Pre-Trial Diversion from Criminal Proceedings: The Need for Legal Frameworks in Nigeria

The criminal process or criminal proceedings, without a doubt, comprises the arrest, prosecution, conviction, and sentencing of offenders, with varied punishments meted out to them. Thus, the goal of criminal law is to punish offenders, which is why those found guilty are sentenced to prison or death, depending on the circumstances.

Furthermore, in order to avoid the rigours of a full criminal trial, methods such as Diversion[1] plea Bargain[2]  or plea of guilt[3]  are recognized to establish an offender’s guilt. As a result, the prosecution can explore any of these methods in order to establish an offender’s guilt.

Hence,  this article explores the concept of Pre-trial Diversion in other Jurisdiction, then proceed to locate its merits and finally advise on the need for it to be incorporated into our criminal justice system.

THE CONCEPT OF PRE-TRIAL DIVERSION

Pre-trial Diversion or Diversion[4] denotes an alternative to criminal adjudication where prosecution is suspended for the offenders/defendants and are placed in a community-based rehabilitation program. Thus, the rehabilitation program may include counselling, training, and job placement etc. In other words, Pre-trial Diversion is a prosecution intervention in criminal adjudication where the defendant is not charged to court but placed on probation to avoid a formal criminal trial.

Thus, Hon. Justice A.S Oyinloye J. explains the process thus;

“Diversion in criminal justice delivery system, is a form of pretrial sentencing in which an offender joins, for instance, a rehabilitation programme to help remedy the behaviour leading to the original arrest and thus allowing the offender to avoid conviction”[5]

Interestingly, under Pre-trial Diversion, the charge is subsequently suspended upon the offender satisfying certain conditions and the criminal records of the defendant will be expunged.

Furthermore, Diversion has been described as a “new model of social control”. This is so because the aim is to punish an offender as if he has been convicted. It needs to be stated that Diversion is only limited to misdemeanour offences or non-violent offenses and it is also available to first-time offenders.

Consequently, it should be noted that Nigeria doesn’t have any legal framework for this procedure, hence, the discussion on the procedure is largely based on what is obtained in other Jurisdictions of the world. Notably, Australia, the United States, the United Kingdom, and India have all incorporated this procedure in their various criminal Justice law.[6]

PRE-TRIAL DIVERSION UNDER TENNESSEE LAW

In Tennessee, a state in the United States, the Tennessee Code of 2019 provides for Diversion from criminal proceedings, Section 40-35-313 (A) regulates the procedure thus;

“The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanour with which the person is charged or not more than the period of the maximum sentence of the felony with which the person is charged”

It is clear from the provision that a court in Tennessee may defer proceedings for a qualified defendant and place the defendant on probation. It can be submitted that probation used in the section may include placing such a defendant on rehabilitation for a “period of time not less than the period of maximum sentence” of the offence charged.

PRE-TRIAL DIVERSION UNDER AUSTRALIAN LAW

Also, the Australian Criminal procedure Act through section 59 of the thereof, provided for the eligibility  for Diversion thus:

1. The defendant must be charged with a summary offence or an indictable offence that may be heard and determined summarily.
2. Acknowledge responsibility for the offence(s)
3. Approval of the prosecution is necessary  This can be the police officer responsible for the case or the police prosecutors working at Court and they must sign a Diversion Notice recommending you.[7]

This reveals that Diversion under Australian Laws is only available to indictable offences which can be tried summarily, for example driving offences, minor theft, drug offences, shoplifting, etc. In effect, in that jurisdiction, Diversion is not available to offenders who have committed a capital offence even if he is a first-time offender.

