Practical Steps in Statement Taking and Innovations Under the Administration of Criminal Justice Act, 2015

1. PRACTICAL STEPS INSTATEMENT TAKINGAND INNOVATIONS UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015PAPER PRESENTED AT THE IN HOUSE TRAINING PROGRAMME, AT THE ICPC AUDITORIUM, ON 26TH OCTOBER, 2015BYEZEANA, IJEZIE SUNNY ESQ.LEGAL DEPT.ICPC, ABUJA.

2. INTRODUCTION Investigation as an activity, or series of activities, is fully entrenched and subsumed in one of the core mandates of the Commission. CORE MANDATES The core mandates of the Commission are well spelt out in Section 6 (a)-(f) of the Corrupt Practices and Other Related Offences Act, 2000; but of special interest to us in this exercise is the mandate set out in subsection 6(a) SECTION 6(a) It shall be the duty of the Commission – Where reasonable grounds exist for suspecting that any person has conspired to commit or has attempted to commit or has committed an offence under this Act or any other written law prohibiting corruption, to receive and investigate any report of conspiracy to commit, attempt to commit or the commission of such offence and in appropriate cases, to prosecute the offenders.

3. WE ARE EMPOWERED TO The core mandate in section 6(a) statutorily empowers us to: • Receive Complaint • Investigate, and • Prosecute Of particular interest to us today is the duty of investigation, and we shall look at a very important and critical component of the investigative process, and that is “Statement Taking” WE SHALL CONSIDER • Practical steps involved in taking statements, vis-à-vis relevant statutory requirements that must be complied with • Innovations introduced by the new Administration of Criminal Justice Act, 2015

4. DEFINITIONS • Statements are written documents made by invitees or arrestees in the course of investigation. • A definite, clear and deliberate expression of facts, things, events and occurrences in writing or written form. Any interface or interaction between an investigative officer and an invitee or arrestee, that does not translate into expression of facts and events in writing, cannot be referred to as statement for our purposes, but can at best be referred to as an interview, and in some extreme situations as interrogation

5. The importance of written statements in criminal proceedings cannot be overemphasized: The Court of Appeal in Professor Adenike Grange vs. FRN (2011) 6 NCC 384 held that the statement of the accused person forms part of the proof of evidence. In ratio 7 at page 390 of the judgment, the court stated that: “The essence of having statements attached to the charge sheet is to x-ray on the face of the statements, the prosecution’s case against the accused person. There must be sufficient facts of the culpability of the accused person, i.e.; there must be evidence linking the accused with the offence, however remote which calls for some explanation from the accused……”

6. PRACTICAL SESSION ON STATEMENT TAKING 1. INTERVIEW It’s a process that precedes statement taking. This is the earliest formal person to person interface between the investigator and invitee (suspect or possible witness). It is important to plan a list of questions about key points in the complaint that needs to be covered in the interview. Please note these about interviews: • They are conversations with a purpose • They are also means of gathering evidence and obtaining information • Good investigations demand good interviews

7. INTERVIEW (CONTD.) • Impart information to the interviewee, i.e., confront him with crucial information at the disposal of the investigator. An interviewee who has been denying some important facts, can make a u-turn and admit those facts at this stage. • Interview prepares the ground for the interviewee to make his statement freely with the knowledge that there’s nothing more to hide, because he is now well aware that a lot information are at the disposal of the investigator already. • Makes confessional statement smoother and easier; saves time when writing statement, so that statement taking doesn’t last too long, thereby creating room for challenging voluntariness of statements. A statement of two pages that lasts for 5 hours raises a lot questions regarding voluntariness.

9. INTERVIEW (CONTD.) • Note also the requirement in section 15(4) of the ACJ Act, 2015 that confessional statements must be recorded in video format. If there is no proper interview, then investigator will not know whether the suspect will make a confessional statement or not. Proper interview will assist the investigator in knowing if a confession is imminent, so that he will immediately arrange for video recording. • Statement taking itself is not to be a question and answer session. The question and answer session should be concluded during interview session.

10. INTERVIEW (CONTD.) The Supreme Court in Namsoh vs State (1993) 5 NWLR (part 292) 129 frowned at the practice of obtaining confessional statement from a suspect through the means of pre-prepared questions and answers. The Police Officer had a list of questions, which he was putting to the suspect, and the answers given by the suspect were recorded and produced in court as the suspect’s confessional statement. The court held that such statement cannot be a confessional statement, and cannot be said to have been made voluntarily. “…… where a statement is the product of a question and answer session between the accused and the police officer, such a statement cannot be regarded as free and voluntary…………and would not be legal evidence, and be inadmissible”

11. INTERVIEW (CONTD.)

12. PRACTICAL SESSION ON STATEMENT TAKING (CONTINUED) 2. STATEMENTS i. CAUTIONARY WORDS • The purpose of cautionary words is to safeguard against forcing people to make statements that result in the admission of guilt. • If a person has to make a statement that amounts to an admission of guilt, then such a statement has to proceed from that person voluntarily and not by force or other type of intimidation or inducement. • Statements are meant to be voluntary, and therefore not a matter of compulsion.

