The law on arrest without warrant

Reuben Mukavhi – Legal Corner

The law permits the police to arrest a person without first obtaining a court order instructing/allowing them to arrest that person. This is what is called “arrest without warrant”, and is an important part of our criminal procedure. It enables the police to effectively and efficiently fight crime by promptly arresting those suspected of having committed crimes or who are about to commit crimes.

The police, however, could also abuse this procedure. The law thus has safeguards to prevent the abuse of the arrest without warrant procedure.

As the gatekeepers of criminal justice, the police need to be afforded some level of discretionary powers in regards arresting suspected criminals.

The Constitution guarantees the right to liberty for every citizen, but a person can lawfully be deprived of liberty upon reasonable suspicion that he or she has committed or is about to commit a criminal offence.

This is where the Constitution gives police the discretion to decide whether someone should be deprived of their liberty.

To make it difficult for the police to abuse their arresting powers, the law provides a number of requirements that the police must satisfy in respect of any arrest.

Firstly, for an arrest to be lawful, the arresting police officer must himself/herself have a reasonable suspicion that the person has committed or is about to commit a criminal offence. In other words, there should be some facts/information upon which a reasonable person might suspect that the person concerned has committed or is about to commit a criminal offence, and those facts/information must be known to the police arresting officer.

It is not enough for the arresting police officer to say that another police officer is the one who had the facts and instructed him/her to arrest.

The reasonable suspicion must reside in the arresting police officer. What is more, even if the reasonable suspicion exists, the police officer still has to consider whether the arrest is necessary. Some of the factors to be taken into account include the possibility of escape, the prevention of further crime and the obstruction of police enquiries.

There are quite a number of cases where the superior courts have ruled arrests to have been unlawful where there was no reasonable suspicion that the person had committed or was about to commit a crime.

Another safeguard is the requirement that the arresting police officer should inform the arrested person as soon as reasonably practicable and in detail of the reasons for his or her arrest and detention. Such person is also entitled to engage a legal practitioner to represent him or her and to hold communications with this legal practitioner. The arrested person must be permitted to see his or her lawyer immediately. The police officer knows that the arrested person or their lawyer will need to know the reasons for the arrest. This forces the police officer to think before making an arrest.

A further safeguard comes in the requirement that any arrested person must either be released or be taken to court within 48 hours of the arrest.

Taking someone to court entails preparing a docket or a request for remand that shows that there is a reason to suspect that the arrested person might have committed a crime. This again forces the police officer to seriously consider the circumstances before making an arrest.

If the police officer arrests someone where there are no circumstances indicating a reasonable suspicion that the person might have committed a crime, the arrest will be unlawful. If the police officer arrests someone when it was not necessary to do so, the arrest will be unlawful.

If the police officer does not inform the arrested person in detail of the reasons for the arrest, the arrest will be unlawful. Once a competent court declares an arrest unlawful, there are consequences that might follow for the police, including civil damages against the arresting police officer and/or the Ministry of Home Affairs.

Any person who is unlawfully arrested is entitled to compensation from the person who arrested or detained him or her or the authority on whose behalf or in the course of whose employment the arresting person operated.

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