right of silence when accused of a crime
Section 35(2) of the 1999 Constitution states that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. In addition, section 35(11) of (he same Constitution provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. It is the fundamental right of every citizen who is arrested or detained in connection with an allegation of crime, to remain silent or not to answer any questions put to him until he obtains the services of a lawyer or any other person of his choice.

This right of silence, usually incorporated into the police charge sheet and statement forms, but hardly explained to suspects, transcends access to counsel or a person of his choice, to cover post-consultation periods. He is entitled, by law. to still remain silent and not answer questions posed to him by the police or other authorized persons, having no duty in law to prove his innocence in law.

The crux of this right is the necessity to protect a person from self- incrimination before a charge is formally preferred against him. It also gives fillip to the other kindred rights of presumption of innocence preserved under section 36(5) of the Constitution, which places the burden of proof of an offence on the prosecution beyond reasonable doubt and the failure of which the accused is entitled to an acquittal, either suo motu or on the application of his counsel pursuant to section 286oftheCPA.

Over time conscious efforts have been made by civilized societies to protect and preserve the inalienable rights of accused persons to presumption of innocence. One of such efforts was the development of a body of rules governing procedure for obtaining statements and interrogation of suspects under the common law criminal justice system. This body of rules was appropriately called "The Judges Rules."

The Judges Rules was adopted and affirmed by an American court, in the case of Miranda vs. Arizona The gravamen of the right otherwise known as "Miranda right," is that a suspect has a right not to be compelled to talk and any statement obtained from him during interrogation cannot be used against him in his trial unless there is proof that the suspect fully understood that:
(a) He had the right to remain silent.
(b) That anything said by him could be used against him in court.
(c) That he had a right of access to an attorney of his own choice, both at the police station and elsewhere.

An accused person in the process of interrogation by the police or other authorized agents must insist on consulting a legal practitioner before volunteering any statement. Once he does that should halt any further action by the police against him. The Judges Rules is a procedure well received and affirmed by our courts, as a guide to determining the propriety or otherwise of statements obtained from suspects during police interrogations.

In Oyegbemi v. The Attorney General of the Federation, an article titled, Armed Robbers Kill 2 Persons, published by the Daily Sketch Newspaper (now defunct) was considered false and offensive. The Editor was then arrested. During interrogations he refused to disclose his source of information and as a result he was charged with the offence of conspiracy to commit felony.

The court at the end of trial, in apparent deference to the Judges Rules, held that a person who is arrested or detained by the police as suspect in respect of an offence is entitled to remain silent when confronted with the offence and is not obliged to make any statement at all. He can remain silent or mute in exercise of his fundamental rights guaranteed to every citizen whether he is a journalist or not.

3. Right to make voluntary statement
An adjunct to the right of slience discussed above is the kindred right of the suspect to make statement as a matter of choice not by compulsion or under force of coercion or duress, when being confronted with allegation of commission of an offence. The Judges Rules have made ample provisions to guide the police in their interrogations and investigation of crimes, including, the legitimate ways and means of obtaining statements from suspects.

For any statement to be valid under these rules, it must be obtained under caution, with prior notification to the suspect of its implications as well as his right not to make the statement, if he so wished. It must also be made voluntarily by the suspect, and in the course of such a voluntary statement the suspect should not be asked questions or cross examined by the police, such as to extract unfavourable information from him except to clear any ambiguities in his statement, if any.

Of particular significance is Rule 8 of the Judges Rules, which provides that, when two or more persons are charged with the same offence and statements are' taken separately from them, the police should not read their statements to their co-accused persons, but each of such persons should be given a copy of such statements to read, without being prodded for any response, by the police.

In Saidu v. The State, the Supreme Court in apparent deference to the rules held that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement without which proof the statement is inadmissible as evidence against the maker.

Perhaps it is pertinent to note that the fact that a statement was not obtained in absolute compliance with the above rules does not automatically render the said statement inadmissible. It may still be admitted where the court is satisfied that it had in fact been voluntary and properly obtained. See R v. Jackson Akpan.

Under section 28 of the Evidence Act, Laws of the Federation, 1990;

"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature."

By virtue of section139(1)(a) of the same Evidence Act, the burden of proving that a confessional statement was duly obtained in compliance with requirements under section 28 rests on the prosecution and not on the accused person. However, whereas a person can rightfully confess to his own acts, knowledge or omissions, he cannot equally confess as to the acts of another which he had not seen and of which he can only have knowledge by hearsay. Failure of the prosecution to prove an essential element of the offence cannot be cured by an admission of the kind. See Surujpaul vs. The Queen where a conviction obtained based on the confessional statement of an accessory, which implicated the alleged principal offender, was quashed on appeal, on the ground that such plea of guilt by the accessory should not have been accepted as basis for convicting the principal party to the crime prior to establishing the guilt of the said principal offender.

In line with the usual requirements of valid statements to the police, for a confessional statement to be admissible it must not only be voluntary but it must also be free. A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. That situation hardly arises, since confessional statements are usually subjected to proper scrutiny, first by the police, and then by the before being accepted or rejected.

