Powers of arrest

“our heroes are those who risk their lives every day to protect our country and make it a better place – police, firefighters

and members of our armed forces. “Law enforcement officers are never ‘off duty.’ They are

dedicated public servants who are sworn to protect public safety at any time and place that the peace is threatened.

They need all the help that they can get.

Introduction

• Hierarchy of laws

• The underpinning principles of our constitutional democracy

– Separation of Powers – Legislature/ Executive/ Judiciary

– Rule of law

– Parliamentary Sovereignty

• No power without a law

The constitution – Section 5

• Section 5(1) of the Constitution provides (that a law may authorise) that a person be deprived of his liberty (arrest /apprehend) as may be prescribed by law:

• (e) upon reasonable suspicion of his having committed, or

being about to commit, a criminal offence; • (j) upon reasonable suspicion of his being likely to commit

breaches of the peace …

Purpose of an arrest

• The Rule – Liberty

• The exception – Deprivation of Liberty - Arrest – executive discretion- not mechanically/automatically

– Legal/Lawful

– Necessary

– Executed in a reasonable manner

• Purpose of Arrest

– to prevent a person from committing an offence (preventative)

– to enable an investigation to be carried out (as a necessary measure for enquiries)

– to present a person before a court in relation criminal charges.

– protective

Distinction between Suspect and accused

• Section 10 makes it clear that is applies only to a person charged with an offence that is an accused party and not to a suspect as is the case under a provisional information (State v Bundhun 2006 SCJ 254)

• A distinction is made between two stages:

– where police is investigating, when interrogation is warranted and

– that after the accused has been charged with an offence, when interrogation should not normally be continued such as to allow the accused to prepare his defence in relation to the offence charged or for which he has been informed he may be prosecuted.

– In case of breach of the constitutional rule of not informing the suspect of right to counsel - is the defence statement admissible?

Right to counsel

• The CCA in Wadud v The State [1999 SCJ 187] stated that it was not an absolute right despite the fact that Police had a legal obligation to inform an accused party of his right to counsel.

• A balancing exercise had to be carried out and this is what had been stated:- “It is not correct to say, that the constitutional right of a detainee to be informed of his right to consult a lawyer is absolute, even if the Police are admittedly under a legal obligation to inform him of his right to counsel – vide State v Coowar [1997 MR 123].

• being excluded. But the fact that there has been a breach of a constitutional right was a cogent factor militating in favour of the exclusion of the confession.

• As explained by the Judicial Committee of the Privy Council (per Lord Steyn) in Mohammed (Allie) v The State (The Times, Dec 10, 1998) - “A breach of a defendant’s constitutional right to a fair trial would inevitably result in the conviction being quashed. By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, was a somewhat lesser right and potential breaches could vary greatly in gravity. In such a case not every breach would result in a confession

Powers of arrest - constitution • Section 5(1) of the Constitution provides (that a law may authorise) that a person be

deprived of his liberty (arrest /apprehend) as may be prescribed by law:

• (e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;

• (j) upon reasonable suspicion of his being likely to commit breaches of the peace

Reasonable suspicion

• Whether or not an arrest was lawful depended upon the answers to three connected questions. Those questions were:

• "1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind. (subjective)

• 2. Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the Judge if necessary on the facts found by a jury. (objective)

• 3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has it been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 ". (reasonable manner)

• The subjective element (Mere suspicion) – Mere suspicion ‘is a hunch or instinct which cannot be explained or

justified to an objective observer’ (Archbold:Criminal Pleading, Evidence and Practice (43 Edn) (1988) page 1195) and in its ordinary meaning is a state of conjecture or surmise where proof is lacking; "I suspect but I cannot prove."

• The Objective element (Reasonable suspicion) • ‘[a] “reasonable” suspicion means something more than a mere

suspicion…’ as it engages the reasonable possibility of crime.

• Reasonable suspicion should be based on objectively discernible facts, which can then be subjected to independent rigorous judicial assessment/scrutiny.

‘[r]easonable suspicion must be assessed against the totality of the circumstances…,[that is against] a constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This assessment ‘must be fact-based, flexible and grounded in common sense and practical, everyday experience and cannot be assessed in isolation.’

• The constellation of factors ought to include both favourable and unfavourable factors in the course of arriving at any conclusion regarding reasonable suspicion and ‘[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable’ Therefore, ‘exculpatory, neutral or equivocal information’ cannot be disregarded when assessing a constellation of factors.

• The objective facts must be indicative of the possibility of criminal behaviour and there should be a ‘nexus between the criminal conduct that is suspected and the investigative technique employed’ that is, this nexus arises by way of a constellation of facts that reasonably supports the suspicion of guilt.

• Reasonable suspicion can never be supported on the basis of personal factors alone. For example, a person’s colour, age, hairstyle or manner of dress, or the fact that he is known to have a previous conviction for possession of an unlawful article, cannot be used alone or in combination with each other as the sole basis on which to search that person. Nor may it be founded on the basis of stereotyped images of certain persons or groups as more likely to be committing offences.

