Introduction
Imagine being arrested over an allegation made against you and subsequently taken to court. You are told that you have been charged with a criminal offence. Yet, at the same time, the police or other security agency investigating the matter is still conducting investigations into the allegation.
Witnesses are still being interviewed. Documents are still being obtained. Statements are still being taken. Evidence is still being gathered. Perhaps the investigating officers are still trying to determine exactly what happened and whether the person arrested actually committed the alleged offence.
This raises an important question:
Is it fair to charge someone to court when the investigation into the allegation against that person is still ongoing?
As a matter of fairness, there is a strong argument that a person should not ordinarily be subjected to criminal proceedings before the investigation has sufficiently established the case that the person is being called upon to answer.
A criminal charge is a serious matter. It invokes the authority of the State against an individual and requires that individual to defend himself before a court. It may affect his liberty, reputation, employment, business, finances and family.
It is therefore important that the decision to charge a person should ordinarily come after sufficient investigation, rather than the charge itself becoming a means through which the authorities continue searching for evidence.
There is, however, an important qualification. The fact that some aspects of the investigation remain outstanding does not necessarily make the charge improper, provided the outstanding investigation is not necessary to establish the charge itself.
The critical issue, therefore, is not simply whether the investigation is “ongoing”.
The critical question is:
Was there sufficient evidence to justify the particular charge when it was brought?
A criminal charge should ordinarily be the product of an investigation
The purpose of a criminal investigation is to discover and establish the facts surrounding an alleged offence.
The investigating authority is expected to examine the allegation, identify the relevant facts, obtain available evidence and determine whether there is a sufficient basis for taking further action against the suspect.
A criminal prosecution is different.
Once a person is charged, the matter has moved beyond the mere investigation of an allegation. The State is now asking a court to adjudicate a criminal accusation against that person.
This distinction matters.
There is a fundamental difference between saying:
“We are investigating whether this person committed an offence.”
and saying:
“We have charged this person with committing an offence.”
The first is an investigative position.
The second is a prosecutorial position.
The decision to move from one to the other should not be taken lightly.
Investigation should not become a substitute for evidence
One of the greatest concerns that arises when a person is charged before investigation has sufficiently progressed is the possibility that the criminal process will be used to obtain the evidence that ought to have been gathered before the charge was filed.
In other words:
Charge first, investigate later.
That approach is difficult to reconcile with basic principles of fairness.
If the authorities are still trying to establish whether the alleged offence was committed, whether the defendant was involved, or what evidence connects the defendant to the offence, it is legitimate to question why the person has already been placed before a criminal court.
The court should not ordinarily become the place where investigators continue an investigation that has not yet sufficiently established the case against the defendant.
This is particularly important where the commencement of the proceedings is accompanied by an application to keep the defendant in custody.
A person should not be deprived of his liberty simply because the investigating authorities have not yet completed the work necessary to determine whether there is a prosecutable case against him.
The Supreme Court while considering the circumstances surrounding the remand proceedings in Lufadeju & Anor v. Johnson (2007) LPELR-1795(SC), pp. 23-24, paras. E-C, reproduced a significant observation from the lower court concerning the danger of bringing an accused before a court merely for further investigation. The lower court stated that:
“Before an accused is brought before the court it should be assumed that the case is ripe for hearing, not for further investigation. He must not be there on mere suspicion under section 35 of the Constitution. If there can be no sensible and prima facie inferences that can be drawn that an offence has been committed then the accused cannot be deprived of his liberty even for a second.
There cannot be a holding charge “hanging over an accused in court pending the completion of investigations into the case against him . . . The police have not by section 32(1)(c) of the 1979 Constitution been given unbridled powers to deprive citizens of their liberty while the case against them is still investigated.
One often times hears the police claim that investigations have been concluded that the advice of the office of the Director of Public Prosecutions (DPP) is required before an information can be prepared during which period the accused must have to remain in custody.”
The passage is particularly significant because it rejects the idea that a person can simply be kept within the criminal justice system on the basis of suspicion while the authorities continue investigating the case against him.
It is important, however, to understand the decision within its proper context. The case involved issues concerning remand and detention, and the passage should not be interpreted as establishing an absolute rule that no charge can ever be brought while any aspect of an investigation remains outstanding.
Its importance to the present discussion is the principle underlying the Court’s treatment of mere suspicion, investigation and deprivation of liberty.
A person should not be brought before a court merely because the authorities are still trying to establish whether there is a case against him.
“Investigation is ongoing” cannot be the end of the discussion
It is common to hear, particularly in criminal matters, that “investigation is ongoing”.
But that statement, by itself, tells us very little.
The relevant questions should include:
- What has the investigation established?
- What evidence has already been gathered?
- What offence is the person being charged with?
- What evidence connects the accused with that offence?
- What remains to be investigated?
- Why does that investigation still need to be conducted?
- Is the outstanding investigation material to the particular charge already before the court?
These questions help to distinguish a legitimate continuing investigation from a premature prosecution.
There is a difference between an incomplete investigation and an insufficient investigation
This is perhaps the most important qualification to the fairness argument.
An investigation can be incomplete without being insufficient to support a particular charge.
For example, investigators may already have sufficient evidence to establish an alleged offence but may continue investigating other aspects of the matter.
A witness may still need to be interviewed.
Additional documents may still be required.
Other persons involved in the transaction may still need to be identified.
Further evidence may be sought.
These circumstances do not necessarily mean that the original charge was premature.
The investigation may be sufficiently advanced to support the particular offence charged even though it is not completely finished in every respect.
Therefore, the mere fact that an investigation continues cannot, standing alone, determine whether the charge was proper.
But what if the investigation is insufficient to support the charge?
This is where the fairness argument becomes much stronger.
