1. Introduction

Law and order are important components of the security of life and property of citizens and the key institutions in the maintenance of law and order are the judiciary and the police. Every year millions of people are invited by the police in connection with offences. Almost every person who honours a police invitation or comes into contact with the police agrees that something drastic must be done to reform that agency.

 

  1. The Need for New Regulations

The regulations are designed to govern the interview of persons and suspects and the taking of written statements, including confessions. The Criminal Procedure (Statement to Police Officers) Rules 1963 and the English Judges Rules of 1964 are the current rules which regulate the interview of persons and suspects. However, they are now outdated and must be reviewed to reflect modern policing, global best practices and the provisions of the Evidence Act. It is noteworthy that the Judges Rules 1964, which we borrowed from England, have not been in use in that country for over 50 years and have been replaced by the Codes of Practice for police officers.

 

  1. Outdated Caution to Suspects

What is now required are new directions to police officers to regulate the questioning of suspects or other persons including taking written statements. A draft of the new regulations is attached to this piece. They include a sample of the standard cautionary words to be administered by police officers to suspects before taking statements. The words of caution currently used by the police do not include a warning that the suspect is entitled to consult with a lawyer before making a statement. See, section 35(2) Constitution FRN. Also, the word voluntary widely used by the police in the standard caution is no longer the operative test for the admissibility of confessions under section 29 of the Evidence Act.

 

  1. Key Features of the New Regulations

The proposed new regulations are drawn from the old Judges Rules and the Code C of the Codes of Practice made under the Police and Criminal Evidence Act of England. Some of the salient provisions of the new regulations are as follows; (i) It makes a clear distinction between suspects and other persons and a person must only be treated as a suspect if there is evidence to connect him with the commission of an offence; (ii) a person who is not a suspect cannot be arrested or admitted to bail; (iii) regulates the procedure for taking statements and prohibits the use of torture or threats; (iv) statements may be recorded by video or audio apparatus; (v) the police may take samples of body fluids or tissue of suspects; (vi) police officers face demotion or dismissal for non-compliance with the rules. The inclusion of the punishment is critical to ensure compliance with the regulations and necessary to bring erring officers to account.

 

PROPOSED NEW DIRECTIVES TO POLICE OFFICERS FOR INVITATION, QUESTIONING AND BAIL OF SUSPECTS & OTHER PERSONS. 

 

Invitation for Questioning

  1. When a police officer is trying to discover whether and by whom an offence has been committed he is entitled to invite and question any person or senior representative in the case of a corporate body or Government agency, whether suspected or not, from whom he thinks that useful information may be obtained.

 

  1. An invitation by the police must be in writing signed by an officer not below the rank of Inspector and delivered to the known address of the person, company or agency. Oral invitations are hereby prohibited. However, where any person is found committing an offence he can be arrested and questioned without invitation.

 

  1. After invitation and when a person is unable to attend with excuse he may request for another date to attend and the police shall arrange an alternative date for questioning. When a person fails to attend without excuse a second invitation shall be issued and failure to attend after two invitations is sufficient ground for an arrest.

 

  1. Where it is required to question a corporate body in connection with an offence the invitation must be addressed to the most senior officer of the company or agency who may either attend in person or nominate a senior officer to attend.

 

  1. Where a person is invited to be questioned in connection with any offence he must be shown and permitted to read the statement or petition of the complainant initiating the investigation or be informed of the allegations or nature of the offence before he is requested to make a statement.

 

  1. A police officer shall not invite any person for questioning before and unless steps have been taken to investigate or establish the truth or otherwise of the petition or statement of the complainant or the allegations of commission of the offence.

 

  1. Any person voluntarily attending a police station must be allowed to leave at will after questioning unless he is treated as a suspect and arrested and a person must not be arrested unless there is evidence implicating or connecting him with the offence and has made a statement under caution.

 

Fitness for questioning of vulnerable persons

  1. Where it is discovered that a person has any physical disability or is otherwise a special needs person then provision must be made to address the disability of the person before questioning.

