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Arrest in our laws


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”.
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 a crime.

Power of arrest

A police officer has special powers to arrest a person if there is reasonable suspicion to believe that a crime is about to be committed, or where a person is in the act of committing a crime at a public place, or a crime is committed. The police may detain a person before an arrest if there is probable cause for the arrest.
In other circumstances a police need to have a warrant to carry out an arrest, as in the case of an arrest on private property. A neutral detached magistrate must sign this warrant to make it legal and there must be probable cause. A warrantless arrest in a person’s house is illegal, unless there is a hot pursuit (the police is chasing and suspect runs into his house). It is not advisable to resist an arrest, as the police could 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. A citizen can make an arrest, but only if a crime is committed.

How an arrest is made

An arrest is made when the police touch or put his 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 handcuff on the arrestee, especially when he 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 USA 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 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 warnings to any person who is arrested.
The Universal Declaration of human rights states that no one shall be subject to arbitrary arrest, detention or exile. Our laws are in sync with this declaration.

Other arrest

Where a person who has a duty to attend court fails to do so, the judge can 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. If a penal order is attached to an order a person could be arrested for disobeying the order of the court.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: