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What is an unlawful arrest?

A person may only be arrested when:

  1. There is either a PROBABLE CAUSE, or
  2. A WARRANT OF ARREST to apprehend the individual who is suspected to have committed a crime.
  3. The arrest must further be secured following the prescribed procedure. If an arrest is secured outside these parameters, it will be deemed to be unlawful.

An unlawful arrest is therefore the act of arresting someone without proper reason, without a warrant of arrest and without following at prescribed procedure for lawful arrest.

Arresting someone means taking away their right to freedom and for this to be done in order to avoid any lawsuit, the arrest must be done lawfully, implying that there must be a valid reason for the arrest and the procedure for lawful arrest actually followed.  Where the arrest and detention of a person are unlawful and unconstitutional, any subsequent arraignment of that person before a Court of law cannot and would not cure the illegality or unconstitutionality.

Some examples of an unlawful arrest are listed below:

  • Arrest without probable cause
  • Arrest of the wrong person which is known as arrest in lieu, contradicting section 7 of the ACJA which prohibits such arrest.
  • Arrest based on malice or personal gain
  • Arrest made with warrant of arrest obtained with false information given to the judge by a police officer.
  • Arrest made without following the prescribed procedure
  • Arrest made without mentioning the potential arrestee’s rights to them which contradicts Section 6(2) of the ACJA.
  • Arrest made without mentioning the reasons for the suspect’s arrest to them.

In the case of Christie & another v. Leachinsky (1947)1 Al ER 567, the suspect was arrested without being told the reason for his arrest. Even though the officers might lawfully have arrested the suspect for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting, the police officer failed to inform the him the reason for his arrest. The court held the arrest to be unlawful, stating that “Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason behind such restraint.” The only exception is when that person is in the actual commission of the Crime, or escape from the lawful custody as provided under Section 5 of the Criminal Procedure Act and similarly under Section 6 of the Administration of Criminal Justice Act (2015).

1

Can a lawful arrest become unlawful?

Yes. There are instances also where an arrest initially secured lawfully may become unlawful in the long run. They include:

  • If the reasons for keeping the suspect in custody is no longer valid to
  • If after arrest, the suspect is not charged with a particular offense within the required time limit
  • If the police do not follow the rules and procedure in the Police Act and Criminal Evidence Act. For instance, the procedure that a suspect be arraigned before a competent court within a reasonable time, but rather continues to keep him in their custody, the arrest may become an unlawful arrest. For more information on reasonable time, see the A4J Guide on Detention.
2

Can I sue if I am unlawfully arrested?

Yes. You can sue for unlawful arrest. Any violation of a citizen’s guaranteed fundamental right however brief attracts penalty under the law.

 Issues for determination of an unlawful arrest

Claims of wrongful arrest can be hinged on two major issues for determination:

1.Whether or not the police should have believed that the person arrested had committed, is committing, or is likely to commit a criminal offense.

This assumes probable cause before securing a legal arrest. Hence, where a reasonable man would have believed there was probable cause, then the arrest would be deemed lawful; otherwise, the arrest may be deemed unlawful.

2.Whether or not it was necessary to carry out the arrest. This implies if proper investigation could have actually continued to determine who exactly committed the crime in question without arresting the person.

Where proper investigation could have continued without arresting the person, the arrest may be deemed unlawful. It is pertinent to note that carrying out proper investigation or enquiry before securing an arrest is imperative, in order to avoid unnecessary infringements of people’s right to freedom.

To determine if an arrest was unlawful, the court would consider:

  • whether or not the police had reasonable cause to secure the arrest,
  • whether or not securing the arrest was the best option and
  • whether or not the arresting officer followed the prescribed procedure for securing arrest.

If the arresting officer falls short of any of these conditions, for example:

i. There was no valid reason for arresting you

ii. Investigation could have been done without you being arrested,

iii. You were arrested without following the prescribed procedure for lawful arrest,

You can sue for unlawful arrest.

You can therefore sue for the following:

  • Damage to reputation
  • Assault and false imprisonment
  • Malicious prosecution
  • Physical or psychological harm which incurred during or as a result of the wrongful arrest
  • Embarrassment
  • Lost wages and punitive damages

 

What is the effect of pleading guilty to any of the charges arrested for?

It is pertinent to note that where the arrested person pleads guilty to ANY of the charges leveled against him upon his arrest, his subsequent claim for wrongful arrest would not be entertained, and would be dismissed immediately. The plea proves that indeed, there was a probable cause to have arrested the suspect in the first place and that it was the most suitable thing to do at that point.

3

Can I resist arrest?

Resisting arrest means that a person who is to be arrested intentionally obstructs, refuses, evades, or delays a law enforcement officer during the performance of their duty. Any action a person takes that impedes an officer, could mean they resisting arrest.

For instance:

l  Physically struggling with an officer intending to arrest you

l  Running away from officer attempting to arrest you

l  Giving an officer a fake name, address, or any other personal information

l  You are resisting arrest if the arresting officer has to exert force in other to arrest you

 

It is important you let the officers do their job but the troubling question is: “can I resist arrest?”

You can. If you are about to be arrested and you feel your arrest is unlawful, you can resist such an arrest. However, you must follow a process:

  • First, bring the fact that your arrest is wrongful to the attention of the arresting officer.
  • The police may request for evidence to prove that it is wrongful. (that is, proving otherwise the probable cause of the arrest by the police).
  • 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 the burden of proving an unlawful arrest rest on the claimant. That is, if you want to prove that your arrest is unlawful, the burden of proving such rests on you.

Implications of resisting arrest

Resisting arrest should be done following the process above. However, where there is physical resistance, the arresting officer may apply reasonable force. Therefore, resistance should be made reasonably, and 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.

4

What evidence do I need to prove an unlawful arrest?

In order to strongly prove that your arrest was unlawful, you should consider obtaining the following evidence:

  • Your witness statements. You should write down your own part of the story as quick as possible. Try  remember in as much detail, providing the circumstances, including when and where the arrest was made, and the reason the law enforcement officers gave when you were arrested.
  • Police records of the arrest. Police protocols mandate officers to make records of arrests that identifies the officers involved, the reason why the suspect was arrested and the circumstances around their arrest. Getting this early can be valuable if the police try to change their story.
  • The name of the officer conducting the arrest and the police station to which they are attached. This information may be found on their uniform, badge or in the arrest record relating to the arrest, or the police station at which they were detained.
  • Interviews with the relevant law enforcement officers. Once you have been arrested, there will usually be an interview and a record of this interview. Request this record if you have not received it.
  • Witness statements. Were there other people at the scene? If yes, they could serve as witnesses. Ask any person who was a witness to the events to write their recollection of the event as fast as possible.
  • Videos, photos or audio. This could be video, or audio footage taken by yourself, witnesses, CCTV or police ‘body cameras’. If you think there was CCTV or camera footage, you may have to request for them.
  • Any other documentation such as telephone records, messages or notes that were written down at the time of the arrest; and
  • Court documents relating to your arrest.

Getting all this evidence may take time and you may need to go to the scene of the arrest as well to find other witnesses and people who may have observed t the incident. This may be difficult if you’re in detention already. You may need the support of your lawyer, friends and family to help you gather those evidence.

For the meaning of detention, see the A4J guide on detention.

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