 

  1. Where it is discovered that the person has mental disability or any mental health problems the police officer shall immediately request for the services of a healthcare professional before questioning.

 

  1. Where it is required to question any child the police must ensure that an adult relative of the child is present at all times during questioning.

 

Caution of Suspects

  1. When during questioning it appears that there may be evidence implicating or connecting a person with an offence that person may be treated as a suspect and immediately cautioned. A person shall not be treated as a suspect and shall not be cautioned unless there is evidence which would afford reasonable grounds for believing that the person has committed an offence. Any person who is treated as a suspect and who is to be cautioned shall have the right to know the evidence against him.

 

  1. The caution to suspects shall be in the following terms and the police officer must explain the words of caution to the suspect:

“I have been informed that I am not forced to make this statement and I may choose to remain silent until I have consulted with a lawyer of my choice. I have also been informed that this statement may be used against me in court and that an audio or video recording of my statement may be made and used against me in court.”

 

  1. Where a police officer discovers that the statement is confessional in nature or otherwise implicates the suspect in the commission of the offence he shall arrest the suspect and inform him that he may be charged and prosecuted.

 

  1. At this point the suspect shall be informed of his right to bail and in the event that he cannot meet the bail conditions within 24/48 hours then he may be detained or taken before the nearest Magistrate Court.

 

Detention of suspects

  1. No suspect shall be detained by the police for more than 24/48 hours without a remand order from a Magistrate and any police officer who detains any suspect for more than 24/48 hours shall be liable to demotion of rank or dismissal from service.

 

  1. Any police officer who charges any suspect to court or obtains a remand order against suspect without any evidence to implicate or connect the person with an offence shall be liable to demotion of rank or dismissal from service.

 

  1. Every police station must designate detention officers (including the DPO, & DCO) who must be not lower than the rank of Inspector and it shall be the duty of the detention officer to determine whether or not a suspect will be detained or granted bail.

 

  1. A written record must be kept of all suspects in detention at any police station and such record must be reviewed by a detention officer every morning. A list of all person detained at any police station must be displayed in a conspicuous part of the station for access to the general public.

 

Bail of suspects

  1. Any person who is not a suspect and who is not arrested but only volunteers a statement without being cautioned shall not sign any bail bond or be released on bail.

 

  1. Any suspect who makes a statement under caution shall have the right to bail and a suspect must not be refused bail except where the offence carries the death penalty.

 

  1. No police officer shall demand and no suspect shall give any money or other gratification before or after granting bail to any suspect.

 

  1. Where the offence is one which cannot be brought before a Magistrate Court the police officer should within 24/48 hours obtain a remand order from a Magistrate and send the casefile to the appropriate authority for prosecution.

 

Taking written statements

  1. All written statements shall be taken in the following manner;
  • When a person elects to make a statement a record shall be made; of the time and place at which any such statement began and ended; of the police officer who obtained the statement; and of other police officers present when the statement was made.

 

  • When a suspect is cautioned the words of caution must be written down by the police officer at the beginning of the statement and the caution must be dated and signed by the suspect before the statement is taken.

 

  • A suspect must be informed that he has the right to have access to a lawyer before the statement is taken and to have the lawyer present. A suspect must also be informed that an audio or video recording of the statement will be made.

 

  • The suspect shall be asked whether he wishes to write the statement himself or if he would like someone to write for him and in such case a police officer shall to write the statement for him;

 

  • Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement who must then acknowledge the statement at the end by signature or thumbprint.

 

  • The police officer who obtains a statement from any person or suspect or who writes a statement on behalf of any person or suspect must append his name, rank, serial number and telephone number at the end of the statement;

 

  • When a police officer has finished writing the statement, it shall be read over to the person or suspect who will be asked if he intends to make any amendments or additions and the statement must contain an endorsement that it was read over by or to the person before it was acknowledged;

 

  • Where a person or suspect informs the police officer that he cannot make a statement in English language but only in vernacular then provision shall be made without delay for an interpreter;

 

  • where statements are written or made in vernacular there shall be an interpreter present who shall translate and write the statement in English. The interpreter must append his name, rank, serial number, address and telephone number at the end of the statement.

