Understanding the Law
July 19, 2013


What is an arrest?

The Online dictionary defines an arrest as a seizure or forcible restraint; an exercise of the power to deprive a person of his liberty; the taking into custody of a person by lawful authority.

Essentially, it is the apprehension of a person, which deprives that person of his or her freedom. It means taking a person into custody, under the authority of the law, to be held or detained to answer criminal charges or to prevent the commission of an offence.{{more}}

Power of arrest

The police have the power to make an arrest, once a crime has been committed; a citizen can also make an arrest, but only if a crime is committed. Police have special powers to arrest a person if they have a reasonable suspicion that a crime is about to be committed or where a person is in the act of committing a crime. In other circumstances, the police need to have a warrant to carry out an arrest. A magistrate must sign this warrant to make it legal. A warrantless arrest is illegal. It is not advisable to resist an arrest, as the police could also add the charge of resisting arrest. Where a person is falsely arrested, that person can bring an action against the police for false arrest or false imprisonment.

How an arrest is made

An arrest is made when the police touch or put their hands on the person who is to be arrested (the arrestee). It could also be made by any other act indicating the intention to take a person into custody, once the arrestee is under the belief that he is not free to go. It may involve putting handcuffs on the arrestee, especially when he or she is violent. Where detention follows, a person cannot be detained for more than 48 hours without being charged.

Informed about rights

Persons who are arrested must be informed that they are under arrest and the grounds for the arrest at the time of the arrest or as soon as practicable after the arrest, otherwise the arrest is unlawful. Persons being arrested do not have to say anything and must be advised about this by the police when the arrest is made. This is to prevent the arrestee from making any incriminating statement that could be used against him in the trial.

The arrestee must also be informed of his right to an attorney. In the US, this information is known widely as the Miranda Warnings, after the case of Miranda v Arizona. 384 US 436 (1966). In that case, the Supreme Court held that admission of an illicit incriminating statement by a suspect without him being informed of his rights was against the Fourth Amendment right. It means that the information extracted cannot be used against the person in a criminal matter. Police are advised to give the warnings to any person who is arrested.

Universal rights

The Universal Declaration of Human Rights states that no one shall be subjected to arbitrary arrest, detention or exile. Our laws also protect persons from the same.

Other Arrests

Where a person who has a duty to attend court fails to do so, the judge could order a bench warrant for the arrest of that person to compel attendance. A judgment debtor could be arrested and brought before the Civil Court to answer a committal order. In a penal notice, the person is informed of the consequences of failure to comply with the terms of the order.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com