What is arrest ?
When can an arrest take place ?
What are your rights upon arrest?
What search powers do the police have ?
For how long can a person remain in police custody ?
What is bail ?
When is bail available ?
What factors would the court consider in granting or refusing bail ?
Can the bail be revoked ? |
WHAT IS ARREST ?
Arrest consists of a seizure or touching of a person's body for the purpose of holding or detaining him to answer a criminal charge or preventing the commission of a crimi-nal offence. Words may amount to an arrest depending on the circumstances of the case, i.e., words brought to the person's attention that are intended to communicate to him that he is under compulsion and he thereafter submits to it.
WHEN CAN AN ARREST TAKE PLACE ?
An arrest may be made by a police officer or other persons empowered by law to do so. The police officer effecting the arrest can only do so upon reasonable suspicion of an offence having been committed by the person.
All necessary means may be employed to effect an arrest if a person resists attempts to arrest him. Resisting or obstructing the lawful arrest of a person is an offence.
WHAT ARE YOUR RIGHTS UPON ARREST ?
There is a duty on a police officer to caution a person on arrest and any statement made by the latter without first being cautioned cannot be produced as evidence at his trial. The caution must be administered in the following words or to the like effect:
"It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say whether in answer to a question or not may be given in evidence. "
The arrested person has a fundamental right under the Federal Constitution to be informed as soon as possible, in ordinary language, of the grounds of his arrest unless that can be inferred from the surrounding circumstances or if he makes it impossible for the arrested to inform him. The Federal Constitution also gives the arrested person a right to consult and be defended by a legal practitioner of his choice but he does not, however, have to be informed of the existence of this right.
WHAT SEARCH POWERS DO THE POLICE HAVE ?
Persons having the power to arrest may search any place entered by the person sought to be arrested and may effect an entrance by force if refused entry. An arrested person may be searched and any articles found which are reasonably believed to be evidence of the crime may be detained until his release. Any offensive weapon found on the arrested person may be seized. A person in lawful custody who is unable to give a reasonable account of himself due to incapacity may be searched to ascertain his name and address.
FOR HOW LONG CAN A PERSON REMAIN IN POLICE CUSTODY ?
A police officer who has taken a person into custody must produce him before a magistrate without unnecessary delay. Police detention of the arrested person must not exceed 24 hours (excluding the time taken for the journey from the place of arrest to the Magistrates Court) unless a remand order had earlier been obtained. Any violence used by a police officer to a person in his custody is punishable under the Police Act 1971. Any person who escapes from lawful custody may be pursued and arrested by the person from whose custody he fled.
WHAT IS BAIL ?
Bail means the release of a person from custody or prison upon security given for his appearance in Court on an appointed date or upon an undertaking given by sureties to produce him in Court on such a date. There are four types of bail, namely:
- a personal bond with security;
- a personal bond without security;
- a bond with surety, but without security;
- a bond with surety or sureties and with security;
WHEN IS BAIL AVAILABLE ?
A person accused of a bailable offence e.g. cheating forgery or defamation is entitled by law to appear or be brought to court and released on bail when he is arrested or detained without a warrant by a police officer.
In non-bailable cases, for example, when a person is accused of infanticide, theft or rape, bail is not completely prohibited but rather, is available at the discretion of the Court or police officer in charge of a police district. There is, however, an important limitation on this discretionary power. Bail must be refused if there are reasonable grounds for believing that the accused has been guilty of an offence punishable by death or life imprisonment, but exception may be made for any person under 16 years of age or any woman or any sick or infirmed person accused of such an offence.
Conditions may be imposed by the Court in granting bail (only in respect of a non-bailable offence) such as requiring the accused to surrender his passport. Failure to comply with any required condition may result in the accused being kept in remand until trial.
WHAT FACTORS WOULD THE COURT CONSIDER IN GRANTING OR REFUSING BAIL ?
The discretion of the court on whether to grant/refuse bail hinges primarily on the question of the likelihood of the accused absconding or the likelihood of repetition of the offence with which he is charged while on bail. Factors concerning the accused normally taken into account by the Court include:
· The nature of the offence charged
· The apparent probability of conviction
· The likely sentence
· His family ties and relationship within the community in which he lives.
· His reputation, employment status and monetary conditions
· His prior criminal record
The amount of bond imposed should be sufficient to secure the attendance of the person arrested and must not be excessive.
CAN THE BAIL BE REVOKED ?
An application for bail will be granted if supported by clear evidence that the accused is interfering with the course of justice by tempering witnesses - vague allegations to that effect are insufficient.
(Reproduced with the courtesy of the Bar Council.) |