 

  • where the interpreter and recorder are not the same person they must each append their name, rank, serial number, address and telephone number at the end of the statement.

 

  • When a statement turns out to be a confession, the suspect should be taken before a senior police officer where he may confirm or retract the earlier confession. If he affirms the confession, the senior police officer must endorse thereon a statement to that effect.

 

  • a police officer must not obtain written statements from different suspects in connection with the same offence in the presence or hearing of each other during questioning.

 

  • After a suspect has been informed that he may be prosecuted for an offence, a police officer must bring to the notice of that suspect any written statement made by any other suspect who implicates him and he shall permitted to read the contents. Where he intends to make a statement in reply he shall be further cautioned before a subsequent statement is taken.

 

Audio and Video recording of statements

  1. A statement taken under caution may be made in writing or in the alternative may be recorded by video or audio apparatus.

 

  1. A statement taken under caution and recorded by video or audio apparatus must be stored for use in court proceedings.

 

  1. The IGP shall develop manuals for guidance of police officers for the recording and storage of statements by audio or video apparatus.

 

Prohibition of torture

  1. Any person or suspect writing or making a statement shall be allowed to do so without any prompting or dictation but may be asked about matters which are material to the investigation;

 

  1. A police officer must not use any torture or oppression or threats to coerce any person or suspect to obtain information or to make any statement.

 

  1. Where a statement is obtained from a suspect only after any period of detention the police officer must make a record of such place and period of detention on the face of the statement.

 

Right to counsel

  1. A suspect must be informed that he has the right to have access to a lawyer and where he cannot afford the services of a lawyer the police shall contact the nearest legal aid office or public defender to appoint a lawyer for him.

 

  1. Every suspect must be granted the right to make a telephone call to a lawyer or relative before making any statement.

 

Recovery of Goods or Substances

  1. Where a suspect is arrested in possession of stolen or prohibited goods or substances, whether at the scene of an offence or during the commission of an offence or upon execution of a search warrant, the police officer shall do the following things;
  • take custody of the goods or substances and pack and mark them appropriately;

 

  • send the goods or substances to the appropriate expert or office for forensic examination;

 

  • Upon return the goods or substances together with the report of examination must be marked and stored for use in court proceedings.

 

  • Make a record the time and dates which the goods or substance were recovered and sent for examination and returned.

 

  1. The IGP shall develop manuals for guidance of police officers for recovery of goods and substances and dispatch for examination and storage and marking.

 

Identification of suspects & samples

  1. When during questioning it appears that there may be evidence implicating or connecting a person with the commission of an offence that person may be treated as a suspect and immediately cautioned and police officer shall do the following things:
  • the police officer shall take and record for the purposes of identification, the measurements, photographs and fingerprint impressions and any other means of identification of the suspect;

 

  • Every photograph or other record of identification of the suspect shall be stored in a data base but if the suspect is not charged or prosecuted the record shall be deleted.

 

  • the police officer may for the purposes of further investigation and identification demand and take samples of body fluids or tissue of the suspect for examination;

 

  • every sample of body fluid or tissue taken from a suspect must be marked and sent for examination and the result must be marked and stored for use in court proceedings;

 

  1. The IGP shall develop manuals for guidance of police officers for taking and storing records of identification of suspects and for taking samples of body fluids or tissue of suspects for examination.

 

Punishment for violation of regulations

  1. All police stations or formations must boldly display the name and telephone number of the current most senior officer and the second in command in a conspicuous location which is accessible to all persons.

 

  1. Every police officer must respect the fundamental rights of citizens and all police officers shall comply with these regulations.

 

  1. Every case must be dealt with expeditiously and every suspect must be released where there is no further need for detention.

 

  1. Any police officer who fails to comply with these rules without reasonable excuse shall be liable to demotion of rank or dismissal from service.

 

  1. Where there are more than three (3) confirmed incidents of violation of these rules the most senior officer of the police station or formation shall be demoted or dismissed.

 

Jide Bodede

08035130694

jide@lawfieldslawyers.com