ADR and Criminal Justice?
A PRESENTATION BY HON. JUSTICE. E. N.
AGBAKOBA
Introduction
Structure of Criminal Justice Administration in
Nigeria is squarely placed on the following;-
Legislation
Police & other law enforcement and investigatory
agencies
Prosecution
Prisons
Courts
Administration & Funding
Structure for ADR
A Dispute
Willing Parties
An enabling environment (including the law/
institutions)
A mutually accepted Neutral
If a dispute in the Criminal Justice system is the
commission of an offence, then its resolution is the
finalization of the investigation of the commission
of the offence by way of imposition of sentence or
finding of guilt (either by way of plea of guilty or trial
on the evidence) or a dismissal of the charge by the
court.
CRIMINAL PROCESS
Complaint
Investigation
Charge
Arraignment in Court
Plea - Guilty Plea-Sentence
Not Guilty Plea
Trial
Judgment
Sentence
RESOLUTION OPTIONS AFTER A CHARGE
Sentence after a guilty charge
Finding of guilty after trial
Dismissal or acquittal after hearing evidence
Withdrawal of charge for want of prosecution
Nolle prosequi
Victims of crime in Nigeria have little or no roles
(Witnesses)
Brief history of common law crime
Pre 1170 (Pre Norman times) the Main focus of crime was
The Victim
The Community’s involvement was to ensure
Restitution
William the Conqueror
The Kings Peace
Asserting Royal Jurisdiction over certain OFFENCES
Coinage and crimes (Murder, violent crimes arson
robbery, false coinage e.t.c.) with this came the
Payment of fines in place of restitution (further
diminishing the role of the victim)
A review of the criminal justice system today it’s
constraints
Prolonged trial periods (3-9 years +)
Congestion of courts and prisons
Poor infrastructure –no substantive growth and
development
Poor funding
Manpower –quality (recruitment/training)and shortages
Lack of commitment and passion
Poor administration (management)
Abuse of arrest powers
Lack of clarity/uniformity in bail proceedings
Mutual disdain between criminal justice agencies
Poor case-file management –Police, DPP and the courts
No accountability –buck passing
Victim dissatisfaction
Review of some of the Qualities of ADR
SPEED. No Cause List or Docket
CHOICE AND EXPERTISE OF IMPARTIAL NEUTRALS:
INFORMALITY and FLEXIBILITY:-No complex rules of
evidence
PRIVACY:
ECONOMY -Many of the costly procedures associated
with formal court processes, such as filing appeals and
motions can be eliminated.
FINALITY:
NB parties may also agree in advance that awards will be
advisory only.
Legal constraints to extending ADR to criminal
matters
The Offences of Compounding Felony and Compounding
as contained in the relevant sections of the Criminal
Procedure Law and Code create an observable hindrance
to the extension of ADR in criminal matters although the
reality of the day is another issue.
Compounding a felony was an offence under the
common law of England and was classified as a
misdemeanour. It consisted of a prosecutor or victim of
an offence accepting anything of value under an
agreement not to prosecute, or hamper the prosecution
of, a felony. The word "compound," in this context,
means to come to a settlement or agreement
Compounding continues
Compounding a felony` was an offence under
common law in England. It consisted of a prosecutor
or victim of an offence accepting money or money's
worth in exchange for dropping a prosecution for a
felony. The offence, which was a misdemeanour, was
abolished in England in 1967
The Criminal Law Act 1967 (c.58) is an Act of the
Parliament of the United Kingdom. However, with
some minor exceptions, excluding restitution and
repair but maintaining the issue of illegality of
exchange for non prosecution.
Other Constraints
Many people feel that the introduction of ADR will
effect the adversarial nature of crime,
ADR Doesn’t work in criminal matters; as victims
wouldn't be encouraged to
face offenders, in part because they may be too
merciful. The state has
an interest in ensuring crime is appropriately dealt
with.
Hence no mercy……
Beyond the UK
Other jurisdictions have embraced the use of Adr in
variant forms in their respective criminal justice
systems with resounding results.
Rwanda
Land Use ADR- this was invaluable in resolving cases of
women and children violently disposed of land.
India
In India there is a campaign to develop Court Enforced ADR
and even to expand the ambit of S345CrPC( which is in pari
materia with our laws) to widen the number of
Compoundable offences.....
Other Jurisdictions
Australia
Delinquency and Adult Criminal Mediation Programme -In adult
criminal cases, one of the attorneys will refer the case for mediation
after both attorneys have agreed, in consultation with the victim and
the defendant, that mediation is the appropriate course of action for
the case.
USA
o Pre Trial Diversion also known as pretrial intervention,
withheld adjudication, good behavior, withdraw and file,
deferred prosecution, and withheld sentencing- is a program
for certain first-time offenders to give them a second chance to
avoid being marked by a felony conviction
Plea Bargaining
Also known as plea negotiation charge negotiation and
sentence indication- is often viewed an a form of ADR.
Submissions from every day in Nigerian courts
Curious observances.
When a prosecution informs the court that charges
have been withdrawn and the Magistrate proceeds to
enquire from the complainant if he has forgiven the
accused person presupposing that some sort of ADR
must have taken place.
Community Policing and Training of Policemen in
ADR seem to lend support to introducing ADR in
criminal cases?
LAC PDSS Experience data from this intervention of
the council show that in the last three years 71% of
police cases where “resolved” in the Police station.
See charts and other tables annexed
SUBMISSION
There is nothing sacrosanct about criminal cases,
ADR would enable victims achieve closure and save
the state the cost of lengthy trials.
Especially as the practice of pursuing a civil action
against a previously accused person is not common
in these climes. E.g. O.J. Simpson and Oscar Pistoris.
