THE DOCTRINE OF ALLOCUTUS AND ITS SIGNIFICANCE IN CRIMINAL JUSTICE

 UNDERSTANDING THE DOCTRINE OF ALLOCUTUS AND ITS SIGNIFICANCE IN CRIMINAL JUSTICE 

ABSTRACT 

The Nigerian Criminal Justice System places high value on fairness and due process. Judgement is not automatically passed by the court on a criminal who has just been convicted of a crime. He is allowed to say something in mitigation of the punishment before sentence is passed on him. This work attempts to examine the doctrine and brief history of allocution and its significance in criminal justice.

INTRODUCTION

In criminal procedure, when a person is convicted of an offenses, the court is bound to demand of him what he has to say as to why the court should not proceed to judgement against him; this demand is called "allocutus" or "allocution", and is entered on the record[1]. It grants the defendant the opportunity to address the court directly before sentencing[2] 

In LUCKY V. THE STATE, Muhammad JSC in his wisdom opined that an allocutus is a plea for the mitigation of the punishment rightly deserved by the appellant for the offense with which he has tried and convicted accordingly.[3]

However, this plea of allocutus can only be granted in criminal trial proceeding. It is pertinent to note the fact that this plea is not a fundamental right. It is only given at the discretion of the court. This position has been judicially upheld in the case of CHIDI V. THE STATE where the court held that an allocutus is not a fundamental right [4] it only provides a space for the convicted person to plead for mercy or raise a legal argument against a sentence.

SCOPE OF THE DOCTRINE OF ALLOCUTUS 

With time, the scope of allocutus was extended not only to capital offenses but to encompass a wider range of potential statements where defendants could express remorse, explain extenuating situations, state positive aspects of their character or even offer apologies to victims.

HISTORICAL DEVELOPMENT OF THE DOCTRINE. 

The right of allocutus developed in the U.S and was first established in the landmark case of Green v. United States (1967) where allocution was deemed to be  an essential part of a fair sentencing process. The court reasoned that without the opportunity to be heard, a sentence could be based on inaccurate or incomplete information.[5]

Rights of An Accused Person to Allocutus 

In some commonwealth jurisdictions such as the Australia and Brooklyn in the United States the right to make a plea in mitigation is absolute. Thus, if a judge or magistrate refuses to hear such a plea, or obviously fails to properly consider it, then the sentence would, without doubt, be overturned on appeal.

In the United States, a defendant is allowed the opportunity to allocute or explains his or herself before sentence is passed. Some jurisdictions like Brooklyn, hold this as an absolute right, and in its absence, a sentence but not the conviction may be overturned, with the result that a new sentencing hearing must be held and the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.

RIGHTS OF ALLOCUTUS UNDER NIGERIAN LAW 

Under the Administration of Criminal Justice Act, 2015,though no such word as ‘allocutus’ or ‘allocution’ is used in the Act, that notwithstanding, the provisions of sections 310 and 311 of ACJA are clear to the effect that their provisions are forms of ‘allocutus’ but in this case, ‘allocutus’ in this sense is not used as ‘why the court should not pass sentence on the accused person’ rather, it is used to mean ‘the defendant’s explanation why the sentence should be lenient.’ [6]

The procedures for this ‘allocutus’ under the Administration of Criminal Justice Act, 2015 are as follows:

   Section 310(1)  Where the finding is guilty, the convict shall, where ‘he has not previously called any witness to character, be asked whether he wishes to call any witness and, after the  witness,  if any, has been heard,  he shall  be asked  whether  he desires  to  make any  statement or produce  any necessary  evidence or information in mitigation of punishment in accordance with section 311  (3) of this Act.

  (2) "After the defendant has made his statement, if any, in mitigation of punishment the prosecution shall, unless such evidence has already been given, produce evidence of any previous conviction of the defendant."

Section 311(1) "Where the provisions of section 310 of this Act have been  complied  with, the  court may  pass   sentence  on  the  convict   or  adjourn   to   consider   and  determine  the sentence and shall then announce  the sentence in open court."

