1

FORGING NEW TRENDS IN SENTENCING – OVERVIEW OF

UN STANDARD MINIMUM RULES FOR NON-CUSTODIAL

MEASURES AND THE LAGOS STATE ADMINISTRATION OF

CRIMINAL JUSTICE (ACJ) LAW 2007

Abstract

This article is focused on drawing attention to alternatives to imprisonment. It explains some of the

major features of the United Nations Standard Minimum Rules for Non-custodial Measures, (Tokyo

Rules) which is an instrument that strongly promotes the use of non-custodial measures. It discusses

the non-custodial sentencing measures in the Lagos State Administration of Criminal Justice Law

(ACJL) 2007, like fine, restoration, restitution, compensation, forfeiture and confiscation, probation

and community service. Some aspects of non-custodial measures in some other domestic and

international laws are also incorporated in the discuss.

Introduction

Universally, imprisonment is still the cornerstone of penal systems. Despite its wide use, its

drawbacks both to the offender and to society have become increasingly recognized and a search for

alternative/non-custodial sanctions has been conducted for more than one century1.

For a judicial officer to effectively administer proper sentence, in a criminal trial, he or she requires

a good understanding of the rules of law, problems of crime causation and appreciate the role of the

criminal law as an ultimate instrument of social control and balance the concepts of crime causation

with the relevant theories of punishment2.

Prison congestion with its attendant negative aspects is a problem in most nations of the world

including Nigeria. However, developed countries realize the great danger this situation portends and

they do all within their means to curtail the situation. Our judiciary has over the years, relied very

heavily on imprisonment and fine as sentencing measures almost as if no other disposition measure

is available for their application. While some jurists blame this on the absence of any clear

By Dr. (Mrs) Ani Comfort Chinyere, LLB. (Hons.); BL; LL.M. (UNN), Ph. D. (Lagos), Head, Alternative

Dispute Resolution Department, Nigerian Institute of Advanced Legal Studies, Lagos. E. Mail:

chinnyani@yahoo.com.

1 Available at: http://www.unicri.it/probation/prb_aboutus.htm. Accessed on 23/11/2010.

2 Owoade M. A., “Dispensation of Criminal Justice in Nigeria: Problems and Prospects”, in Kanam S. M.,

and Madaki A. M., Contemporary Issues in Nigerian Law. Essays in Honour of Hon. Justice Umaru Faruk

Abdulahi, (Zaria: Public Law Dept. Ahmadu Bello University, 2006) p. 234.

2

sentencing policy in the criminal legislation3, others believe that there is a sentencing policy

embodied in the law, which although may appear to be deficient in detail, needs to be made more

comprehensive and definite in terms of imprisonment to be imposed in any given circumstance.4

Ayodele Atsenuwa opined that the absence of a clear policy on sentencing is evident in the failure

of the state to provide infrastructural support for most of the other sentencing options available in

the statute books.5 The result of the absence of a clear sentencing policy in Nigeria is the over

reliance on imprisonment, leading to prison congestion, which is a major problem bedeviling our

criminal justice system.

Non-custodial alternatives to imprisonment have been recognized as an effective means of treating

offenders within the community to the best advantage of both the offenders and society6. If

appropriately applied they facilitate the social reintegration of offenders within the community

rather than subjecting them to the unnecessary de-socializing and harmful effects of prison7. It

addresses all of the aims of traditional incarceration including retribution, reparations, deterrence,

and incapacitation in addition to rehabilitation.8 Some of the measures imposed may include a

condition to undergo treatment for an addiction, while others may include referral to an educational

or personal development centre, or oblige offenders to undertake unpaid work beneficial to the

community, on the understanding that, as well as being penalized, they are acknowledging and

repaying the damage they have caused to the community by committing an offence.9 They may also

be required to pay compensation or make restitution. Research has shown that most victims of

crime in Nigeria prefer restitution and compensation of their victimizers to imprisonment or fine10

.

3 Douglas D. O., “Sentencing Policy” in Report of the All Nigeria Judges Conference, 1988, cited in Atsenuwa

A. V., “Criminal Justice Reforms in Areas of Bail, Remand and Sentencing” in Otteh J. C. (Ed.), Reforming for

Justice”, (Lagos: Access to Justice, 2007), p.83.

4 Okunribido S. O., “Administration of Criminal Justice Sentencing Policy”, cited in A. V. Atsenuwa, ibid.,

p.83.

5 Atsenuwa A. V., supra, note 3, p. 84.

6 See the Preamble to the UN Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules)

7 Custodial and Non-Custodial Measures Social Reintegration Criminal Justice Assessment Tool kit (New York:

United Nations, 2006), p. 2 8 Klein A. R., Alternative Sentencing. A Practitioner’s Guide, (Anderson Publishing Co., 1988), p. 1.

9 Ibid.

10 Odekunle F., “Restitution, Compensation and Victims Remedies: Background and Justifications” in Adetiba

S., (Ed.) Compensation and Remedies for Crime Victims in Nigeria, (Lagos: Federal Ministry of Justice,

1990), p. 157.

3

Custodial Sentence (Imprisonment)

A custodial sentence is a judicial sentence, imposing a punishment consisting of mandatory custody

of the convict, either in prison or in some other closed therapeutic and/or (re)educational institution,

such as a reformatory, maximum security psychiatry or drug detoxification facility.11

It is an established fact that the major forms of sentence readily used by Nigerian magistrates and

judges are imprisonment or fine with the alternative of imprisonment.12

The goals of imprisonment

which are treatment and rehabilitation, including the provision of vocational and educational

training for incarcerated convicts are articulated largely as theories and unimplemented13

. While

imprisonment is necessary in many cases involving violent offenders, it does not constitute an

absolute solution with regard either to crime prevention or to the social reintegration of offenders14

.

The problems associated with our prisons before the reforms that started in 1999 are yet to be

eradicated. Such problems have been well documented by penologists as including: deplorable

situation in terms of treatment of prisoners, the structure and operations of the prisons, the state of

prison staff, the profile of the prison service, inadequate funding, overcrowding, high rates of

awaiting trial population, lack of speedy trial, high prison mortality rates, poor feeding/clothing and

sanitary conditions, poor complaints and disciplinary procedures, torture and gross human rights

abuse of prison inmates, lack of adequate rehabilitation/reformation and resettlement activities for

inmates to reduce re-offending behavior.15

There is an almost unanimous agreement amongst penologists, criminologists, prison welfare

officers and human rights workers that the prison has failed in its assigned tasks of identifying

sources of anti social behavior, reforming offenders into useful citizens in a free society, keeping

prison inmates in safe custody and helping to reduce the incidence of crime in the society.16

11

Available at: http://en.wikipedia.org/wiki/Custodial_sentence. Accessed on 23/11/2010.

12 Ahire P., “Penological Policies in Nigerian Criminal justice System”, in S Adetiba (Ed.), supra, note 10, p.

337.

13 Alemika E and Alemika E, “Penal Crisis and Prison Management in Nigeria” in Contemporary Law, Vol.

No. 2. p. 62.

14 Human Rights in the Administration of Justice Chapter 9: “The Use of Non-Custodial Measures in the

Administration of Justice” Available at: http://www1.umn. edu/humanrts/monitoring/adminchap9.html.

Accessed on 2/12/2010. 15

Agomoh U., “Prison and Penal Reforms in Nigeria” in J. Otteh (Ed.), Reforming for Justice, supra, note 3, p.