• Should the Court be faced with a motion that an arrest was unlawful in as much as there was no reasonable suspicion, evidence will be adduced viva voce by the enquiring officer. However, hunches or intuition grounded in an officer’s experience will NOT suffice or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard’

• Even if an arrest is within the powers of the police, it may still become unlawful where there is an improper or unreasonable exercise of that power in the “Wednesbury” sense and which MAY give rise to an action for damages in tort.

• Lord Greene:

– For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must:

• call his own attention to the matters which he is bound to consider.

• exclude from his consideration matters which are irrelevant to what he has to consider.

– If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably.’

– Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.’ and ‘The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account

•

• ‘there may be something so absurd that no sensible person could ever dream that it

lay within the powers of the authority’

• ‘It may still be possible to say that, although the local authority have kept within

the four corners of the matter which they ought to consider, they have nevertheless

come to a conclusion so unreasonable that no reasonable authority could ever have

come to it. In such a case, again I think the court can interfere.’

• Therefore reasonable suspicion is a necessary ingredient to a lawful arrest.

• For the arrest to be lawful not only is there a need for reasonable suspicion but section 5 provides that the power to arrest should be prescribed by law.

• Sections of the law which allow an arrest, albeit based on reasonable suspicion, by a police officer:

• Section 9(3) District and Intermediate Courts (Criminal Jurisdiction) Act arrest is done by actual touching of the body

• Arrest by a Private Person

Section 16 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that:

• a private person who sees a crime committed or attempted to be committed or a dangerous wound given, may immediately, or on fresh pursuit made, without warrant, arrest the offender.

• Section 17 of the District and Intermediate Courts (Criminal Jurisdiction) Act:

• the owner of a property, or his servant or any person authorized by him, can arrest any person found stealing same. Section 18(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act is to the effect that any person to whom property is offered and who has any reasonable cause to suspect that same has been stolen or otherwise obtained unlawfully, he may arrest the party offering same.

• Section 20 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that:

• a private person who apprehends any other person without a warrant shall, prior to the arrest, notify to the party the cause for which he arrests, and shall require him to submit, except where the party is in the actual commission of any offence, or where fresh pursuit is made after any such party who, being disturbed, makes his escape.

• Section 21 of the Act is inter alia to the effect that a private person, who arrests another, shall deliver him within the hands of a police officer.

• Section 30 (2) of the Criminal Code (Supplementary) Act provides that a private person may arrest a rogue and vagabond but shall forthwith deliver him to a police officer.

• Arrest without Warrant by a Police Officer

• Section 9(1)(c) of the Police Act, it is the duty of the Police Force

– to take all lawful measures (as provided by law) for apprehending persons who have committed, or who are reasonably suspected of having committed offences.

• Section 22 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that

– any police officer may arrest a party without warrant, in all cases where a private person may so arrest, and also on a reasonable charge made of a crime committed or of dangerous wounds inflicted by the party arrested.

• A police officer may, by virtue of section 30(1) of the Criminal Code (Supplementary) Act

• arrest any person found to be an idle and disorderly person or rogue and vagabond.

• Section 12 of the Police Act provides

– that a police officer may without warrant arrest any person who commits an offence within his view and whose name and address cannot be immediately ascertained; any person so arrested may be detained until his identity has been established.

• Section 26 of the District and Intermediate Courts (Criminal Jurisdiction) Act

• a police officer may apprehend any person who assaults him while he is in the execution of his

duty.

• According to section 23(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act,

• any police officer, not below the rank of Assistant Superintendent, who has reasonable ground to suspect that any person has the intention of committing a breach of the peace against any particular person or against any person unknown, or is likely to commit any act which may lead to a breach of the peace or threaten public safety or public order, may cause that person to be arrested.

• Section 25 of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that

• a police officer may without warrant between sunset and sunrise arrest any person whom he has just cause to suspect of having committed or of intending to commit a crime, or any idle or disorderly person whom he may find disturbing or being about to disturb the public peace, or lying or loitering in a public place or street, or any yard or other place, and not being able to give a satisfactory account of himself.

• Any police, forest or customs officer may, by virtue of section 46 of the Dangerous Drugs Act, without warrant arrest any person who has committed or attempted to commit, or is reasonably suspected by such officer of having committed or attempted to commit an offence under that Act, where he has reasonable grounds for believing that person will abscond unless arrested or where the names and address of that person are unknown and cannot be ascertained.

• • Other specific provisions conferring on police officers the power to

arrest without warrant, such as under • section 13(2) of the Protection from Domestic Violence Act, • section 41(3) Firearms Act 2006, • section 133(3) and 134(1) of the Road Traffic Act

Arrestable offence

• An arrestable offence is one which is punishable other wise than by a fine