The procedure in Australia is quite unique, in the sense that, the offender needs to file a Diversion Notice” which will be signed by the prosecution. Once this Diversion Notice is filed In the Court, the case will be set down for a Diversion hearing before a Magistrate to decide whether the defendant is eligible for Diversion. However, before the hearing, a form will be given to the defendant to show cause why he has committed the offence.[8]

PRE-TRIAL DIVERSION UNDER INDIAN LAW

Diversion under Indian law is similar to that of the U.S in terms of eligibility, however, there is a bit of improvement in the sense that, if such an offender commits another offence within two (2) years of the Diversion, such an offender will be charged with the new offence and the previous charged to which he took benefit of Diversion will be reinstated.[9]

THE MERIT OF THE PROCEDURE

The merit of the procedure includes, but not limited to the following;

1. It helps to reduce the dockets of the courts. This procedure will reduce the criminal charge being filed in court in respect of simple or misdemeanour offences. This is so because, the aim is to avoid the formal charge filed in court, thereby reducing the court’s dockets.
2. It enables the defendant to understand his past behaviour and the need to prevent the re-occurrence of such a bad act[10]This is feasible because such a defendant will understand his past behaviour when sent to rehabilitation centres.
3. It prevents a First time offender from having criminal records. This is feasible because the record of the defendant will be expunged upon completion of the Diversion program.
4. It allows the authority to study and address the issues that frequently caused the child/youth to be engaged in crime[11]
5. It saves time and cost expended by the state in prosecuting simple or misdemeanour offences.
6. Diversion is intended to protect remorseful offenders who freely admit the commission of a crime from the rigours of the criminal court system. It is founded on restorative justice ideas rather than retributive justice principles.
7. It will protect minor /first time offenders from mingling with convicted hardened criminals because the process of Diversion will not involve conviction and custodial sentence;
8. It brings justice to the victims in most cases.

THE NEED FOR ADOPTION IN NIGERIA

The characteristics of the procedure as practised in other jurisdictions undoubtedly influenced the writing of this article. In essence, this writer believes that implementing the procedure will benefit not only the Administration of the criminal justice system but also offenders accused of committing simple or misdemeanour offences from the rigours of the full trial.

Furthermore, the critics of the procedure are premised on the ground that it is against the constitutional right to trial, However, a writer opined that “The demerits of it and the fear that may be entertained about the concept as likely to induce our teens to be more involved in crimes should not prevent giving the concept a try [in Nigeria]”[12]

Therefore, this writer suggests that the National Assembly and the state Houses of Assembly should incorporate similar provisions in our Administration of criminal justice Act/Law.

On another wicket, it may be argued that there are similar provisions such as Probation in SS. 453- 459 of the Administration of Criminal Justice Act 2015. However, it is this writer’s stand that probation as encapsulated in that aforementioned section is quite different from Diversion. Diversion is before a charge is filed in court while probation is granted after a judge “thinks that the charge is proved”[13] but due to age, character, and mental Health, the punishment cannot be inflicted.   Therefore, presently, as argued elsewhere in this article, there is no provision for Diversion in our criminal laws.

CONCLUSIONS

The idea of Pretrial Diversion is quite fascinating. It’s an attempt at noncriminal adjudication. It also enables the prosecution to structure and make visible the informal prosecutorial practices of pre Trial settlement as an alternative to a full criminal trial.

The discussion on Diversion in Nigeria today is certainly, a discussion in the realm of speculations since no law recognized the procedure in Nigeria. Thus, it is submitted that incorporating such similar provisions in our Administration of Criminal Justice Law will be a step in the right direction.

Folorunsho Faozy Aduagba writes from the Faculty of Law,  Usmanu Danfodiyo University, Sokoto. He can be reached via 08106500985 or folorunshofaozy@gmail.com

Footnotes 

[1] A procedure which will be discussed herein under

[2] A plea bargain means an agreement between the prosecution and the Defendant, whereby the Defendant is allowed to elect to plead guilty for a lesser offence in exchange for his guilt.

[3] The position of the law is that where a defendant has please guilty to a charge the court can convict summarily. See Baalo V. FRN (2016) LPELR- 40500 (SC)

[4] As it is called in some jurisdiction

[5] A. S. Oyinloye J. “Diversion  And  Plea Bargain Practice And  Procedure” paper delivered at the National  Judicial  Institute Annual  Refresher  Course for Judges and Kadis on 23 March 2022. (accessed at National judicial institute website)

[6] A. S Oyinloye op. Cit note 5

[7] https://www.mondaq.com/australia/crime/1090416/diversion-how-does-it-work (accessed June 5, 2022)

[8] Ibid

[9] A. S. Oyinloye J. op. Cit Note 5

[10] Ibid

[11] Ibid

[12] Ibid

[13] See section 454 of the ACJA 2015