109. See also Odinkalu C. and Ehonwa O. L, Behind the Wall, (Lagos: Civil Liberties Organization) Ehonwa

O. L., Prisoners in the Shadows (Lagos: Civil Liberties Organization, 1993), Agomoh U., Decongestion of

Awaiting Trial Prison Population in Nigeria (Lagos: PRAWA, 1988).

16 Agomoh U., ibid, p. 110.

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Alternative sentencing options are assumed to be more restorative in nature, perhaps only because

they are less retributive than imprisonment17

. The use of non-custodial sanctions and measures has

been acknowledged as one of the most effective methods of encouraging social reintegration.18

In

Nigeria, the most frequently used non-custodial sentence is fine.

Overview of the UN Standard Minimum Rules for Non-Custodial Measures

(The Tokyo Rules)19

Brief Background

The Economic and Social Council of the United Nations in May 1986, requested the Secretary-

General to prepare a report on alternatives to imprisonment for the Eighth United Nations Congress

on the Prevention of Crime and the Treatment of Offenders with a view to the formulation of basic

principles in that area, with the assistance of the United Nations.20

The basic principles formulated

were adopted by the United Nations General Assembly on 14 December 1990, titled: the UN

Standard Minimum Rules for Non-Custodial Measures.

The Rules built upon the existing international human rights instrument pertaining to human rights

of persons in conflict with the law, like the Universal Declaration of Human Rights21

, the

International Covenant on Civil and Political Rights22

, and most importantly, the Standard

Minimum Rules for the Treatment of Prisoners.23

As a build up to the drafting of the Rules, the UN

17

Availableat:http://74.6.238.254/search/srpcache?ei=UTF-

8&p=non+custodial+sentencing+options&xa=Nk9uAakW.xjA.qE0. Accessed on 23/11/2010

18 Custodial and Non-Custodial Measures Social Reintegration Criminal Justice Assessment Tool kit, supra,

note 7.

19 Adopted by General Assembly resolution 45/110 of 14 December 1990.

20 Section XI of Economic and Social Council Resolution 1986/10 of 21 May 1986, on alternatives to

imprisonment. An effort by the following was also acknowledged in the Preamble. The Committee on Crime

Prevention and Control, the Interregional Preparatory Meeting for the Eighth United Nations Congress on the

Prevention of Crime and the Treatment of Offenders on topic II, "Criminal justice policies in relation to

problems of imprisonment, other penal sanctions and alternative measures", the United Nations Asia and Far

East Institute for the Prevention of Crime and the Treatment of Offenders and the various intergovernmental and

non-governmental organizations involved, in particular, the International Penal and Penitentiary Foundation. 21

General Assembly Resolution 217 (A) III of 10 December 1948.

22General Assembly Resolution2200A (XXI) of 16 December 1966.

23 (Economic and Social Council Resolution 663C (xxiv) of 31 July1957 and 2076 (lxxii) of 13 May 1977).

United Nations Body of Principles for the Protection of All persons Under Any form of Detention or

Imprisonment, General Assembly Resolution 43/173 of 9 December1988.

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had passed several Resolutions on reduction of prison population, alternatives to imprisonment and

social integration.24

In a nutshell, the Tokyo Rules is a set of basic principles that promote the use of non-custodial

measures, as well as minimum safeguards for persons subject to alternatives to imprisonment. The

Rules are intended to promote greater community involvement in the management of criminal

justice, and to promote a sense of responsibility towards society amongst offenders.25

The rules stress the importance of having social inquiry reports (such as a probation officer's pre-

sentence report) to inform sentencing. It also provides a list of non-custodial dispositions that can be

used. The instrument also provides guidance in implementing non-custodial measures, particularly

supervision, duration and conditions.

The Rules are divided into eight (8) distinct parts, viz: I. General principles, II. Pre-trial stage,

III. Trial and sentencing stage, IV. Post-sentencing stage V. Implementation of non-custodial

measures, VI. Staff, VII. Volunteers and other community resources, VIII. Research, planning,

policy formulation and evaluation. These parts will now be examined seriatim.

General Principles

Rules 1 to 4 of the Tokyo Rules lay down in some detail the general principles guiding recourse to

non-custodial measures as alternatives to imprisonment, and, apart from the saving clause in Rule 4,

these principles describe the fundamental aims, the scope, and the legal safeguards of non-custodial

measures.

Rule 1 is on the fundamental aims of the Rules. It declares that the Rules are a set of basic

principles to promote the use of non-custodial measures, as well as minimum safeguards for persons

subject to alternatives to imprisonment. The Rules are intended to promote greater community

involvement in the management of criminal justice, specifically in the treatment of offenders, as

24

Resolution 8 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of

Offenders on alternatives to imprisonment and Resolution 16 of the Seventh United Nations Congress on the

Prevention of Crime and the Treatment of Offenders on the reduction of the prison population, alternatives to

imprisonment, and social integration of offenders. 25

Marcus Day, Alternatives to Custodial Sentencing A Manual for the Implementation of Community

Service Orders in the O.E.C.S. Available at: http://74.6.238.254/search/srpcache?ei=UTF-

8&p=non+custodial+sentencing+options&xa=Nk9uAakW.xjA.qE0qN.TAw--%2C1290905265&fr=yfp-t-701-

Accessed on 24/11/2010

6

well as to promote among offenders a sense of responsibility towards society.26

Involvement of the

community is essential in reintegrating the offender into society and may reduce the risk of

stigmatization.27

The Rules are to be implemented taking into account the political, economic, social and cultural

conditions of each country and the aims and objectives of its criminal justice system. Member

States are to ensure a proper balance between the rights of individual offenders, the rights of

victims, and the concern of society for public safety and crime prevention. In doing so, they are to

develop non-custodial measures within their legal systems to provide other options, thus reducing

the use of imprisonment, and to rationalize criminal justice policies, taking into account the

observance of human rights, the requirements of social justice and the rehabilitation needs of the

offender. By the emphasis on the observance of human rights, the Tokyo Rules seek to avoid the

abuse of discretion in the implementation of non-custodial measures.

The Rules consider non-custodial measures as part of the movement towards depenalization and

decriminalization instead of interfering with or delaying efforts in that direction and should be

applied be used in accordance with the principle of minimum intervention.28

Scope of the Rules

The Rules are applicable to all persons subject to prosecution, trial or the execution of a sentence, at

all stages of the administration of criminal justice, without any discrimination on the grounds of

race, colour, sex, age, language, religion, political or other opinion, national or social origin,

property, birth or other status.29

The Rules acknowledge the need to provide greater flexibility consistent with the nature and gravity

of the offence and the personality, background of the offender in providing a wide range of non-

custodial measures from pre-trial to post sentencing dispositions aimed at protecting the society and

avoiding unnecessary use of imprisonment.30

26

Rule 1.1 and 1.2

27 “The Use of Non-Custodial Measures in the Administration of Justice” supra note 14, p. 91

28 Rule 2 .7. & 2. 6

29 Rules 2.1 and 2.2

30 Rules 2. 3 and 2. 4.

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The Rules greatly encourages dealing with offenders in the community avoiding as far as possible

resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of

law31

.