In Emeka v. The State, the Supreme Court held that a free and voluntary confession by a person, if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction, even though it is desirable to have outside the accused person's confession to the police some evidence, however slight, of the circumstances which make it more probable that the confession was true.

Where an accused person in the course of his trial challenges the admission of his confessional statement, on grounds of having been obtained from him not voluntarily but by duress or threat by the police at the time of interrogation, the court does not automatically disqualify the statement as being inadmissible. The Court may proceed to set up special enquiry to test the veracity of the accused person's claim, against the propriety of the mode of obtaining the piece of evidence vide facts and circumstances of the case before it.

This special trial is known in legal circles as, Trial within a Trial. In this trial, the sole issue for determination before the court is the voluntariness or otherwise of the disputed statement. The voluntariness of the evidence must be ascertained before trial in the main charge can resume. Section 139(1)(a) of the Evidence Act imposes the duty on the prosecution to prove voluntariness by credible and substantial evidence, and to contradict the accused person's allegation of having been forced to make the statement.

At the end of the special trial, it will be left to the court to decide whether the allegation of involuntariness of confession had been proved or not, and whatever decision it arrives at is taken as final.

It should be pointed out that the above procedure must be strictly adhered to by the courts. Any breach for deviation from it, will be fatal to the case of the prosecution, if made a ground of Appeal, in case of a conviction based on such disputed piece of evidence. The duty of the court where the accused person challenges the voluntariness of his confessional statement has been well spelt out, in the decision of the Supreme Court in Emeka v. The State thus:

"When an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty-of the court to test the confession by conducting a trial within g trial in order to determine whether in fact the statement was voluntarily made. Failure of the trial court to do so renders the statement inadmissible and all evidence admitted by virtue of the statement would be expunged." See also Obidiozor v. The State.

The onus of proof of voluntariness of confessional statement lies on the prosecution. He must also prove" beyond reasonable doubt that'' the confessional statement made by the accused person was free and voluntary. For the evidence of a confession to be admissible the trial court must be satisfied, on the basis of the totality of evidence led in the trial within trial, that the prosecution proved that the confessional statement was voluntary. See Emeka v. The State.

4. Right to be promptly informed of the offence against him
Generally, a person who is accused of an offence must be informed in the language he understands, the true grounds and reasons for his arrest. This proposition is in line with section 35(3) of the 1999 Constitution, which provides that; " Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in the language he understands) of the facts and grounds for his arrest."

It is obvious from this provision of the Constitution that any police officer or other authorized agent who effects an arrest of a person, whether with a warrant of arrest or not, must duly and promptly inform the person of the reason for his arrest. This information must be conveyed to him in the language he understands.

The purpose of this enactment is to provide the suspect with the earliest opportunity within which to respond properly and adequately to the allegation through counsel of his own choice. It will also protect his rights from wanton abuse and intimidation by overzealous and vindictive law enforcement agents, who take undue advantage of their position to humiliate and maltreat innocent citizens, either to settle private cores or at the behest and instigation of business associates or envious competitors.

A suspect or an accused person, who enjoys equal status by virtue of the presumption of innocence in his favour, like every other citizen, is entitled to know what charge or on suspicion of what crime he is being arrested and detained.

Where an accused person is not informed the grounds of his arrest and the police still goes ahead to detain him, the police officer concerned is liable for false imprisonment under the law. He would be bound to pay appropriate compensation to the victim, upon conviction by the court.

Viscount Simon in Christy vs. Leachinsky, had restated the guiding principles to ensure proper communication between the police and the suspect during an arrest as follows:

(a) "If a policeman arrests without warrant upon reasonable suspicion of felony or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(b) If the citizen is not so informed but is nevertheless seized, the policeman apart from certain exceptions is liable for false imprisonment.

(c) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained"

However, the above guidelines which are of persuasive authority, in our shores, are definitely not exhaustive, as each case will be viewed within the prisms of its own peculiar and special circumstances.

(5) Right to contact his lawyer, or any other person of his choice, before yielding to police arrest

Any person suspected or accused of committing a crime is entitled to per-interrogation rights, under the law, by virtue of section 35(2) of the Constitution. That section provides that "Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice."

The implication of the foregoing is that every suspect is guaranteed a pre-interrogation right to counsel and therefore the police and other interrogators are legally bound, not only to inform suspects of this right, at the time of his arrest, but also to fully avail him access to his counsel at every point of the interrogation. Unfortunately, most police interrogations are conducted in violation of this right, as the rules are usually observed more in breach than in compliance.

According to Niki Tobi JSC, "In practice, police and other law enforcement agents, detest and resist, consultations between suspect and counsel whether before, or during interrogations."

In most cases these police interrogators employ all sorts of intimidation, torture and undue influence to extract confessional statements from suspects, who are usually interrogated in the absence of their counsel.

This right which is a basic and fundamental constitutional entitlement of all citizens, remain the most crucial, as it is the fulcrum upon which other rights revolve. This underscored by its centrality as a gate way to the realistic exercise of all other rights of the citizen.