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CONFESSIONAL STATEMENT UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015 AND THE OBITER OF THE SUPREME COURT IN CHARLES V. THE STATE OF LAGOS (2023) 13 NWLR (PT. 1901) 213

Summarily, Sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 provide that a confessional statement “may” be recorded electronically (video or audio) and also in the presence of the accused person’s legal practitioner where he/she has obtained the services of one.

The pivotal question arises: should the above-mentioned provisions of the law be regarded as “permissive” or “mandatory”? If interpreted as permissive, that would mean that non-compliance with the said provisions would not affect the validity of a confessional statement. If mandatory, that would mean that non-compliance with the said provisions would affect the validity of a confessional statement.

The Court of Appeal has attempted to give some clarity on the above-stated question in some of its decisions. Unfortunately, the Court has rendered conflicting decisions on this issue. In some decisions, the Court of Appeal took the position that the provisions of Sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 are “permissive” and not “mandatory”. Consequently, in those decisions, the Court of Appeal held that non-compliance with the said provisions did not affect the validity of the confessional statement.

In some other decisions, the Court of Appeal took the position that the provisions of Sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 are “mandatory” and not merely “permissive”. Consequently, in those decisions, the Court of Appeal held that non-compliance with the said provisions affects the validity of the confessional statement and rendered same inadmissible, null and void. For example, see the decision in Nnaijofor v. FRN (2019) 2 NWLR (Pt. 1655) 157.

In the case of Charles v. The State of Lagos (2023) 13 NWLR (Pt. 1901) 213, the Apex Court was called upon to determine whether non-compliance with the provision of Section 9(3) of the Administration of Criminal Justice Law of Lagos State is fatal to the accused person’s confessional statement.

In determining the appeal, her Lordship, Ogunwumiju, JSC by way of obiter shared her comments on whether the provisions of Sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 are “mandatory” or “permissive” and whether non-compliance with the said provisions would affect the validity of a confessional statement.

Her Lordship concurred with the position of the Court of Appeal in Nnaijofor v. FRN (supra) and opined that the provisions of Sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 are “mandatory” and not merely “permissive” and that non-compliance with the said provisions would render a confessional statement impotent and worthless. Please see pg. 243 – 244, paras. B – D of the law report.

Though expressed in obiter, her Lordship’s stance provides valuable insight into her judicial perspective on this issue and perhaps the potential future direction/position the Apex Court might take in subsequent cases.

Tunde Ahmed Adejumo

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