Legal Safeguards

The Rules prescribes that the introduction, definition and application of non-custodial measures

shall be prescribed by law32

. The selection of a non-custodial measure is based on an assessment of

established criteria in respect of both the nature and gravity of the offence and the personality,

background of the offender, the purposes of sentencing and the rights of victims.33

The Rules permits the exercise of discretion by judicial or other competent independent authority at

all stages of the proceedings. Such discretion is to be exercised in accordance to the rule of law and

with full accountability.34

The offender has the right to consent to non-custodial measures imposing an obligation on him

applied before or instead of formal proceedings or trial.35

The requirement of consent to

diversionary measures is also contained in Rule 11.3 of the United Nations Standard Minimum

Rules for the Administration of Juvenile Justice (the Beijing Rules). In that context, it is either" the

juvenile, or his or her parents or guardian "who must give consent to the recommended diversionary

measure.

The offender also has a right to apply for review of the decision imposing the measure by a judicial

or other competent independent authority.36

He or she is also entitled to make a request or

complaint to a judicial or other competent independent authority on matters affecting his or her

individual rights in the implementation of non-custodial measures37

.

The dignity of the offender is protected at all times, hence medical or psychological

experimentation or undue risk of physical or mental injury to the offender while undergoing the

31

Rule 2. 5

32 Rule 3.1

33 Rule 3.2

34 Rules 3. 8 and 3.9

35 Rule 3.4

36 Rule 3. 4 and 3. 5

37 Rule 3. 6

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non-custodial measure is prohibited38

. This provision is to reinforce the point of the saving clause in

Rule 4. I that preserves international human rights provisions, for instance, the right to freedom

from inhuman or degrading treatment or punishment39

The offender’s and his family’s right to

privacy is to be respected40

. He or she also has a right to confidentiality. His or her personal records

are to be kept strictly confidential and closed to third parties. Access to such records is limited to

persons directly concerned with the disposition of the offender's case or to other duly authorized

persons41

Pre-trial Stage

Part II of the Rules deals with pre-trial dispositions. It mandates the states where it is compatible

with the legal system, to empower the police, the prosecution service or other agencies dealing with

criminal cases to discharge the offender if they consider that it is not necessary to proceed with the

case for the protection of society, crime prevention or the promotion of respect for the law and the

rights of victims. Such decision on discharge is to be made in accordance with established criteria

developed within the legal system.42

Whether or not formally recognized, discharge is frequently

used in many legal systems as an effective means of dealing with certain categories of offence and

types of offender in accordance with the principle of minimum intervention43

It is considered a

particularly appropriate method of dealing with juveniles, since keeping them out of the formal

criminal justice process is believed to reduce the chances of them becoming more deeply involved

in crime.44

Averting Pre-trial Detention

The Rules propose the use of alternatives to pre-trial detention and that pre-trial detention is to be

used as a means of last resort in criminal proceedings, with due regard for the investigation of the

alleged offence and the protection of society and the victim. Where pre-trial detention is employed,

38

Rule 3. 8

39 Art. 7 of the International Covenant on Civil and Political Rights

40 Rule 3. 11.

41 Rule 3. 12.

42 Rule 5.

43 Rule 2. 6

44 “The Use of Non-Custodial Measures in the Administration of Justice” supra note 14, p. 99

9

it should not last longer than necessary and is to be administered humanely and with respect for the

inherent dignity of human beings.45

Trial and Sentencing Stage

Section III of the Rules deals with trial and sentencing. Rule 7.1 provides for the utilization of

Social inquiry reports where they exist. A Social Inquiry Report is an assessment of an accused’s

current and past social circumstances and the accused’s need and motivation to treatment or other

alternative forms of non-custodial care (e.g. community work order and probation) in the event he

should be convicted for the crimes for which he is accused. This assessment is requested by the

courts prior to a criminal trial and the report is used by the courts in determining appropriate

sentencing.46

Rule 7.1 specifically mentioned the form and substance of information that should be contained in

the social inquiry report. They include:

1. The report must be prepared by a competent, authorized official or agency.

2. The report should contain social information on the offender that is relevant to the

person's pattern of offending and current offences.

3. It should contain information and recommendations that are relevant to the sentencing

procedure.

4. The report should be factual, objective and unbiased, with any expression of opinion

clearly identified.

Sentencing Dispositions

Rule 8 enumerated a range of non-custodial measures which a judicial authority should have at its

disposal. In choosing any of the measures provided, the sentencing officer should take into

consideration, the rehabilitative needs of the offender, the protection of society and the interests of

the victim, who should be consulted whenever appropriate47

. Most of the measures enumerated

have been the hallmarks of African criminal Justice. Apart from the different modes of punishment

45

Rule 6.

46 Available at: http://home.swipnet.se/~w-66151/assess.html.Accessed on 29/11/2010.

47 Rule 8.1

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available in the African criminal justice system, there were also customary provisions for

compensation, restitution, restoration, replacement and various other rights for the victim.48

Alan Milner had reported that compensation and restitution had been popular and acceptable means

of disposing cases in Nigerian customary courts than in the British Courts.49

African criminal

justice system employs a tripartite approach to criminal justice administration, namely, focusing on

the interests of the victim, the community and the offender50

. Traditional Nigerian judicial systems

attempt to restore broken links and the victim of crime is one of those always considered paramount in

the judicial process especially in the case of victims of violence, rape, robbery and murder.51

Non–

custodial sentencing dispositions mentioned by the Rules are as follows:

1. Verbal sanctions, such as admonition, reprimand and warning

2. Conditional discharge

3. Status penalties;

4. Economic sanctions and monetary penalties, such as fines and day-fines;

5. Confiscation or an expropriation order;

6. Restitution to the victim or a compensation order

7. Suspended or deferred sentence;

8. Probation and judicial supervision;

9. Community service order

10. Referral to an attendance centre;

11. House arrest;

12. Any other mode of non-institutional treatment

13. Some combination of the measures listed above.

48

See Ani C. C., “Extending the Frontiers of Remedies for Crime Victims in Nigeria”, in (2009) 1 NJI Law

Journal, p. 109.

49 Milner A., “Future of Sentencing in Nigeria” International Annals of Criminology, Special Number, “Non

Institutional Treatment of Offenders “Proceedings of the XXth International Course in Criminology, 1971, vol.

10, no. 1, p. 248. Elias had also noted in relation to our traditional system, that the “payment of compensation or

blood money by the offender to the offended was customary in many cases, even in unlawful killing of a human

being”. See Adeyemi A. A., “The Place of Customary Law in Criminal Justice Administration in Nigeria”, in

Y. Osinbajo, (Ed.) Towards a Restatement of Nigerian Customary Law, (Lagos: Federal Ministry of Justice,

1989), p. 220.

50 Adeyemi A. A., “Towards Victim Remedy in Criminal Justice Administration in Nigeria” in Compensation

and Remedies for Victims of Crime, op. cit. note 3, p. 293.

51 Schafer, S. The Victim and his Criminal. A Study in Functional Responsibility, 1968, in Uweru B, “Case for

Victims of Crime Support Scheme’, in Compensation and Remedies for Victims of Crime, ibid, p. 140.

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In making its decision, the judicial authority is to take into consideration the rehabilitative needs of

the offender, the protection of society and the interests of the victim, who should be consulted

whenever appropriate52

.

