The Process of Arrest- Your Rights And Perils

…Research, Information & Advocacy- International Human Rights Law & The Changing Contours of State Policing- Justice and Fair Trial begin with the Police- The Process of Arrest- Your Rights And Perils- The Police Caution, Right of Silence and the 1984 Torture Convention Examined

BRIEFS & MEMOS

Article 14(2) of the 1992 Ghana Constitution states that “A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice; (3) A person who is arrested, restricted or detained – (a) for the purpose of bringing him before a court in execution of an order of a court; or (b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention; (4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released wither unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.” Art 15 of the Constitution explains that (1) “the dignity of all persons shall be inviolable [that] (2) No person shall, whether or not he is arrested, restricted or retained, be subjected to – (a) torture or other cruel, inhuman or degrading treatment or punishment; (b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.” So, neither the police, the Bureau of the National Investigations (BNI) nor the public asserting our arrest have the law to abuse our civil rights or liberties?

RESEARCH & INFORMATION

What is Arrest? If we arrest a situation, we put it on hold from a further action/movement. The Free Dictionary [2] defines arrest this way- to stop; check: a brake that automatically arrests motion; arrested the growth of the tumor; to seize and hold under the authority of law or capture and hold briefly (the attention, for example); engage. In the criminal justice system, the police employ the word to inform us that we are no longer at ease or at liberty to move- meaning, that one of our civil liberties such the right to freedom of movement, has comes to a temporary halt. Arrest has also been deemed as a signal or a gateway to cell/remand or to prison. The magistrates-court-co-uk [3] explains for example, that “When the police need to make an arrest, there are specific arrest procedures that need to be followed. Once arrested, the police take the suspect under the care and control of the law, which means that the suspect loses certain freedoms like being able to come and go as they please. The arrest procedure does however leave [us] the suspect with certain basic human rights to protect them against unreasonable treatment.”

In our present discussions, the phrase “unreasonable treatment” could be defined as all-forms torture- physical or mental- including but not limited to beating, harassment, inducement, coercion of the will or any act or omissions that seek to degrade the dignity of the suspect. Accordingly, the Ghana’s Criminal Procedure Code, 1960 (Act 30) for example, describes at its Section 3 how arrest ought to be made- stating that “in making an arrest the police officer or other person making the same shall actually touch or confine the person to be arrested, unless there be a submission to the custody by word or action.” But with the presumption that a suspect is not be prejudges as a criminal until s/he is found to be so by a competent court of jurisdiction it is required that s/he must be treated with every dignity s/he is entitled to under the law. To achieve this the Chapter Five of the 1992 Constitution of Ghana set out for example, Fundamental Human Rights and Freedoms provisions in its Articles 12; 13; 14 and 15.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[4], adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 which entered into force on 26 June 1987, in accordance with article 27 (1) and for which the Republic of Ghana, is a signatory(7 September 2000) states at its Article 1 as follows:

“(1) For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

Article 2(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. (2). No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. (3). An order from a superior officer or a public authority may not be invoked as a justification of torture.

The Article 3 of the 1984 international convention has this to add: (1). No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture; (2). For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Accordingly, the Article 4 states: “(1). Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

THE PROCESS OF ARREST

In the UK, as found in other countries there is general police power to stop and search a person without arresting him. This is set out in Police and Criminal Evidence Act 1984 (PACE) ss.1-7. The power can be exercised if a police officer has a “reasonable suspicion” that “a stolen or prohibited article” may be found on the suspected person(s). Although Plowden(2008) explains that arrest is without a definition and will often occur with a constable touching the person, the rule in Christie v Leachinsky (1947) AC 573 (UK) states that arrest is “the beginning of imprisonment” which could also be initiated either by the citizen(where there is an urgent need to avert suspected crime being committed but there is no readily police presence) or through the issuance of an arrest warrant. Arrest warrant is an official document that has been signed by an officer of the court ordering the arrest and detention of a named individual.

The Police Caution on Arrest

Because arrest and detention impose restrictions on our personal liberties, it is incumbent on the police to inform the suspect reasons for his arrest and warn him/her about his/her answers to police questions. In the UK the wording of the Police Caution is set out at PACE Code C para 10 as follows: “You do not have to say anything but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence. Do you understand?”

Kim Evans writes at the Justice-Gap that “fairly straightforward you may think, but what does it actually mean? This is the wording of the caution which must be given to a person suspected of having committed a criminal offence before they are questioned. Failing to do so could mean that any answers given to those questions might be excluded from being used as evidence against that person. As a lawyer advising arrested persons in the police station on a daily basis, explaining what this caution actually means is the most important aspect of my role. I have to find a way of explaining it to the very young, the very elderly, the mentally disordered, persons for whom English is not their first language, and sometimes it’s a very difficult task. Sometimes, it’s impossible…” [5]

Yet, no matter how grievous our crime might be, the arresting police ought to make it clear to us either by words/actions that we are not free to go- simply put, we must almost always be cautioned on arrest. A caution is a warning to a suspect that what they say or do not say may now have legal consequences.
Failure to state facts that are later relied upon in court can have adverse inferences. This strikes the balance between our legal rights to silence and/or civic obligation to give factual answers to police questions that might dilute their subjective “reasonable grounds” to suspect and arrest us of an offence.

According to Plowden [6], “the objective basis for that suspicion must be based on facts- information and /or intelligence which are relevant to the circumstance and can never be supported on the basis of personal factors alone without reliable supporting intelligence… or some specific behaviour by the person concerned.” Thus, reasonable suspicion of the police or for example, the Bureau of National Investigations (BNI), cannot be based on political generalisation or stereotyped images of certain categories of people- person’s race, age or appearance, as more likely to be involved in criminal activity.