Suppose the police have not yet established the essential facts of the alleged offence.
Suppose they have not obtained the evidence necessary to connect the suspect to the offence.
Suppose the investigating officers are still trying to determine what actually happened.
Suppose the charge has been filed because the authorities believe that further investigation may eventually provide the evidence needed to support it.
That is a very different situation.
In such circumstances, the question is no longer simply whether investigation is continuing.
The real question is whether, at the time the charge was brought, the investigation had produced sufficient evidence to justify charging that particular person with that particular offence.
If the investigation had not produced sufficient evidence to support the charge, it is difficult to justify putting the defendant through a criminal prosecution while the authorities are still trying to obtain the evidence needed to establish the case against him.
The defendant should not be required to defend a criminal charge while the authorities are still investigating whether the evidence necessary to support that charge exists.
The defendant should not bear the burden of an incomplete investigation
The presumption of innocence is fundamental to criminal proceedings.
Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
This means that the fact that a person has been accused does not make him guilty.
The fact that the police suspect him does not make him guilty.
The fact that he has been arrested does not make him guilty.
And the fact that he has been charged does not make him guilty.
The responsibility of proving the criminal allegation remains with the prosecution.
It would therefore be troubling if the State could place a person before the court without sufficient evidence and then effectively require the person to remain in the criminal process while the authorities attempt to complete the investigation.
The defendant should not be made to bear the consequences of the State’s failure to complete the necessary investigative work before initiating prosecution.
Personal liberty is also at stake
The question becomes even more serious where the defendant is detained after being charged.
Section 35 of the Constitution protects personal liberty, subject to the circumstances and procedures recognised by the Constitution and other applicable law.
The power of the State to arrest and detain a person is therefore not unlimited.
Where a person’s liberty is being restricted while the authorities are still investigating the very case for which that person has been brought before the court, the justification for the detention deserves careful scrutiny.
This is particularly so where the authorities cannot point to sufficient evidence supporting the charge and the reason given for continuing the detention is simply that “investigation is ongoing”.
The criminal justice system must protect society from crime, but it must also protect individuals from arbitrary or unjustified interference with their liberty.
The role of the prosecuting authority
The decision to prosecute should therefore involve an assessment of the available evidence.
The National Policy on Prosecution 2016 (Federal Ministry of Justice) para. 1(2) – (3) also recognises the importance of careful evaluation of the evidence before deciding whether a prosecution is appropriate. It provides that a prosecutor must “carefully evaluate the evidence, apply the law and decide if a prosecution is appropriate” and that prosecutorial discretion should be exercised in a manner that is “consistent, fair and objective.” The Policy also recognises the prosecutor’s discretion, exercised on behalf of the public, in determining whether to institute a prosecution and how to conduct it once instituted.
The prosecutorial decision is significant because the commencement of criminal proceedings has consequences for the accused person even before the case is finally determined.
A prosecution should therefore not be commenced merely because an allegation has been made or because there is a desire to keep a suspect within the criminal justice system while additional evidence is being sought.
The evidence should be assessed before the decision to prosecute.
Does this mean that every aspect of the investigation must be completed before a charge is brought?
As a matter of fairness, there is a strong argument that the investigation should have progressed sufficiently to establish the case for which a person is being charged before the person is brought before a court.
However, this does not necessarily mean that every aspect of the investigation must have been completed before a charge can be brought. Investigations may continue after sufficient evidence has been obtained to support a particular charge.
The important distinction is therefore between an investigation that is still continuing in relation to matters that are not essential to the particular charge and an investigation that is still trying to establish the evidence necessary to support the charge itself.
In the first situation, the fact that the investigation remains ongoing does not necessarily make the charge unfair.
In the second, the fairness of charging the person becomes much more difficult to defend. A person should not ordinarily be charged simply because the authorities hope that further investigation will produce the evidence needed to support the charge.
What should happen before a person is charged?
Ideally, before a person is charged, the investigating and prosecuting authorities should have sufficiently established:
- What happened;
- Whether the facts disclose a criminal offence;
- What particular offence is alleged to have been committed;
- What evidence supports the allegation; and
- What evidence connects the accused with the alleged offence.
There may still be additional matters requiring investigation.
But those outstanding matters should not be so fundamental that the authorities are essentially still trying to discover whether a prosecutable case exists.
Conclusion
There is a legitimate public interest in investigating crime thoroughly. Police and other law enforcement agencies must be able to investigate allegations, gather evidence and identify those responsible for criminal conduct.
But that legitimate function should not obscure the rights of the person being investigated.
A criminal charge should ordinarily be the product of a sufficiently developed investigation, not a substitute for investigation.
The phrase “investigation is ongoing” should therefore not automatically answer the question of whether a prosecution is justified.
The more important question is:
“What has the investigation established at the time the person was charged?”
If the answer is that there is already sufficient evidence to support the charge, the fact that other aspects of the investigation remain ongoing may not, by itself, make the prosecution unfair.
But if the answer is that the authorities are still investigating to discover whether there is sufficient evidence to support the charge in the first place, then charging the person before that investigation is sufficiently developed is difficult to justify.
Investigation is an essential part of criminal justice.
But investigation should precede and provide the foundation for prosecution. It should not ordinarily be replaced by prosecution.
Disclaimer
This article is provided for general information and educational purposes only. It does not constitute legal advice and should not be treated as a substitute for advice from a qualified legal practitioner based on the facts and circumstances of a particular case.
The law and applicable procedures may change, and the legal position may differ depending on the nature of the alleged offence, the investigating authority, the court involved and the applicable legislation. Anyone involved in an arrest, police investigation, remand proceeding or criminal prosecution should obtain appropriate legal advice based on the specific facts of the case.
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