Post-sentencing Stage

Part V of the Rules provides a wide range of post-sentencing dispositions available to the competent

authority. These disposition measures are provided for the purpose of avoiding institutionalization

and to assist offenders in their early reintegration into society. Post-sentencing dispositions may

include:

(a) Furlough and half-way houses

(b) Work or education release

(c) Various forms of parole

(d) Remission

Some of these measures are substitutes for imprisonment. The offender is still under the authority of

the prison administration but spends his or her days outside the prison working or undergoing

training. The advantage of such an arrangement is that he or she can earn money that can be used to

helpmeet family commitments, or saved to assist with reintegration upon release. In a half-way

house, the offender is still technically under the supervision of the prison authorities but lives in

"semi-freedom", readjusting to life in the community.

Implementation of Non-custodial Measures

Rule 10 is on supervision. Whereas some of the measures such as transfer to attendance centres,

probation, parole and community service, require supervision, others like verbal sanctions and fines

need no supervision. According to Rule 10.1, the purpose of supervision is to reduce re-offending

and to assist the offender's integration into society in a way which minimizes the likelihood of a

return to crime. This rule is simply hinged on the overall principle on which non-custodial sentences

are based, which is to help offenders to avoid a relapse into crime by strengthening their sense of

responsibility, thereby also assisting their reintegration into society.

Supervision is to be carried out by a competent authority under the specific conditions prescribed by

law with the most suitable type of supervision and treatment for each individual case aimed at

52

Rule 8.1

12

assisting the offender to work on his or her offending.53

This provision suggests that the successful

implementation of these measures greatly depends on the participation and cooperation of the

offender. Such supervision and treatment are to be periodically reviewed and adjusted as

necessary.54

Rule 10.4 states that offenders should, when needed, be provided with psychological, social and

material assistance and with opportunities to strengthen links with the community and facilitate

their reintegration into society. Offenders may have a wide range of needs and problems. Some may need

long-term psychological counselling while others may only need help in finding a place to live or a job. This

provision presents a big challenge in implementation. This is because while it may be possible to

provide psychological and social assistance, provision of material assistance like food, shelter,

clothing and means of livelihood may be an uphill task.

Duration

Rule 11 provides that a non-custodial measure must not exceed the period established by the

competent authority in accordance with the law. However, provision may be made for early

termination of the measure if the offender has responded favourably to it. This again reflects the

principle that non-custodial measures should be limited to the shortest possible time. This should

encourage offenders in their efforts to reintegrate into society, and the relevant procedures should

be clear and well understood by them.

Conditions

In determining the conditions to be observed by the offender, the competent authority is to take into

account both the needs of society and the needs and rights of the offender and the victim55

. At the

beginning of the application of a non-custodial measure, the offender is to be given an explanation,

orally and in writing, of the conditions governing the application of the measure, including the

offender's obligations and rights56

.

53

Rules 10.2 & 10.3

54 Ibid, Rule 10.3

55 Rule 12.1

56 Rule 12.3

13

The conditions to be observed are to be practical, precise and as few as possible, and aimed at

reducing the likelihood of an offender relapsing into criminal behaviour and of increasing the

offender's chances of social integration, taking into account the needs of the victim.57

Such conditions may be modified by the competent authority under the established statutory

provisions, in accordance with the progress made by the offender.58

If the offender has made

progress towards social integration, the conditions maybe made less stringent, while the opposite is

possible if the offender does not respond favourably. This flexibility enables the authorities to avoid

revoking the non-custodial measure in case of difficulties, a measure that might result in the

offender's imprisonment.59

Treatment Process

Within the framework of a given non-custodial measure, in appropriate cases, various schemes,

such as case-work, group therapy, residential programmes and the specialized treatment of various

categories of offenders, are to be developed to meet the needs of offenders more effectively. The

treatment is to be conducted by professionals who have suitable training and practical experience.60

When it is decided that treatment is necessary, efforts should be made to understand the offender's

background, personality, aptitude, intelligence, values and, especially, the circumstances leading to

the commission of the offence. This of course should be covered by the social enquiry report after

investigation by the social welfare officer.

In line with the aim of promoting greater community involvement in the management of criminal

justice, specifically in the treatment of offenders, Rule 13.2 authorizes the competent authority to

involve the community and social support systems in the application of non-custodial measures.

This is a recognition that the community, in the form of the family, neighbourhoods, schools, the

workplace and social or religious organizations, for instance, can contribute greatly to the

successful social reintegration of offenders.61

57

Rule 12.2

58 Rule 12.4

59 “The Use of Non-Custodial Measures in the Administration of Justice” supra note 14, p 392.

60 Rules 13.1 & 13.2

61 The Use of Non-Custodial Measures in the Administration of Justice” supra note 14, p 393.

14

A case record is to be established and maintained for each offender by the competent authority.

Equally, case-load assignments are also to be maintained as far as practicable at a manageable level

to ensure the effective implementation of treatment programmes.62

Discipline and Breach of Conditions

A breach of the conditions to be observed by the offender may result in a modification or

revocation of the non-custodial measure.63

The modification or revocation of the non-custodial

measure is made by the competent authority; this is done only after a careful examination of the

facts adduced by both the supervising officer and the offender.64

The failure of a non-custodial

measure should not automatically lead to the imposition of a custodial measure, rather, the

competent authority enjoined to attempt to establish a suitable alternative non-custodial measure. A

sentence of imprisonment may only be imposed in the absence of other suitable alternatives65

.

The power to arrest and detain the offender under supervision in cases where there is a breach of

the conditions is to be prescribed by law.66

Strict respect for the principle of legality is here again to

be ensured, including all basic judicial guarantees which the offender has a right to enjoy when

deprived of his or her liberty

Rule 14.6 gives the offender the right to appeal to a judicial or other competent independent

authority on the modification or revocation of the non-custodial measure,

Staff

In recruiting suitable persons as staff for the non-custodial measures, there should be no

discrimination on the grounds of race, colour, sex, age, language, religion, political or other

opinion, national or social origin, property, birth or other status. The policy regarding staff

recruitment should take into consideration national policies of affirmative action and reflect the

diversity of the offenders to be supervised.67

Such staff should be personally qualified, have

professional training and practical experience and also be placed on adequate salary and benefits

62

Rules 13.5 &13.6

63 Rule 14.1

64 Rules 14.2. 14.3

65 Rule 14.4

66 Rule 14.5

67 Rule 15 (1)

15

commensurate with the nature of the work. Ample opportunities should be provided for professional

growth and career development.68

Rule 16 provides for training and retraining of staff. Before entering duty, staff is to be given

training that includes instruction on the nature of non-custodial measures, the purposes of

supervision and the various modalities of the application of non-custodial measures. After entering

duty, staff is to maintain and improve their knowledge and professional capacity by attending in-

service training and refresher courses.

