Ani Comfort Chinyere (Mrs.)

LL.B (Hons.) BL; LL.M., Ph. D

View profile: https://bit.ly/3cv6UY2

 

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 century[1].

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 punishment[2].

 

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 sentencing policy in the criminal legislation[3], 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 society[6]. 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 prison[7]. 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 fine[10].

 

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 unimplemented[13]. 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 offenders[14].  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]

Alternative sentencing options are assumed to be more restorative in nature, perhaps only because they are less retributive than imprisonment[17]. 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 Rights[21], the International Covenant on Civil and Political Rights[22], 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 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 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]

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 law[31].

Legal Safeguards

The Rules prescribes that the introduction, definition and application of non-custodial measures shall be prescribed by law[32]. 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 measures[37].

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 non-custodial measure is prohibited[38]. 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 punishment[39] The offender’s and his family’s right to privacy is to be respected[40]. 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 persons[41]

 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 intervention[43]  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, 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 appropriate[47]. Most of the measures enumerated have been the hallmarks of African criminal Justice. Apart from the different modes of punishment 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 offender[50]. 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.

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 appropriate[52].

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 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 victim[55].  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 rights[56].

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]

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 alternatives[65].

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 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 measures[70]. 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 offenders[72]. 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]

 

 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]

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 Released[80].

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 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:

1. The repayment to the informant or victim of any court or other fees paid by him and ordered by the court to be repaid;
2. The payment of any court fees not already paid by the informant or victim which may be payable under the rules of court;
3. 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

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 property[90]. 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.

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 with[91]

The courts also have the power to confiscate and destroy seditious materials on conviction under sections 51 and 58 of the Criminal Code[92].  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 provisions[94]. 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 pretence[96]. 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 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 1986[100]. 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 rights[101]. 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-

• 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
• 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:

1. any valuable security which has been bona fide paid or discharged by any person liable to pay or discharge the same;[103]
2. 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 stolen[104]

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 compensation[106].

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]
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 compensation[109]. 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]  

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 Power[114] 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 victimization[115].

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.

1. 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.

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 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:

1. residence
2. abstinence from intoxicating liquor
3. 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 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 officer[126] subject to the discretion of the court to:

 

1. 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;

1. To see that he observes the conditions of his recognizance;
2. To report to the court as to his behaviour;
3. 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]

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:

1. which on conviction may be punished by a term of imprisonment exceeding two years, or
2. which on conviction, may be punished by imposition of a fine exceeding four hundred naira (N00); 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 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:

1. Environmental sanitation, or
2. Assisting in the care of children and the elderly in Government approved homes, or
3. 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 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.

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.

 

FOOTNOTES:

[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.

[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.

[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.

[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.

[22]General 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.

[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

[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.

[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

[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

[45] Rule 6.

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

[47] Rule 8.1

[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.

[52] Rule 8.1

[53] Rules 10.2 & 10.3

[54] Ibid, Rule 10.3

[55] Rule 12.1

[56] Rule 12.3

[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.

[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)

[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

[74] Rule 19.1

[75] Rule 19. 2

[76] Rule 19. 3

[77] Rule 21

[78] Rule 22

[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.

[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

[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

[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.

[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.

[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.

[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.

[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.

[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

[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

[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

[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

[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-

[131] Section 350 (2) (i) & (ii)

[132] Section 350 (2) (iii)

[133] Section 350 (2) (iv)