In the case of Segun Odunayo v The State, (2013) LPELR-21459(CA) the accused was convicted of murder and sentenced accordingly. Aggrieved by the decision of the trial court, he contended on appeal amongst other things that he was denied the right to fair hearing and defence because he was not allowed the opportunity for allocutus. It was held that, 

allocutus is a plea in mitigation of sentence and never a defence. Hence the contention of the appellant that failure to call for allocutus has obstructed his defence is therefore of no moment. The stage at which allocutus is made is after conviction before sentence hence … the failure to call allocutus would have affected the appellant's right to fair hearing (in no way). The appellant was charged and convicted. The punishment for the said offence is fixed by law and admits no discretion, being death penalty. 

 Again, where a sentence is very little, the court may wave aside allocutus altogether, hence, in Inspector General of Police v. Tegbe (1957) WRNLR, 125 an accused person was deprived of an opportunity for allocutus because the judgment given by the trial magistrate was read by another magistrate under Section 251 CPA (now repealed). The sentence was manifestly light for the offence and the court held that, although the practice adopted was undesirable, the sentence would not be reduced.

Curiously, it appears that, the silence of the law on the legal consequences of the court’s failure to ask the accused to allocute in mitigation of his impending sentence, means that the court is given absolute discretion on whether or not to observe it before sentencing a convicted person. It therefore, seems that, despite the plea of allocutus being arguably one of the most important aspects of a criminal proceeding, little attention is paid where an accused is denied the opportunity.  

Conclusion 

 The essence of allocutus is to cater for rationales that could not affect the mind of the court in determining the guilt of the accused during trial. That is to say, a defendant may have had a reason for committing the offence that he has been charged of, but those reasons are not sufficient to shield the defendant from liability. The primary aim of Allocutus is to mitigate the harshness of the accused’s impending punishment. It is not a time to raise new defences or argue new facts. The hope of the accused is that his statement may ‘touch the heart of the court’ to significantly reduce the length and the severity his sentence. Through allocution, an offender may present information to influence a judge to reduce the length or harshness of the sentence based on the offender’s individual situation. The plea is important since only evidence of an offender’s crime would be allowed to be adduced at trial, hence, judges must consider additional evidence during sentencing in order to fashion an accurate punishment. According to Mueller, it will afford the accused an opportunity to say something about his character since the bifurcated process of a criminal proceeding carefully excludes evidence of the defendant’s character and background evidence during the trial.

 The plea of allocutus is often abused by the court due to personal inclinations of the individual judge hence, the need for a constant reminder that justice must always be dispensed for the benefits of both the society and all. Notwithstanding, judges are also human beings with feelings, diverse beliefs and religious associations. It is common knowledge therefore, that almost every religion upholds as its fundamental dogma, the constant pontification of the need to forgive sinners no matter their offences.   The aim of such religious education is to weaken the mind and feed it with such humanistic feelings like compassion, empathy and pity. Thus, it is very probable, that a judge with such influence will be easily swayed by allocutus that invoked strong emotions. 

 Again, personal inclinations of judges may differ depending on the sources of their influence at a particular point in time. For instance, a judge whose little daughter was brutally raped and perhaps murdered, is likely to be strict in sentencing every subsequent convicted rapist that comes before him, however strong the allocutus.  

References

[1] https://thelawdictionary.ord/allocutus

[2] https://medium.com/@the_solicitorng/a-defendants-last-words-before-sentencing-the-plea-of-allocutus-

[3] (2016) LPELR 40541

[4] (2019) LPELR SC 63/2015

[5] 356 U.S 165 (1958)

[6] https://loyalnigerianlawyer.com/allocutus-in-nigerian-criminal-trial-interest-of-justice-should-always-be-the-guiding-principle-notwithstanding-the-case-of-francis-v-federal-republic-of-nigeria-2021-5-nwlr-pt-1769-398-at-412/

— The Law Clinic, University Of Jos