Volunteers and other Community Resources

Part VII is on volunteers and community participation. Public participation is to be encouraged as it

is a major resource and one of the most important factors in improving ties between offenders

undergoing non-custodial measures and the family and community. It should complement the

efforts of the criminal justice administration.69

Public Understanding and Cooperation

Rule 18 is a call for public understanding and cooperation. Government agencies, the private sector

and the general public should be encouraged to support voluntary organizations that promote non-

custodial measures70

. Conferences, seminars, symposia and other activities should be regularly

organized to stimulate awareness of the need for public participation in the application of non-

custodial measures.71

The role of the mass media is emphasised. All forms of the mass media are to be utilized to help to

create a constructive public attitude, leading to activities conducive to a broader application of non-

custodial treatment and the social integration of offenders72

. Besides the role of the media in public

enlightenment on this issue, every effort should be made to inform the public of the importance of

its role in the implementation of non-custodial measures.73

68

Rules 15 (2) & (3)

69 Rule 17. 1

70 Rule 18.1

71 Rule 18. 2

72 Rule 18.3

73 Rule 18. 4

16

Volunteers

19.1 Volunteers are to be carefully screened and recruited on the basis of their aptitude for and

interest in the work involved. They are to be properly trained for the specific responsibilities to be

discharged by them.74

They are to encourage offenders and their families to develop meaningful ties

with the community and a broader sphere of contact by providing counselling and other appropriate

forms of assistance according to their capacity and the offenders' needs.75

The Volunteers are to be insured against accident, injury and public liability when carrying out their

duties, and reimbursed for authorized expenditures incurred in the course of their work.76

VIII. Research, Planning, Policy Formulation and Evaluation

Rule 20 calls for research on non-custodial mechanisms by both the public and private sector.

Hence, research on the problems that confront clients, practitioners, the community and policy-

makers to be carried out on a regular basis. Research and information mechanisms should be built

into the criminal justice system for the collection and analysis of data and statistics on the

implementation of non-custodial treatment for offenders.

Programmes for non-custodial measures should be systematically planned and implemented as an

integral part of the criminal justice system within the national development process. Regular

evaluations should be carried out with a view to implementing non-custodial measures more

effectively. In addition, periodic reviews should be concluded to assess the objectives, functioning

and effectiveness of non-custodial measures.77

Suitable mechanisms are to be should be evolved at various levels to facilitate the establishment of

linkages between services responsible for non-custodial measures, other branches of the criminal

justice system, social development and welfare agencies, both governmental and non-governmental,

in such fields as health, housing, education and labour, and the mass media.78

74

Rule 19.1

75 Rule 19. 2

76 Rule 19. 3

77 Rule 21

78 Rule 22

17

Finally, the Rules emphasize the need to promote international cooperation between countries in

the area on non-institutional treatment. The cooperation should be directed towards strengthening

research, training, technical assistance and the exchange of information among Member States on

non-custodial measures. The cooperation should be through the United Nations institutes for the

prevention of crime and the treatment of offenders, and the Crime Prevention and Criminal Justice

Branch of the Centre for Social Development and Humanitarian Affairs of the United Nations

Secretariat.79

Still on research, states are enjoined to further comparative studies and the

harmonization of legislative provisions in order to expand the range of non-institutional options and

facilitate their application across national frontiers, in accordance with the Model Treaty on the

Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released80

.

Overview of Non-Custodial Measures in the Lagos State Administration of

Criminal Justice Law (ACJL) 2007

This law was signed into law by on May 28, 2007, by former Governor of Lagos State, Chief

Ahmed Bola Tinubu. Before the Law was passed, the Lagos State Ministry of Justice held several

Stake holders’ Summits, where the judiciary, policy makers, legal practitioners and the general

public participated in fashioning a new law believed to be workable to replace the Criminal

Procedure Law of Lagos State.81

The new Law contains several innovations in almost all the arrears

of criminal justice administration. This part of this paper will proceed to discuss the non-custodial

measures in the Law.

Fine

The fine is the most commonly specified sentence in our penal system. It is used either by itself or

in conjunction with other sentence. The policies pursued in imposing fines are those of retribution,

deterrence, revenue collection, victim compensation and prevention.82

Fine is commonly specified as the exclusive penalty for a wide range of petty offences against local

regulations, traffic offences, postal offences, food and drugs offences, shipping offences, tax

79

Rule 23. 1

80 Adopted by General Assembly resolution 45/119 of 14 December 1990. This treaty promotes mutual

assistance in transfer of supervision of offenders conditionally sentenced or conditionally released. 81

Cap. C 16, 2003 Laws of Lagos State.

82 Milner A., The Nigerian Penal System, (London: Sweet and Maxwell, 1972) p. 141.

18

invasion, etc.83

The court is empowered to use its discretion to impose a fine in lieu of

imprisonment where it has authority under any written law to impose imprisonment for any offence

but has no specific authority to impose a fine for that offence.84

In the case of a conviction in the High Court, the amount of the fine is to be in the discretion of the

court and any term of imprisonment in default of the payment is not to exceed two years.85

In the

case of a conviction by a magistrate, the amount of the fine is also at the discretion of the

magistrate, but it is not to exceed the maximum fine authorized to be imposed by the magistrate

under the law. No term of imprisonment imposed in default of payment is to exceed the maximum

fixed in relation to the amount by the scale in section 323.86

By the provisions of section 324 ACJL, a Court in fixing the amount of fine to be imposed, on an

offender, is to take into consideration amongst other things, the means of the offender. Where fine

is imposed, the payment of the court fees and police fees payable shall not be taken into

consideration in fixing the amount of the fine or be imposed in addition to the fine. The amount of

the fine to be paid is applied as follows:

a. The repayment to the informant or victim of any court or other fees paid by him and ordered

by the court to be repaid;

b. The payment of any court fees not already paid by the informant or victim which may be

payable under the rules of court;

c. The balance if any, remaining after the payments have been made is to be paid into general

revenue.

There is a general power of awarding imprisonment in default of payment of penalty in section 323.

The section sets out a limitation of imprisonment scale. The term of imprisonment set out in the

scale must not be exceeded, but shall be such that will satisfy the justice of the case

83

Ibid, p. 138.

84 Section 320 (1) of the Administration of Criminal Justice Law 2007 (Lagos State). See section 382 of the

CPA.

85 Section 320 (2) ACJL

86 Section 320 (3) ibid

19

Fines can deter the offender if he is poor enough and to some extent make restitution but it certainly

cannot reform an offender.87

W. A. McEwen articulated the advantages of using fines as a means of

treating offenders as follows:

1. It provides an alternative in some cases to imprisonment, and saves the offender from the

embarrassment and stigma of being a prisoner.

2. It saves the offender from the contamination, degeneration and callousness of which he is

exposed, if he has to serve a prison sentence.

3. It is a less expensive means of correction to the state.88

Forfeiture and Confiscation

The word “forfeit” has been defined to mean to incur a penalty, to become liable to the payment of

a sum of money as a consequence of a certain Act. It has also been defined to mean to give up

something or have something taken away as a consequence of or punishment for having done

something wrong.89

The philosophy behind forfeiture is to confiscate the property used by an accused person in

connection with an offence which will prevent him from committing the offence, at least, with the

confiscated property90

. Examples of items that may be confiscated include: weapons, house

breaking implements, motorcycles, motor vehicles, computers, printers, pirated materials, obscene

literature, etc.

Section 294 of the ACJL provides that during or at the conclusion of any trial, the court can make

orders for the disposal, confiscation or otherwise of any movable or immovable property. In the

case of immovable property, production of title document, deed, certificate of occupancy, or receipt

of purchase of such property is deemed as production of the property itself before the court.

The court is also authorized to seize any thing intended to be used in commission of offence.

87

McEwen W. A. “Non-Institutional Treatment of Offenders” in The Nigerian Magistrate and the Offender, p.

99.

88 Ibid.

89 See A.G. Bendel vs. Agbofodoh (1999) 2 NWLR (Pt. 592) 476.SC

90 A. Milner, The Nigerian Penal System, Supra, note 82, p. 150

20

The court is to order the seizure of any instruments, materials or things which there is reason to

believe are provided or prepared, or being prepared, with a view to the offence triable by the court.

