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.