13. CAUTIONARY WORDS (CONTINUED) • One of the easiest ways of demonstrating voluntariness of a statement is the presence of cautionary words on the statement. • However, mere presence of cautionary words is not enough. It must be demonstrated that the cautionary words were shown to the invitee/arrestee, and he read and understood it. If he cannot read, it must be read over to him, and he signifies his understanding by signing under the cautionary words and inserting date. • Absence of cautionary words in a statement immediately raises a “red flag” as to the voluntariness of such a statement.

14. CAUTIONARY WORDS (CONTINUED) Features of Cautionary Words A cautionary word must be: • Clear and well written • Well understood by the maker of the statement • Signed or thumb printed • Date should also be inserted after signing In ChukwukaOgudovs The State (Suit No: SC.341/2010- Judgment delivered on Friday, the 9th day of December, 2011) the Supreme Court made it clear that cautionary words must be “well written and signed”.

15. CAUTIONARY WORDS (CONTINUED) Furthermore, in TajudeenIliyasuvs The State (2013) LPELR-20766 (CA) it was also emphasized at the Court of Appeal on the need to have the signature of the accused person or maker of the statement immediately after the cautionary words, as the presence of that signature signifies that the person understands the cautionary words.

16. CAUTIONARY WORDS (CONTINUED) In the “locus classicus” case of Kimvs State (1992) 4 NWLR (part 233) 17 at page 25 – ratio 14, the Supreme Court fully enunciated the principles on the formal requirements of a statement thus: • It must carry the usual forms of caution (cautionary words) • Each of the words of caution must be in the language understood by the maker • It must be followed by the maker’s thumb print or signature (as the case may be) • It must be recorded in the language understood by the maker • It must be read over and interpreted to the maker in the language in which it is made.

17. CAUTIONARY WORDS (CONTINUED) Note that Section 56 (3) of ICPC Act also mandates that when a person is arrested or informed that he may be prosecuted for an offence under the ICPC Act, the cautionary words which are provided in that subsection must be explained to him in writing. This is a statutory stipulation, and we have no discretion in the matter. CHALLENGES • During review of case files we have noticed some confessional statements that do not contain cautionary words, and when suspect was requested to re-make the statement under caution, he declined. If he is forced at that stage, the statement ceases to be voluntary.

18. CAUTIONARY WORDS (CONTINUED) • During case file review, we have also seen some confessional statements bearing unsigned cautionary words. The cautionary words will be visible, but not signed by the maker of the statement. The obvious interpretation of this is that the cautionary words were not administered to the maker of the statement. • In the past, the ICPC statement sheets do not contain printed cautionary words. The unacceptable practice of taking confessional statements without cautionary words, which we noticed in the past made the prosecutors to complain. The result of that agitation is that currently, cautionary words are now printed on ICPC statement sheets.

19. PROPERLY ADMINISTERED CAUTIONARY WORDS

20. CAUTIONARY WORDS (CONTINUED) Forms/Structure of Cautionary Words There are different forms. Few examples: • “You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in writing and may be given in evidence.” • “You are not under obligation to make a statement but whatever you say or write down may be used in court of law” For ICPC investigations, our standard cautionary words are as stipulated in section 56(3) as follows: “You have been arrested on the allegation concerning…………………………………..and whatever you say or write may be used in any court of law hereafter”

21. STATEMENTS (CONTINUED) ii. BODY OF THE STATEMENT • The part of the statement that contains the facts, information, events, activities and occurrences which the maker of the statement wishes to communicate or convey to the investigating authority. • Also the part of the statement that addresses the points in issue or the allegations in the complaint (petition) under investigation. • Most makers of statement commence this by giving information about themselves or their brief biography. Others prefer to go straight to address the complaint which they have been confronted with.

22. STATEMENTS (CONTINUED) MOST IMPORTANT CONSIDERATION • Whichever system the maker adopts, one cardinal principle which the investigator should have uppermost in mind is the need for voluntariness. This is because any statement found not to be voluntary will definitely be rejected in evidence, if properly challenged. • It should always be ensured that the making of the body of the statement is devoid of any kind of threat, promise, intimidation, oppression, harassment or inducement of any kind; either by word or by action

23. STATEMENTS (CONTINUED) Section 29 (2) of the Evidence Act, 2011 provides: “if in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained a. By oppression of the person who made it; or b. In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him, except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section”

24. STATEMENTS (CONTINUED) • Note also that in addition to subsection (2)(b), section 29(3) also indicate that the burden is always on the prosecution to prove that the statement was taken voluntarily. So whenever accused person challenges the admissibility of his own statement on the ground of involuntariness, it is the prosecution that carries the burden to prove that the statement was voluntary, and not for the defence to prove their assertion that the statement was not made voluntarily; and the standard of proof on the prosecution is ‘proof beyond reasonable doubt’. • See Ogunye vs. State (1995) 8 NWLR (part 413) 333 at 338 where the Court of Appeal held that “the burden is always on the prosecution to prove that a statement sought to be put in evidence was voluntarily made”

25. STATEMENTS (CONTINUED) Section 29(5) describes oppression as follows: In this section “oppression” includes torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture. Therefore, every effort should be made in the process of making statements to ensure that the statement was made voluntarily.