The court is to direct such things to be forfeited, confiscated, held or otherwise dealt with91

The courts also have the power to confiscate and destroy seditious materials on conviction under

sections 51 and 58 of the Criminal Code92

. In the same vein, the court can also seize foods or drink

in respect of which a person has been convicted and other unfit and adulterated food or drink in his

possession.93

Section 132 provides for forfeiture of recognizance. Where the court is satisfied that the person has

failed to comply with the conditions of the recognizance upon which he was admitted to bail, that

magistrate or Judge may declare the recognizance to be forfeited. Also where a recognizance to

keep the peace and be of good behavior or not to commit the same act is breached and as a result of

the breach the person is convicted, such recognizance is forfeited under section 134

Section 302 of the ACJL provides for mode of dealing with non-pecuniary forfeiture. The Corrupt

Practices and other Offences Provisions Act, 2000 has elaborate forfeiture provisions94

. Section 47

provides for forfeiture of property upon prosecution for an offence. The Economic and Financial

Crimes Commission Act, 2004 also provides for forfeiture of assets and properties under section 20

of the Act.

Restoration

This entails giving back; to make something look as it looked originally by repairing, etc. to put

back into place.95

Restoration strictly so called in the criminal process arises when a person is made

to disgorge a benefit, which he has unjustly acquired. Such an order can be made where the

defendant has acquired a benefit through his own wrongful or criminal act, such as may occur in the

case of stealing or obtaining property by false pretence96. Section 298 ACJL provides that whenever

a person is convicted of an offence attended by criminal force and it appears to the court that by

91

Section 295 ACJL

92 These sections deal with publication of seditious materials and prohibited publications respectively.

93 Section 296 (2) ACJL

94 See sections 20 & 48

95 Ibid.

96 F. O. Babafemi., “Restitution and Compensation of Criminal Justice” in Adeyemi, A. A. (Ed.), The Nigerian

Criminal Process, (University of Lagos Press, 1977), p. 251.

21

such force, any person has been dispossessed of any immovable property, the court it deems fit, is

to order the possession of the property to be restored to such person.

Restitution

The idea of restitution and compensation is that the victim of a property offence should as far as

possible be put back into the position he enjoyed before the offence.97

Restitution refers to the

return of movable property dishonestly acquired or taken without authority. Under our criminal

procedure laws, restitution relates to the return or restoration of movable property either stolen or

otherwise dishonestly acquired;98

or taken without permission.99

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1986100

.

The Declaration provides for the remedies of restitution and compensation. Principle 8 provides that

Offenders or third parties responsible for their behaviour should, where appropriate, make fair

restitution to victims, their families or dependants. Such restitution should include the return of

property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of

the victimization, the provision of services and the restoration of rights101

. Paragraph 9 is a call on

governments to review their practices, regulations and laws to consider restitution as an available

sentencing option in criminal cases, in addition to other criminal sanctions.

Section 300 of the ACJL deals with restitution and disposition of property found on person

arrested. It states:

“Where, upon the arrest of a person charged with an offence, any property, other

than that used in the commission of the offence, is taken from him, the court before

which he is charged shall order-

(a) that the property or a part thereof be restored to the person who appears to the

court to be entitled thereto, and, if he be the person charged, that it be restored

either to him or to such other person as he may direct; or

97

A. Milner, The Nigerian Penal System, supra note 82, p. 127

98 See section 270(1) of the Criminal Procedure Act, Cap. C. 41 L FN, 2004

99 Section 357 (1) of Criminal Procedure Code, Cap. 30 Laws of Northern Nigeria, 1963.

100 See the General Assembly Resolution 40/34, 1986.

101 Paragraph 10 provides that in cases of substantial harm to the environment, restitution, if ordered, should

include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of

community facilities and reimbursement of the expenses of relocation, whenever such harm results in the

dislocation of a community.

22

(b) that the property or a part thereof be applied to the payment of any costs or

compensation directed to be paid by the person charged”.102

Section 301 of the ACJL is on restitution of stolen property. By that provision, the court convicting

an offender, is to may order that such property or a part thereof be restored to the person who

appears to it to be the owner thereof, either on payment or without payment by the owner to the

person in whose possession such property or a part thereof then is, of any sum named in such order.

This provision does not apply to:

a. any valuable security which has been bona fide paid or discharged by any person liable to

pay or discharge the same;103

b. any negotiable instrument which shall have been bona fide receives by transfer or

delivery by any person for a just and valuable consideration without notice or without

any reasonable cause to suspect that it had been stolen104

Section 299 of the ACJL makes provisions for another class of victims. This time, it is not the

person who suffered the initial direct impact of the crime, but the innocent person who bought the

stolen property from the offender without knowing or having reason to believe that such property

was stolen. It provides that upon the application of the innocent purchaser and the restitution of the

property to the person entitled to the possession, the court should order that out of any money taken

out of the offender’s possession on his arrest, an amount not exceeding the price paid by such

purchaser should be delivered to him.105

There is no provision as to what happens where the amount

is not enough to compensate the innocent purchaser. It is suggested that courts should in such

circumstance award further compensation106

.

In the U.S., courts in determining restitution generally rely on three methods:

1. Judicial fiat- The judge orders the amount based on court room testimony, the plea agreement, the

pre-sentence report, victim allocution, or the like. The Court must also consider the defendant’s

finances.107

102

The equivalent provision is contained in section 269 of the CPA. The difference is that the words “may” in

the CPA was substituted with the word “shall” in the ACJL

103 Section 270 (2) (a) ibid.

104 Section 270 (2) (b), ibid.

105 The provision is adapted from section 268 of the CPA.

106 Ani C.C, “Extending the Frontiers of Remedies for Crime Victims in Nigeria”, supra note 48, p. 113.

107 Klein A. R., Alternative Sentencing. A Practitioner’s Guide, supra note 8, 156-157.

23

2. Insurance claim- This is similar to the way policy holders make a claim on their insurance. The

victim presents all the documented bills like bills for clean up, repair and/or replacement, medical

bills, etc. He may also present his insurance coverage and claims to determine how much of the

losses are covered by insurance.108

3. Victim/offender meetings- In this method, the offender and the victim meet to work out a

mutually satisfactory agreement. This can take the form of victim-offender mediation (VOM).

VOM compensates and makes restitution to the victim for the loss suffered as a result of the crime

by making the offender take personal responsibility for making good his loss. It gives the victim an

opportunity to tell the offender how the crime affected him or her and the offender has the

opportunity to apologize, explain his or her behaviour and make some reparation or pay

compensation109

. The victim/offender meeting if well structured and monitored, can result in more

simple restoration agreements. It can also help resolve the conflict between the parties that led to

the crime.110

Criminal Justice Victim’s Remedies (CJVR) Bill, 2006 makes provisions for court to order

compensation and restitution to be granted to victims of crime. Section 25 of the Bill provides that

when sentencing an offender convicted of a crime, the court may in addition to or in lieu of any

other penalty authorized by law, order the offender to make or pay compensation to any victim of

the crime or to the victim’s estate. Where any other penalty, like fine is also ordered, priority is

accorded to execution of the restitution or compensation order.111

Compensation Order

Compensation is a form of personal reparation disbursed to the victim of crime by the offender

upon the order of a court after a conviction of the offender with a view to preventing the unjust

enrichment of the offender as well as effectively ensuring that the victim is restored as far as

possible to the status quo ante criminem.112

108

Ibid.

