In the early 19th Century, there were cases where the police “obtained” statements from suspects by force while the judicial authority was strong for admitting an accused’s statements in evidence even though they were obtained by constables, who had him in custody, by means of considerable insistence and even force during interrogation. With this, judges of the Kings Bench Division (UK) at the request of the Home Secretary formulated the “Judge Rules” in 1912, to guide the police and other officials involved in investigating crimes. The rules became effective in 1914 in Nigeria. In 1964, England revised the rules which now differ significantly from the 1912 rules that still operate in Nigeria.
The rules are merely administrative and do not have the force of law, but the courts acts on them. In Evbuowman v Police (1961), the court quashed conviction on the ground that the police officer acted contrary to the judges’ rules. It is permissible for a police officer to question a person in custody with regard to the offence or offences for which he or she is held. But it is important that the judge rules are followed. In this context “custody” means: “in custody of the police”, R v Buchan (1964), R v Strappen (1952).
In Nigeria there are nine main rules.
Rule 1: What Questions may be asked“When a Police Officer seeks to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not from whom he thinks useful information can be obtained”.
The suspect’s answers to any questions put and any statement that he may volunteer should be in writing. This should be so that:
- The suspect may be able to clear himself of suspicion.
- If it is later decided to charge him, his statement will be available to check this story in the witness box.
- It may disclose matters, which open new causes of investigation.
Rule 2: When to caution
“Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any question or any further questions, as the case may be.”
Rule 3: Persons in Custody
“Persons in custody should not be questioned without the usual caution being first administered.”
Rule 4: Voluntary Statement
“If the prisoner wishes to volunteer any statement, the usual caution should be administered.”
Rule 5
- Formal Caution: ‘The caution to be administered to a prisoner, when he is formally charged, should be in the following words: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence”.
Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person from making a statement, which might assist to clear him of the charge.
- Short Caution: The words in Rule 5 are only applicable when the formal charge is made and can have no application when a violent or resisting prisoner is being taken to a police station. In that case before the formal charge is made, the short caution should apply, that is to say:
“You are not obliged to say anything, but anything you say may be given in evidence.” In both instances, every suggestion that the statement is to be given in evidence against its maker must be avoided.
Rule 6: Statements Prior to Caution
“A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.”
Rule 7: Questions which may be asked of a prisoner
A prisoner or a suspect making a voluntary statement must not be cross-examined. No questions should be put to him about it except to remove ambiguity in what he has actually said. If, however he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week which do not agree, or has not made it clear to what he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.”
Rule 8: Persons Jointly Charged
“When two or more person are charged with the same offence and statements are taken separately from them, the police should not read the statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.”
The West African Court of Appeal in R v. Ajose and others (2 W.A.C.A. 118) added the following provision to Rule 8:
“Provided that when the person charged (other than the person who made the statement) is an illiterate, the statement may be read over and interpreted to him apart by some person other than a policeman. Anything said to such reader by the person charged when the statement is read shall not be admissible in evidence against him, but if, after the statement has been so read he shall be desirous of making a statement to the Police in reply, such statement shall be taken only after the usual caution has been administered.
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Rule 9: Statements
“Any statement made in accordance with these rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.”
The judges rules do not apply to interrogation of members of the Armed and the Police Forces by their superior. In R. v Bass (1955), a Criminal Court of Appeal expressed the opinion that if at the time the police questioned the accused, he was in custody and no caution had been administered to him, the jury should have been directed to consider whether, despite a breach of the judge’s rules, the accused had made his statements voluntarily. The conviction was quashed because the jury had not been so directed. Where there is no jury as in the case of Nigeria, the judge must caution himself as to whether, despite the non-observance of the judges rules, the statement can be said to be voluntary. It should be on record that he has so cautioned himself.
Application of the Judges Rule
In R v Payne (1963), following a car crash, P. was taken to the police station. He was asked and he agreed to be medically examined by the police doctor. Police informed P that it would be no part of the doctor’s duty to examine him in order to give an opinion as to his unfitness to drive. Quashing his conviction for drunken driving, the appellate court held that if P had realised that the doctor would give evidence on that matter, P might have refused to be medically examined, and that the judge had exercised his discretion wrongly. The mere fact that a confession is made in answer to a question put by a police officer is not sufficient to render the confession inadmissible. However, where the accused refused to answer a question on the ground that his or her answer tend to incriminate him or her and he or she is improperly compelled to answer it, such a confession would not be voluntary. The judge’s rules do not necessarily render a voluntary confession involuntary because it was obtained in violation of the judge’s Rules, but the trial judge has a discretion to exclude it.
The accused in R.v. Ogwuogo (1936) also made a statement to the police. He was cautioned in a native dialect. He was convicted for murder. The accused did not understand the caution. Held the court must be satisfied that the statement is free and voluntary. If it is not satisfied, the onus is on the prosecution. In dealing with illiterate suspects therefore, one must ensure that they understand what the caution is all about. There must be positive evidence that it was administered and understood.
An accused cannot be forced to present himself or herself for a photograph. He requires to be cautioned - Ugama v. R (1959) 4 FSC, 218.
The judges rules offer safeguards to ensure that confessions are freely given and voluntary, and that the accused is properly cautioned. It ensures the absence of any suggestion that a confession has been induced by threats or promises from someone in authority. In practice, the officer accepting a confession is obliged to take the accused and the statement before a superior police officer (i.e. an Assistant Superintendent or above) as early as possible. The Superior Police Officer is required to satisfy him or herself that the statement is free and voluntary. If he is satisfied, he must ask the accused if he made the statement and whether it is true. If the accused admits, the superior police officer endorses and signs the confession to that effect. Now, the mere fact that superior police officer has not endorsed a confession does not render it inadmissible. However, such endorsement has the value of assuring the court that it has been properly taken.
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Judges rules are an extension of the rules on confession. They were built to advance voluntary confessions. They are not statutory provisions, judicial decisions, Practice directives or Court Rules. They are administrative rules to guide the police and other agencies that investigate criminal matters. They do not have the force of law but their observance assures the admissibility of a confession which otherwise would have been impeached. The judges rules in England have been revised since 1964, but those operating in Nigeria were those formulated in 1912-1914 and it is incumbent on police officers and every other person charged with the duty of investigating offences or charging offenders to comply with them as far as practicable.
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