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The Constitution of the Federal Republic in section 35 (2) provides as follows; "any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or other person of his choice."

The above provision proceeding as it does, from the supreme law of the land- the grundnorm and couched in the imperative as it is, is time and time again flouted with impunity and with an attitude that bespeaks of utter and despicable ignorance. I had on occasion, been physically hauled out of the police interrogation room simply because, a dumb investigating police officer was not impressed by the insistence of my client to stand up for his rights, and my firm, but polite persistent insistence that my client's rights ought and should be respected.

It should be pointed out here that the arraignment and the trial of a person accused of committing a crime is but one of the stages in the criminal process. It has been posited, by Professor A. A. Adeyemi, that after the invocation of the criminal process on a person alleged to have committed a crime, that person commences his contact journey along the criminal process continuum from the point of his apprehension. The suspect is next kept in custody for interrogation, which is the next stage after arrest. This stage according to J. Baldwin & M. McConville in Police Interrogation and the Right to see a solicitor (1979 Crim. L.R.), is very important because it is what happens to the suspect while in custody that determines his plea and the subsequent disposition of his case. Suspects while in custody are very vulnerable. What they are alleged to have said thereat, most times under extreme torture and duress, go a long way in determining how their cases go in court.

Given the foregoing, it therefore becomes vitally necessary that an accused person should have an unimpeded access to a legal practitioner while in the custody of the police. This is why the Supreme Court of the United States of America, in the celebrated case of Miranda v Arizona, 384 US 472 (1966), included as chief among the warnings which must be given to the accused person prior to his being questioned by the police, the express information that the accused has a right to appointed counsel. This warning is meant to secure the suspect's right against self-incrimination under the 5th Amendment. One notes sadly, however, that this warning is yet to be operational in Nigeria. This is in spite of the above-referred constitutional provision. We live in a society with a very high illiteracy rate. Even the educated who, are not learned in the science of the law, may be unaware of the damaging consequences of an admission during interrogation This position finds recognition in the old case of Powell v Alabama, 287 US45 (1932) where the court said interalia: "even the intelligent and the educated layman has small and sometimes no skill in the science of the law. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence. He.....requires the guiding hand of counsel at every step in the proceedings against him." (emphasis mine) It should be reiterated here that proceedings against an accused person commences at the point of arrest and detention. This right to counsel would, therefore, become hollow as stated in the U.S case of Escobedo v Illinois,378 US (1964) at 488, if a conviction was already assured by an in-custody pre-trial examination whereat the accused person may have made some self incriminatory statement which would nail him at the trial. Were this to be the case, then the balance the constitution seeks to strike in favour of the right of the accused person to be advised by his counsel of his right against self-incrimination, would have then been defeated.

The right to counsel according to Mr. Justice Schaefer of the Illinois Supreme court is by far the most pervasive of all the rights that an accused person has as it affects his ability to assert any other right he may have denial has been held by the superior courts of our land to be mount to a denial of fair hearing. See for instance, the case of Udo v the State (1988) 3 NWLR (Part 82) 316

As pointed out earlier, it is worrisome to note that the police, far from informing an accused person of his right to counsel, in fact go ahead to deny him this right. According to a study conducted by the Nigerian Institute of advanced Legal Studies sometime ago, a great number of suspects were not allowed to consult with a legal practitioner for various reasons amongst which is the disposition of the officer in charge!

It is respectfully submitted that the Nigeria Police Force should live up to their constitutional responsibility of adequately informing any person arrested on the suspicion of committing a crime of his right to consult with a legal practitioner in line with the constitutional provision quoted above. The bench should borrow a leaf from the Supreme Court of the United States and ensure that the police do their jobs within the ambit of the law. In the case of Escobedo v Illinois, the United States Supreme Court had this to say:

"where as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not warned him of his right to remain silent, the accused has been denied the assistance of counsel....and no statement elicited by the police during interrogation may be used against him...."

In 1972 an English High Court presided over by Mackenna J in the case of R v Allen (1972) Crim. LR 163, exercised his discretion to exclude evidence of statements made by the accused person after the police had refused him access to a solicitor. The exercise of this discretion was made pursuant to the Judges Rules and the accompanying Administrative Directions, which had provided for private consultation with a solicitor and the right to speak with one on phone during investigation.

In the case of Barmo v State (2000) 1 NWLR (Part 641) 424 at 433-434, the Court of Appeal established four criteria for the admissibility of an unchallenged confessional statement. One of them is that the statement should conform to the Judges Rules requirement that the statement should be confirmed in the presence of a superior police officer. With due respect, one fails to see how this will aid the case of an accused person who had been tortured by the police into volunteering a confessional statement since the confirming authority as it were, is part of the very establishment that extracted the statement under questionable circumstances. One would have thought that a requirement that establishes that the confessional statement was made after consultation with a legal practitioner would have been appropriate. The accused person may probably be too indigent to hire a lawyer to defend him in court and may therefore, not have the opportunity to effectively challenge the voluntary statement.

I am not unmindful of the fact that section 35(2) of the Constitution referred above provides for " ...consultation with a legal practitioner or other person of his choice". It is respectfully submitted that the election of an accused person in custody to call a relative or a friend before consulting a lawyer should not operate to deny him the right to counsel. We live in a society where the majority of the people are not only illiterate but are unaware of their rights. Even where they are aware, they may not be in the right frame of mind upon arrest, to think of calling a lawyer. Most people in our society do not have lawyers on retainership basis and a lawyer should want to be sure that his retainer is going to be paid before accepting a brief. In most cases, it is the relatives of the accused persons that arrange for legal representation for them. One hopes that the above state of affairs should be taken into consideration when the Constitution is going to be amended or a new one is going to be framed- whichever one comes first.

Mr. Onuoha is a Legal Practitioner with Sofunde, Osakwe, Ogundipe & Belgore, Lagos.