Which steps must be followed for by the police when carrying out an arrest?
A procedure is a set of actions that is the official or accepted way of doing something.
Procedure for lawful arrest therefore means the set of actions that is the official or accepted in order to carry out a lawful arrest. This means that even if there a suspect is rightfully suspected of committing a crime, for an arrest to be made lawfully, it has to be done in accordance with the prescribed procedure.
So even if the Police have a reason to arrest a protester or activist, do they still need to follow a legal procedure when making the arrest? Yes.
This will be discussed in more detail below.
What should I look out for when the police arrest a person?
Make sure to look out for the rights stated in Section 4 of the Criminal Procedure Act and the relevant sections of the Criminal Procedure Law of various States in Nigeria which include:
1.That the protester is not handcuffed or be subjected to unnecessary restraint except by:
order of the court, or
unless there is a reasonable apprehension of violence, or
an attempt to escape, or
unless the restraint is considered necessary for the safety of the person arrested.
2.At the point of arrest the police officer executing a warrant of arrest should inform the suspect to be arrested that there is a warrant for his arrest before making the arrest.
This, unless he has reasonable cause for withholding the information. (For example, on the ground that the suspect is likely to occasion escape, resistance or rescue).
3.At the point of arrest, the person must be informed of his or her rights which include:
- the right to remain silent and refuse to answer questions until the person has consulted with his/her lawyer, relative or friend
4.Within 24 hrs of the arrest be informed in writing and in the language he or she best understands of the facts and the reason for his or her arrest, and:
- be brought before a court within a reasonable time (24-48 hrs, depending on the proximity of the court).
- the right to speak with a lawyer before speaking to the police and to have the lawyer present during questioning now or subsequently.
- If the person cannot afford a lawyer, one should be provided for him or her before questioning if they wish.
- if the person decides to answer questions without a lawyer, he/she still has the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of their own choice..
- the person needs to be informed that anything he/she says may be used against him in the court of law.
- the person is entitled to bail.
- the person has the right against any form of torture or maltreatment.
5.An arrested person must be charged with the offence (s) for which they have been arrested, not a different offence.
6.Within 24 hours after their arrest, an arrested person must be given a written copy of the reasons for which they have been arrested in a language that they understand.
7.An arrested person can only be held at a police cell, a similar facility in a law enforcement agency, or the holding cell of a court. It will be illegal to be detained in a private home, or office.
Where the arrest fails to comply with the provided procedures by law, the arrest would be said to be unlawful.
8. The arrested person must be brought before a court within a reasonable time (24-48 hrs, depending on the proximity of the court).
What happens when an arrested person is brought before a court?
Here, the judge will formally state the charges against the arrested person the first time they enter the courthouse where they either plead guilty or not before they are tried in court.
The judge or magistrate can mandate for the accused person to be remanded in jail or may stipulate bail conditions.
The arrested person can make an application for bail at any point.
Where the arrest fails to comply with the provided procedures by law, the arrest would be said to be unlawful.
Can a lawful arrest become unlawful?
Yes. There are circumstances where an arrest initially secured lawfully may become unlawful:
-if the reasons for keeping the person in custody is no longer valid,
-if after arrest, the person is not arraigned in court within the 24 hours or a maximum of 48 hours if the court is far away from the detention facility, and/or
-if the police do not follow the rules and procedure.
What do I do if I am arrested at a protest or rally? Can I resist arrest?
If you are about to be arrested and you feel your arrest is unlawful, you can do the following:
- Do not attempt to resist arrest or engage in a physical altercation with the police/law enforcement agent. Civilly speak with them.
- Bring the fact that your arrest is wrongful to the attention of the arresting officer.
- The police may request for you to provide some evidence to prove that the arrest is wrongful.
- Provide the requested evidence. For instance, where you were when the incident took place.
- Where evidence provided is sufficient, then the arresting officer can no longer proceed with the arrest.
- If, however, regardless of the proof produced countering the arrest, the arresting officer goes ahead to arrest you, you can share the same proof to your lawyer while in custody.
- Note that if you want to prove that your arrest is unlawful, the burden of proving such rests on you. Video evidence and witnesses can be helpful to prove that your arrest was unlawful.
Implications of resisting arrest: Questioning your arrest should be done following the process above. However, where there is physical resistance, the arresting officer may apply reasonable force. Therefore, if the arresting officer persists in securing your arrest, you should comply with the officer. If indeed the arrest was wrongful, your lawyer can challenge it.