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Letter: Policing 101: Powers of arrest
Published on June 23, 2014 Email To Friend    Print Version

Dear Sir:

Because of discussions I have been involved in with some of my ex-colleague and other members of my community on Facebook and other forums, I have been made aware that there is a deficit of knowledge as it relates to the responsibilities of and other key elements of the operation of the police service, force, department, etc., even among serving policing officers.

It is my desire, therefore, to use my knowledge and understanding of this field to fill this gap in this series entitled Police 101, of which this is my third submission.

Invested within every police officer is the power to take away a person’s freedom or their liberty. Such deprivation of a person of his constitutional rights to go to and from his place of business and/or pleasure at a time he so chooses is called an arrest.

Although the law gives the police the right and the power to arrest any individual or a group of individuals, the police do not have the rights, the power and or the authority to violate anyone’s rights unless; this power cannot be arbitrarily used. To ensure the police are kept within the confines of the law, the police officer is asked to ensure certain conditions are met and he must have some lawful authority before a person’s liberty is taken away.

Under what conditions can a police arrest an individual?

The commission of a criminal act: Before a police officer can arrest an individual, that person must by his own voluntary or involuntary act or omission forfeit his rights to be free. In this case, the person may have committed an offence in the view of the police; misdemeanor or felony.

On suspicion: If the person is suspected of committed an offence for which the commission of such may result in an arrest. In this case someone may have accused the person to be arrested for committing a felony.

   a) If there is enough evidence reasonable believe that an individual or group of individuals are about to commit a felony.

To prevent the commission of a crime: A person can also be arrested if there are reasonable grounds for suspicion.

For safe keeping: If the police have reason to believe that an individual or groups of individuals are in danger. The police have the right to arrest that person and keep him or her in a safe place. This is treading a thin line because every individual has the right to refuse protection from the police.

By the virtue of a warrant: A warrant to arrest an individual must be issued by a court or any other lawful issuing authority -- a justice of the peace, etc. The document must bear the reason for arrest along with the relevant piece of law that sanctions such arrest, the complainant’s name, a stamp declaring the issuing authority as well as the signature of the issuing official.

Although the law does not give the police the authority to arrest a person for committing a misdemeanor, the police have the authority to cause a person to be arrested if such was committed in his view.

As soon as a person is arrested that person is now a prisoner and he becomes the property of the state. On the arrest of any person, the state becomes responsible for supplying all of the needs of the prisoner; which includes but is not limited to: His meals, protections, accommodation, medical and dental needs, etc.

Effecting an arrest

When a police officer is about to arrest a person there are certain procedures he or she must follow to make the arrest legal. If the police do not comply with these conditions the person may not be deemed to be arrested. Although these conditions can be modified depending on the conditions; it is important that the officer complete the critical steps.

In the arrest of an individual the police officer must be true to his oath, without fear and or favour. Each person, regardless of social status, employment, financial status, etc. must be treated the same; unless there is a greater good to be derived from altering the standard arrest procedure. Bearing the forgoing in mind, I will outline the proper procedure below:

When any person who is invested with the authority to take away a person’s liberty, has reason to do so, they must do the following, it may not be in the order in which they are listed here, but it may vary on a case by case basis.

1. You must inform the individual that they are under arrest. Based on the situation you may inform the individual of his arrest after or before hands are laid on the person.

2. You must actually lay hold of the person to be arrested. It is not enough to inform a person that he is being arrested without actually physically taking hold of him and actually taking away the person’s freedom.

3. After or before the person’s freedom or liberty was taken away, the arresting officer is obligated to inform the arrested individual on which authority is he taking away his liberty. It may be by the virtue of one of the powers listed above; by the virtue of an arrest warrant, an allegation made against them by a third party, etc.

4. The arrested person must be made aware of his basic rights, e.g. his right not to talk to the police, his right to a lawyer, etc. No police officer has the right to make any prisoner sign any document against his will while his freedom is taken away.

5. When an individual is arrested, the prisoner must immediately be placed in restraints (handcuffs or other reasonable available restraints) this is to prevent that prisoner from causing harm to himself, those who are executing the arrest, or any other person.

It is of the utmost importance that the police develop an appreciation for the rights of each member of the community. When the police have such an appreciation, the chance of violating the rights of the community diminishes drastically.

Allan H. Palmer
 
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Comments:

EdS:

And then too, the person being arrested must believe that the police is the police, and that the police is not using unreasonable force to execute the arrest; absent such, the person can resist. And in this case resist is not really resisting, but resist to protect oneself. The key here, is that the police must demonstrate that the police is the police.

Allan Palmer:

EDS,

You are absolutely correct, one of the courtesies a police officer or any public officer who have to approached anyone in the line of their duties outside the immediate environment of their place of regular duty. is to introduce themselves, by given name, official or work title (I am the registar of the High Court, Police officer, etc.) and or title it is the smallest of courtesy a public officer can give to those they are expected to interact with outside of their regular station of work.


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