109 Ani C. C. “Extending the Frontiers of Remedies for Crime Victims in Nigeria”, supra, note 48, p. 126.

110 Ibid.

111 Section 32, ibid.

112 Section 6 of the South African Service Charter for Victims of Crime provides that “Compensation” refers to

an amount of money that a criminal court awards the victim who has suffered loss or damage to property,

including money, as a result of a criminal act or omission by the person convicted of committing the crime.

Available at www.npa.gov.za/UploadedFiles/Victims charter. Last visited on 15/11/2010.

24

Compensation as a remedy is usually resorted to where restitution is impracticable. Compensation is

not aimed at recovering an ill gotten gain. Whenever the court award compensation to the victim of

a crime, they are merely attempting to relieve him of any loss which he may have suffered,

physically or financially.113

It is usually resorted to mainly in cases of personal injury such as

assaults and sexual offences and offences relating to property, especially where the property is

either damaged or destroyed or cannot be found.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power114

calls on

states to endeavour to provide compensation when it is not fully available from the offender. Such

compensation are payable to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health

as a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become physically or mentally

incapacitated as a result of such victimization115

.

Probation Orders-By section 345(2) ACJL, when a court is making a probation or community

service order, the court, in addition to any such order, is to order the offender to pay damages for

injury or compensation not exceeding (N20, 000) or if a higher limit is fixed the statute creating the

offence, that higher limit.

A. O. Obilade is of the opinion that if courts avail themselves of the opportunity of ordering the

payment of compensation, such a practice would have a greater deterrent effect on offenders and the

law –abiding population than the imposition of fines.116

Enforcement of award of Compensation

Section 291 of the ACJL provides that where a defendant defaults in paying any sum awarded as

compensation in the order of discharge or acquittal, the person making the default is to be

imprisoned with or without hard labour for any term not exceeding the term prescribed in respect of

a like sum in the scale of imprisonment set out in section 323.

113

Babafemi F. O., “Restitution and Compensation in the Administration of Criminal Justice” in Adeyemi A. A

(Ed.), Nigerian Criminal Process, supra, note 96, p. 115.

114 Supra note 87.

115 Section 12, ibid.

116 Obilade A. O, “A Critique of Our Criminal Court System”, in Adeyemi A. A. (Ed.), Nigerian Criminal

Process, supra, note 96, p. 252.

25

Probation

Probation is a widely used non-custodial sentencing option all over the world. It has a long and

deeply rooted tradition in Common Law countries where the sanction is commonly applied, mostly

upon a discretionary decision by a prosecutor or a judge.117

Probation is a non-custodial court

sanction by which a juvenile or adult defendant, who has been adjudicated or found guilty of an

offence, is diverted from commitment to a juvenile or adult correctional institution and released,

subject to certain conditions imposed by the court and under the supervision of a probation

officer.118

Offenders who are placed on probation are set at liberty conditional upon their being of good

behaviour. They are usually required to enter into a “bond” or “recognizance”, which incorporates

certain conditions for their release. If they breach a condition of their bond, they may be called up

by the court for re-sentencing. Supervised probation requires an offender to be placed under the

supervision of a probation officer. Probation includes restrictions on their personal freedom, with

opportunities and assistance for them to address problems and issues associated with their offending

behaviour. It can incorporate reparation by requiring the offender to make financial amends to the

victim and/or undertake work or service of benefit to the victim or community.119

Probation as a punishment, offers the opportunity of rehabilitation and reintegration into the

community without the social and family disruption caused by imprisonment. This is particularly

true of juvenile supervision.

Statutory provisions for probationary sentences have always existed in our statutes, but regrettably,

except for juveniles, our judges and magistrates hardly make use of it. A Government source while

acknowledging this anomaly, stated:

“Evidence shows that on the basis of the statutorily stipulated criteria for probationary

sentences, about 40% of offenders presently sent to prison should have qualified for such

sentences. This situation may be explained by the colonial heritage and training of our justice

117

M. Day, Alternatives to Custodial Sentencing A Manual for the Implementation of Community Service

Orders in the O.E.C.S. Available at: http://74.6.238.254/search/srpcache?ei=UTF-

8&p=non+custodial+sentencing+options&xa=Nk9uAakW.xjA.qE0qN.TAw--%2C1290905265&fr=yfp-t-701-

118 Ibid

119 Available at:

http://www.scotborders.gov.uk/criminaljustice/nationalobjectives/cj/standards/htm/typesofprobationorder.html

Accessed on 2/12/2010

26

administrators, their belief in deterrence, and their tendency to take the path of least

resistance, i.e. imprisonment and/or fine”120

The provision on probation and supervision in the ACJL flows from the provisions of section 345

already stated above. Where a non-indictable offence charge is proved but the court is of the

opinion that having regard to some circumstances like the character, antecedents, age, health, or

mental condition of the offender or the extenuating circumstances under which the offence was

committed, it is expedient to release the offender on probation or for community service, the court

can either dismiss the charge, or discharge the offender conditionally. Such a recognizance may

contain a condition that the offender be placed under the supervision of a person called a probation

officer.121

The law requires the consent of the probation officer to be sought before the order is

made.122

The recognizance ordered to be entered may contain other additional conditions like:

a. residence

b. abstinence from intoxicating liquor

c. any other matter as the court may having regard to the particular circumstances of the case

consider necessary for preventing a repetition of the same offence or any other offence.

The court making the probation order is to furnish the offender in writing, in simple terms, the

conditions he is required to observe.

A person named as the probation officer may at any time be relieved of his duties and replaced by

consent, with another person. Also, where a probation officer dies, another will be substituted by

the court before which the offender is bound by his recognizance to appear for conviction or

sentence.123

Functions of Probation Officers

Generally, a Probation Service is an organization or a department in the Ministry of Youths and

Social Welfare, which manages offenders under supervision in the community. It is a law

120

“Crime and the Quality of Life in Nigeria”. Nigerian National Paper to the Sixth United Nations Congress,

pp.1-9, cited in Ahire P., “ Penological Policies of the Nigerian Criminal Justice System”, supra, note 12, p. 337

121 Section 346 (1) ACJL

122 Ibid.

123 Section 347, ibid

27

enforcement agency whose aim is to protect the public, reduce re-offending, enforce the orders of

the Court, take account of the needs of victims and rehabilitate offenders.124

In some countries Probation officers mediate between offenders and victims in order to reach a

solution which satisfies both sides. Probation Services are also entrusted with the supervision of

parolees/conditionally- released prisoners. In these cases, probation officers often participate in the

release preparation together with prison staff and partners.

The goal of supervision is to increase the capabilities of the supervised person to lead life without

crime and to work to prevent new crimes. Much of Probation practice focuses on identifying and

making available those services and programmes that best afford offenders an opportunity to

become responsible, law-abiding citizens. In other words, a Probation Service works to rehabilitate

the offender and foster his/her reintegration in the community as well as to facilitate his/her

renewed participation in society. In addition to these tasks, a Probation Service may provide

services to Courts at the pre-sentence and post-sentence stages. Most common tasks include

assisting Courts decisions by providing them with information and advice on offenders through

investigation, and reports for pre-sentence, bail, sentence etc.125

Section 233 of the Lagos State Child’s Rights Law 2007 provides as follows: It shall be the duty of

supervision officer126

subject to the discretion of the court to:

a. Visit or receive reports from the person under supervision at such reasonable intervals as may be

specified in the probation order or subject thereto, as the officer may think fit;

b. To see that he observes the conditions of his recognizance;

c. To report to the court as to his behaviour;

d. To advise, assist and befriend him and when necessary to endeavour to find him suitable

employment.