26. STATEMENTS (CONTINUED) iii. CONCLUDING PART OF THE STATEMENT

27. STATEMENTS (CONTINUED) The concluding part contains information which must be supplied correctly and carefully: • SIGNATURE/MARK OF WITNESS/ACCUSED: Must not be left blank. It is the maker that signs this portion, not the investigator. If the person cannot sign, he/her should make a thumb print. Even if the statement was recorded for a suspect, it is not the recorder that signs here, but the person on whose behalf the statement was recorded (the suspect or interviewee). • INTERPRETER’S SECTION: This is the section to be endorsed by any person who interpreted a person’s statement to him, especially in the case of an illiterate person.

28. STATEMENTS (CONTINUED) • LANGUAGE: The language in which the statement was taken must be specifically stated, and if the statement has been translated for the maker into any other language, it must also be clearly specified. • RECORDER’S SECTION:To be endorsed by the person who records a statement on behalf of the interviewee. This applies especially in the case of an illiterate person, or in respect of a person who for one reason or the other is not able to write down the statement with his own hands, but can dictate the statement by word of mouth. • If the maker wrote the statement himself, he should sign and date that recorder’s column. It is not for the investigator to sign that portion if the person made the statement by him/her self.

29. STATEMENTS (CONTINUED) • DURATION:The time of commencement of the making of the statement should be noted, and the time of conclusion should also be noted and both specified on the relevant spaces provided. This space should never be left blank.

30. ILLITERATE PERSONS We will consider illiterates as people who are unable to read and write English language, which is the official language of the Court. IMPORTANT POINTS TO NOTE: • Illiterate person is allowed to write statement in a language he understands. The statement shall be translated into English, and read over to him. When he confirms that what was read over to him is his true statement, he signs or thumb prints both the one he wrote in his native language and the translation. • Investigator prepares a certificate complying with section 59 of the ICPC Act, to be endorsed by the translator. The requirement of endorsing and dating the cautionary words also applies.

31. Illiterate person who cannot write in any language, is free to nominate any person to write his statement for him in any language of his choice. If his nominee writes in a language other than English language, translation shall take place, and the statements shall be read over and explained to the illiterate, who is required to sign or thumb print both the original and the translation. Certificate pursuant to section 59 will also apply. See AbayomiOlalekanvs The State (2001) 8 NWLR (part 746) 793: Supreme Court stated that statements should be recorded in the language they are made; and that where an interpreter has been used, both the person who recorded the statement, and the person who interpreted the statement must be called as witnesses, for the statement to be admissible in evidence.

32. Section 59(1) ICPC Act provides: “where any document which is to be used in any proceedings against any person for an offence under this Act, is in a language other than English Language, a translation of such document into the English Language shall be admissible where the translation is accompanied by a certificate of the person who translated the document setting out that it is a true and faithful translation, and the translation had been done by such person at the instance of the Chairman or an officer of the Commission”.

34. Statement Taking Innovations under the Administration of Criminal Justice Act, 2015 Recording of Statements of Suspects under Section 17 of the ACJ Act, 2015 Section 17(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” Comment: The underlined portion of this subsection re-emphasizes the fact that statements must be made voluntarily, and not by compulsion or force.

35. Section 17(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 roles as a legal practitioner. Comment: Persons in whose presence the statements may be: • Legal Practitioner of his choice • Officer of the Legal Aid Council of Nigeria • Official of a Civil Society Organization • Justice of the Peace, or • Any other person of his choice The proviso to the subsection should also be noted.

36. Illiterate Persons Under the ACJ Act, 2015 Section 17(3): where a suspect does not understand or speak or write in English language, an interpreter, shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement. Section 17(4): The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement. Comment: It is clear how the illiterate suspect should be treated. An interpreter shall record his statement and read it over to him to his understanding, after which the illiterate endorses the statement as having been made by him. Endorsement can be by signature or thumb print. Its also specifically provided that the interpreter shall state his full particulars on the statement.

37. Section17(5): The suspect referred to in subsection (1) of this section shall also endorse the statement with his full particulars. Comment: it’s now a matter of statutory stipulation that full particulars of the suspect shall be stated on the statement. Section15(4): Where a suspect who is arrested with or without a warrant volunteers to make a 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 a retrievable video compact disc or such other audio visual means. Comment: This re-emphasizes the need for proper interview of suspects. It’s during the interview session that a suspect can intimate the investigator that he wants to make a confessional statement. If the suspect so intimates, the making of that statement is to be in writing, and electronically recorded.

38. Thank You For Your Time