A person may only be arrested when:
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:
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).
Yes. There are instances also where an arrest initially secured lawfully may become unlawful in the long run. They include:
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:
If the arresting officer falls short of any of these conditions, for example:
You can sue for unlawful arrest.
You can therefore sue for the following:
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.
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.
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:
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.
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.
In order to strongly prove that your arrest was unlawful, you should consider obtaining the following evidence:
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.