J.O. Oki observed that the effectiveness of the adult Probation Service is hampered greatly by the

fact that only few cases are referred to the Adult Probation Officer and a number of the very few

cases referred are not the ideal ones for probation.127

124

See http://www.unicri.it/probation/prb_aboutus.htm. Accessed on 3/12/2010.

125 Ibid.

126 the Children and Young Persons Act has an equivalent provision, but referred to “Probation Officer”.

127 Oki J. O., “The Role of the Social Welfare Service in the Administration of Criminal Justice” in A.A.

Adeyemi (Ed.), Nigerian Criminal Process, supra, note 96, pp. 279-280

28

Types of Offences

Section 345 ACJL mentions non-indictable offences as the offences for which probation order may

be made. The ACJL did not define non-indictable offence. It only gave the meaning of an indictable

offence. Section 357 says that an indictable offence any offence:

a. which on conviction may be punished by a term of imprisonment exceeding two years, or

b. which on conviction, may be punished by imposition of a fine exceeding four hundred naira

(N400.00); not being an offence declared by the law creating it to be punishable on summary

conviction.

It therefore follows from the above definition of indictable offence that a non-indictable offence is

an offence punishable by a term of imprisonment not exceeding two years, or fine below N400.00

or the law creating it has declared it to be punishable summarily.

The court in considering the use of probation will have to also take into account, some

circumstances like the character, antecedents, age, health, or mental condition of the offender or the

extenuating circumstances under which the offence was committed. From the foregoing, it can be

applied in certain mental cases.128

While some take the simple view that first offenders should be put on probation, it has been argued

that this factor should be considered along other circumstances. If the crime is serious and the court

sees in the offender the signs, intentions and characteristics of an inherent and dangerous criminal,

then he or she may be sentenced to prison.129

Community Service Order

Community service order is a novel sentence in our criminal justice system in Nigeria. It made its

first entry with the ACJL. A Community Service Order is an order from the Court whereby an

offender is offered the opportunity of compensating society for the wrong she/he has done by

performing work for the benefit of the community, instead of going to prison. Community Service

128

See MacEwen W. A., “Non-Institutional Treatment of Offenders (Including Juvenile Delinquents), in The

Nigerian Magistrate and the Offender, p. 96

129 Ibid. p. 97

29

as a sentence is usually only available for certain types of offences and for certain types of

offenders.130

The rationale for community service is that prisons are expensive to maintain considering the

enormous tax payers fund spent on feeding, housing and caring for prisoners. Another justification

for community service is that many of the people in the various prisons are not violent or dangerous

criminals that would require the protection of the society from them. Many of the prison population

are people of poor background who committed simple offences like environmental offences, traffic

offences, affray, assault etc. By sending such offenders to community service, the community

benefits positively and population of the already congested prison is not increased.

Section 345 (1) ACJL provides that where any person is charged before a court for a non-indictable

offence and the Court finds that the charge is proved but is of the opinion that having regard to the

character, antecedents, age, health, or mental conditions of the person charged, or to the trivial

nature of the offence or to the extenuating circumstances under which the offence was committed, it

is inexpedient to impose any punishment order than a nominal punishment, or that it is expedient to

release the offender on probation, or for community service, the court without proceeding to

conviction, is to make an order, either dismissing the charge, or discharging the offender on his

entering into recognizance with or without sureties to be of good behaviour for a period not less

than one year and not exceeding three years.

Section 350 states the nature of the community services available where a court has made an order

committing an offender to render community service. Such services include:

a. Environmental sanitation, or

b. Assisting in the care of children and the elderly in Government approved homes, or

c. Any other type of service which in the opinion of the court would have a beneficial and salutary

effect on the character of the offender.

Section 350 (3) provides for the appointment of a Community Service Officer in each Magisterial

District in a State. This provision for only one Community Service Officer for each Magisterial

District is absurd and can make nonsense of this laudable initiative. One Community Service

Officer even if he is “super human” can not discharge the heavy burden in terms of work load that

130

Marcus Day, Alternatives to Custodial Sentencing A Manual for the Implementation of Community Service

Orders in the O.E.C.S. Available at: http://74.6.238.254/search/srpcache?ei=UTF-

8&p=non+custodial+sentencing+options&xa=Nk9uAakW.xjA.qE0qN.TAw--%2C1290905265&fr=yfp-t-701-

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will be placed on him. There are many courts within each magisterial District with so many cases to

handle. If the judicial officers receive the message of non-custodial sentencing favourably, then it

will be logical to say that very many community Service Officers will be required to ensure that

offenders placed on community service really renders the prescribed service. It will be ideal to have

at least one Community Service Officer attached to each court.

The Community Service Officer and the offender are mandated to enter into a written agreement

specifying the number of hours of service that would be rendered on a daily or weekly basis, which

is to be filed in the Court’s Registry by the Community Service Officer.131

Breach of Community Service Order

Where the offender against whom an order was made, refuses or defaults to enter into the written

agreement, or breaches the terms of the agreement on more than three occasions without any lawful

excuse, the Court on application of the Community Service Officer, is to issue a bench warrant for

his arrest.132

If on appearance before the court, the offender shows a lawful or valid excuse for the

breach of the agreement, the Court may permit the continuation of the order. Where on the other

hand the Court is satisfied that he has no valid or lawful excuse, the Court is to convict and make a

custodial sentence having regard to the prescribed punishment for the offence and the length of

community service already performed.133

Conclusion

Social reintegration of those undertaking non-custodial sanctions and post-release reintegration,

including of those on various forms of conditional release, is the responsibility of the probation

service under the Ministry of Youths and Social Welfare. They are to provide support, assistance

and supervision of offenders and ex-offenders.

The desirable large scale use of non-custodial sentencing will only be achieved if stricter guidelines

are given and obeyed by judges and magistrates who give the sentences. The inception of

community service necessitates that local authorities, voluntary bodies, various administrative

departments, and the general public must be informed. This therefore calls for massive

dissemination of information in several directions.

131

Section 350 (2) (i) & (ii)

132 Section 350 (2) (iii)

133 Section 350 (2) (iv)

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Extensive use of non-custodial measures requires the development of a considerable network of

skilled people, not only within the judicial and prosecuting bodies but also within the social and

administrative authorities. The enforcement of non-custodial sanctions might be stalled because of

the absence of the necessary personnel, support structures, and so on. For this reason, in order to

improve its effectiveness and competence, the Ministry of Youths and Social Welfare needs

organised, skilled and proficient staff with the necessary training and support structures. Insightful

judges and magistrates with the help of competent defence and prosecuting counsel and probation

officers, possess powerful tools in making non-custodial sentences that fit not only the crime, but

the criminal, the victim and the community.

Nigeria is yet to ratify the Tokyo Rules. It is imperative for Nigeria to ratify the rules and ensure

that all its criminal justice laws are fully compliant with the Rules.