Understanding arrests � Part 2
Kgosietsile Ngakaagae | Friday July 14, 2017 17:08
Every policeman who rode a bike was a celebrity. The local boys knew him by name. Fast forward thirty years. Police motorcyclists still ride around with the same air of importance. Well, I am not complaining. The roar of a good engine between one’s feet can project a rider to a near divine experience.
Back to our subject. I said that an approaching policeman almost always signified trouble. Neighbors would rise to get a ringside view of the imminent spectacle. Fortunately, it was almost always known where the police visit would end. Every community boasts readily identifiable members who keep the police service relevant and active. In this installment, I address arrests by warrant.
Ideally, no person should be arrested without a warrant. The sanctity of liberty should be respected by law enforcement and no person should suffer an arbitrary arrest. It is required, therefore, for a police officer making an application for the arrest of a subject, to state on oath - at risk of perjury - that there are reasonable grounds for believing that that person has committed an offence. The warrant must state the offence with specificity. The officer must state, the purpose for which the application is made.
A warrant of arrest is not in and of itself a warrant for the detention of a subject. Warrants are, however, usually phrased in such a manner as to authorise a subject’s detention but only to the extent that it is necessary to bring them before a judicial officer. Almost invariably, warrants are obtained in the absence of the person concerned which is a derogation from the rule of natural justice requiring that a subject be granted a hearing before an adverse decision is taken against them. That is not, in and of itself, wrong. Trouble comes when magistrates fail to require the police to justify the issuance of an arrest warrant under oath and to record the deposition. Almost every warrant I have read claimed to have been issued under oath. It is when one asks for the record of the deposition that they discover that the magistrate told an untruth. Many magistrates falsely represent that they issued arrest warrants on the basis of an oath when they didn’t. Such expose themselves, and the state, to the possibility of civil suits. To do so is to act mala-fide.
A police officer effecting an arrest warrant is obliged to produce it upon demand by the person to be arrested and to permit them to read the same. It is wrongful to say that one will receive an explanation at the police offices. The person arrested must then be brought, as soon as possible, before a police station and before a magistrate on the charge mentioned in the warrant. I have come across instances where the police obtain a warrant on the basis of a particular offence and then proceed to indict on a different one. That is not permissible.
Where a wrong person is arrested, the arresting officer is protected from liability to the extent that they would be protected if they had arrested the right person. A person assisting with an arrest is equally protected. A genuine but mistaken arrest does not, therefore, make anyone liable for damages against the person wrongly arrested.
A warrant must specifically state that it is for the apprehension of the person and that such should be brought before a judicial officer. An arrest, it must be repeated, is not meant to facilitate an investigation. It is meant to secure a person so they can be brought before court. It is for the court, then, to decide whether such person should be further detained in the interest of justice or public safety. At that stage the arrest has been completed and we have moved to it is a bail, not an arrest enquiry.
It is permitted for someone effecting a lawful arrest to break open the doors and windows of the house where the subject of the arrest is suspected to be and to enter and conduct a search. Where an arrest is resisted, the arresting person can use “all means necessary” to effect the arrest. Only reasonable force necessary in the circumstances can be used. I shall. In future, discuss the subject of what constitutes reasonable force. It is a subject on which every police officer should be thoroughly trained in order to minimize conflict between government, society, and law enforcement.
It is lawful for the police to search a subject of an arrest. Whatever is found in the person must be placed in safe custody. Where an arrest is made on a female, and the necessity to search her arises, she can only be searched by another female. Where there is no policewoman to do the search, the police may summon the assistance of a female member of society to assist with searching her. I learnt, during a conversation with a policewoman that they take the liberty to search male suspects because there is, in fact, no legal bar to them doing so. It is to the eternal credit of male suspects that they suffer such violation without complaint.
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