An Examination of the Demerits of the Plea of Allocutus: Nigeria in Context.

Introduction

Upon the trial and subsequent conviction of an accused person in every criminal trial, the legal practitioner representing the accused person may rise to solicit for a reduction in the number of years of punishment meted on the accused by the trial Judge. This plea usually made by the lawyer of the accused person is legally referred to as the “Plea of Allocutus”.

This article examines the meaning of the plea of Allocutus, when this plea can be raised in the court and the demerits of this plea with Nigeria in context.

Meaning of an Allocutus.

The plea of Allocutus is one that has enjoyed a judicial definition in the authority of Lucky v. The State (2016) LPELR 40541 where Muhammad JSC in his wisdom opined that;

“An Allocutus is a plea for the mitigation of the punishment rightly deserved by the appellant for the offence with which he was tried and convicted accordingly.”

Allocutus has been further defined by Wikipedia to mean a formal appeal made to the court by the defendant who has been found guilty prior to being sentenced.

Finally, in simple and clear terms, an Allocutus is a plea that allows the defendant to explain why the sentence should be lenient and why the punishment should be mitigated.

When can a Plea of Allocutus be raised?

Before delving to address the above question, it should be noted rightly that a plea of Allocutus is raised only in criminal proceedings and trials. That is to say that this plea cannot be raised in civil cases or proceedings.

Worthy of note also is the fact that this plea is raised usually by the presiding judge, the registrar or the lawyer representing the accused and this plea is being made by the lawyer defending the accused person.

On when this plea can be raised, it should be noted that the plea of Allocutus can only be raised when the presiding Judge has passed judgment on the accused person.

When this happens, the lawyer defending the accused may rise to solicit before the court, stating why the court should cause a reduction in the punishment meted out on the accused and also why the law should not be strictly applied on the accused.

Pertinent to note is the fact that this plea is not a fundamental right, but a plea that can be granted only subject to the court’s discretion. This position has been judicially upheld in the case of Chidi Edwin v. The State (2019) LPELR SC63/2015 where the court held that an Allocutus is not a fundamental right.

Demerits of the Plea of Allocutus (Nigeria in context).

I have stated out three demerits of this plea and they are as follows;

1. The plea of Allocutus takes away the purpose and aim of criminal law.  The primary and sole aim of criminal law has overtime been to deter, prevent, hinder and punish criminal offenders. This has been made manifest in the various theories of punishments which have been developed in time past such as:

• DETERRENCE THEORY: A theory of punishment which operates to prevent or stop offenders from further commission of crimes. For example, whilst a criminal is in prison, he will be prevented from committing further crimes, even when he is out of prison or another punishment.
• INCAPACITATION THEORY: This theory seeks to disable the criminal from further commission of crime through meting out of capital punishments and long terms of imprisonment especially life imprisonment.
• RETRIBUTION THEORY: This theory imposes punishment in order to relieve the indignant feelings of the public or it could be imposed to mark the level of revulsion with which the public regards the crime.

It should be noted that the plea of Allocutus negates these theories and aims of punishment as the Judge if compelled by this plea usually proceeds to carry out a reduction in the number of years of the sentence the accused ought to serve.

The theory of deterrence, incapacitation and retribution cannot be said to have taken its course when an offender is given a prison term that is radically different from what the law has contemplated. It may further occasion further injury on the accused especially in cases and scenarios where the justice he seeks is short-changed.

2. An Allocutus, when granted brings about a negation of laws made by the legislature by the judiciary.

It has been noted that this plea operates to reduce the sentenced years of an accused person if successfully pleaded. This brings about a disregard for the laws made by the legislature by the court which is a judicial arm.

This happens where an accused who for instance has been found guilty and convicted for murder, given the plea of Allocutus, has his punishment reduced from death to perhaps 24 years imprisonment.

Where this happens, it becomes evident that there is no compliance on the side of the courts with regards to the law made by the legislature, bearing in mind the fact that the duty of the court is solely to interpret the law and not disregard same.

3. An Allocutus bestows gargantuan discretionary powers on the Judge.

It has been noted preliminarily that the plea of Allocutus is one that is granted strictly at the court or Judge’s discretion, as well as the extent to which he will act based on this plea, is also at his discretion.

This points clearly to the fact that with the existence of this plea, justice is almost left in the hands of the presiding judge of a criminal matter as he can be based on this plea radically reduce the number of years of sentence an accused ought to face thereby circumventing justice and also disabling the theories of punishment.

Furthermore, with this plea in existence, the judge may act with every sense of bias and ill will as the plea falls totally at his discretion.

Conclusion.

Conclusively, the plea of Allocutus is one that has had an extent of the practice in Nigeria as lawyers in most cases leverage on this plea to save their clients from serving the stipulated jail term.

It is my recommendation that given the fact that the demerits of this plea outweigh its merits, it should be made inapplicable and expunged in our courts in order to avoid the abuse of it.

Author.

Oringo Bamidele Gabriel is a Law student at the University of Calabar. He is a legal researcher and writer who currently serves as the Director of Research, Roots Associates, a student Chamber in the University of Calabar. He is also an officer in The Ministry of Justice, Students’ Union Government, University of Calabar and has an interest in Entertainment Law, Environmental Law, Criminal Law, Intellectual Property, etc.

Oringo Bamidele Gabriel can be reached via bamideleoringo@gmail.com