Due to what Philip Plowden describes as continuing issues with disproportionate use of stop and search powers on members of minority ethnic groups in the UK, the Code stresses that the action of the police must not be exercised in discriminatory manner. PACE Code A sets out how these powers should be exercised. In the spirit and letter of the law, the powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. The Race Relations Act (Amended) Act 2000 makes it unlawful for police officer to discriminate on the grounds of our race, colour, ethnic origin, nationality or national origins when using their powers of arrest- Code A, para 1.1. The court has held that the use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. The explanatory context here is that the power of arrest must never be used simply because it can be used.

Accordingly, absence of justification for exercising the powers of arrest, as Plowden argues, may lead to challenges should the case proceed to court. It is said that “When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner.” The Police Code G, para 1.2 and 1.3 go on to emphasise that ultimately, it will be a matter for the “operational discretion of individual officers” whether a particular necessity condition is made out. Thus it is suggested that as Code G notes, it is likely that there will be an increase in the number of arguments at court as to whether an arresting police [BNI] officer could have reasonably believed that it was necessary him/her to arrest.

But in Fiak (2005) EWCA Crim 2381, the Court of Appeal held that arrest was a process, not a single event, and that it should not be “artificially compartmentalised” but could be postponed. Here Fiak was seen by the police sitting in the driving seat of a stationary BMW, throwing up into the gutter. When the police spoke to him he smelt of alcohol and was unsteady on his feet. The police suspected that he was drunk in charge of a motor vehicle. Fiak told the police that he was only sitting in the car and had left his house nearby for a few minutes to cool off after a row. On this basis the suspecting police officer told the suspected to wait while she- the officer went to confirm his story. Knowing he was lying, Fiak refused to wait as instructed and tried to force his way into his house. At this point, a struggle ensued and was charged with criminal damage to his police cell. He argued that his original arrest- thus, when he was sitting in his BMW care outside his home, had been unlawful because he had not been arrested by the officer before she went to confirm his story so he was acting lawfully in entering his own home.

This decision is said to be difficult to reconcile with authority- and that it might be better to follow the court’s alternative rationale- namely that the arrest was arguably completed at the point when Fiak was told to wait in his car, even though the word “arrest” was not used. The PACE s.1(2) permits a constable to search any person or vehicle or anything in or on a vehicle for “stolen or prohibited articles”. The list of prohibited article” included: (a) Offensive weapons (b) Bladed instruments (as prohibited by s.139 Criminal Justice Act 1988) (c) Articles made or adapted for use in dishonesty offences (ie. theft burglary, taking a motor vehicle without consent) and (d) Articles made, adopted or intended for use in an offence of criminal damage (eg. Spray paint, etching tool). A caution should be given as soon as there are “reasonable grounds” to suspect a person of an offence: James [1996] Crim L R 650.

Accordingly, the fact that you or Kaasford is known to have for example, previous conviction of stealing cassava or hen, cannot be used alone in/or in combination with each other as the reason for searching you. But there seems to be some limitation here. In the House of Lords ruling in O’Hara v. Chief Constable RUC [1977] Crim LR 432, the Lords held that the test fell in two parts- first, there must be actual suspicion on the part of the arresting officer; secondly, there must be reasonable grounds (judged objectively, rather than subjectively) for that suspicion. [Thus] it was not enough simply to say that the officer was acting on instruction from his superior; he must show “reasonable grounds for suspicion”. Here the arresting officer formed a genuine suspicion as the result of the briefing he had from his superior, and that that suspicion was reasonable. Accordingly, O’Hara, arrested on suspicion of being a terrorist but later released on grounds of lack of evidence, could not win his claim against the police.

But we mention in passing that the Sections 44-47 UK Terrorism Act 2000 bestow on the UK Police a wide ranging power to stop and search any citizen without reasonable suspicion; and the green light ought to be signalled by a senior officer- in this case of assistant chief constable rank or more senior. This legal reasoning was also approved by the European Court of Human Rights as lawful: (see, O’Hara v. United Kingdom, (2002) 34 E.H.R.R. 32. Yet, Art 5(1) of the Human Rights Act 1996 provides that:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so..” Article 6(2) of the European Convention on Human Rights (ECHR) provides that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. “ Admittedly, the Anti Terrorism, Crime and Security Act 2001, puts some bar on the right to bail on foreign nationals arrested on suspicion of some kind of terrorist offence.

SUMMARY NOTES

In this dispatch, we note that as suspect, “No authority has the legal right to coerce/torture you in submission- physically or mentally, to adduce evidence for his/her case. Accordingly, prudent legal practitioners had from the word go, strove to punch holes into, for example, how the police had treated their clients upon arrest or while under their custody. For example, emphasis is put on your health status – if you were to be on medication and the police had refused to abide by what it ought to have done or documented on the custody records- then the lawyer, could hang/pitch his/her future case on them.” So, what next? In our next article, we shall consider issues arising from our arrest and at the police station.

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Researched and Compiled By Asante Fordjour for the ShelterGhana Project @ JusticeGhana Group.

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Bibliography & References

[1] The 1992 Ghana Constitution
[2] “What is Arrest”, http://www.thefreedictionary.com/arrest
[3] The Arrest Procedure, http://magistrates-court.co.uk/the-court-process/arrest-procedures/
[4] Torture Convention (1984), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx
[5] Evans, Kim, “Extreme Caution”, http://thejusticegap.com/2011/12/extreme-caution/
[6] Plowden, Philip(2008-2009)(Practical Text Series) “Criminal Litigation in Practice), North Humbria Law Press

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JusticeGhana