Arrest

An arrest is a restraint on the liberty of a person under due process of law. Police or law enforcement officials will have the power to arrest under certain circumstances. In, some jurisdictions, members of the public can arrest other people in certain circumstances.

For an arrest to be lawful, there must be the power of arrest AND the arrest must be carried out according to the law.

Arrest is usually the first step in the criminal justice process. The process will usually contain the steps below:

Following arrest, a person may be detained at a police station and questioned.

If the police deem that there are grounds to prosecute the arrested person, they will “charge” the person with the suspected crime. In some jurisdictions the police do not have the power to charge (this is done by courts or prosecutors).

Focus Point: What Is a Charge?

A charge is a formal allegation that an accused has committed a crime which generally initiates criminal proceedings.

Once a person is charged then the formal court procedure will commence through a trial. The police may continue their investigation and seek evidence etc.

• During the preparation stage, there may be various hearings before a judge on procedural, evidential and bail issues.
• During this process, the accused could either be held in pre-trial detention or released on bail. For more information on this part of the process, see the A4J Detention Guide.

In every system, the law gives the police certain powers of arrest. These powers should be exercised to protect the public and investigate criminal activity.

However, issues arise when police exercise their powers of arrest unlawfully or in breach of human rights. Common problems in the context of arrest include police:

• Arresting people without evidence or reasonable suspicion that they committed a crime;
• Arresting people without following fair procedures;
• Unfairly targeting an ethnic minority or particular group;
• Arresting people for their political views or because they have peacefully protested; and
• Using excessive force against people during the process of arrest.

Key Resource: Trial International

If you want to find out more about the concept of arbitrary and unlawful arrest, go to Trial International’s website. They provide detailed information on the international standards and current events relating to arbitrary arrest and detention.

Yes. There are laws and regulations that govern the power of arrest. These laws put limits on the exercise of the  powers.

• There must be a reason for the arrest. This means the police officer must have grounds to suspect that a person has committed a particular crime or must have a warrant for an individual’s arrest.

There are also laws that entitle individuals to certain rights when the police are exercising their powers of arrest.

• For example, in every country except UAE, Saudi Arabia, Brunei and Myanmar, the police have to tell people why they are being arrested.

When the police act outside their legal powers of arrest and/or violate someone’s rights through an arrest, the arrest could be unlawful and/or arbitrary.

If you believe that an unlawful or arbitrary arrest has taken place, it may be possible to take legal action to challenge the arrest.

This Guide will:

• Set out the legal framework and your potential rights in relation to arrest under international and national law;
• Outline what options you may have to take legal action to challenge an arrest and enforce your rights; and
• Provide practical tips on how such action can be taken effectively.

This Guide is general in scope. It aims to give you an overview of your rights and what options you have to enforce them in the context of arrest. This guide refers to international law and examples of national laws and legal systems in various countries. It therefore gives you general tips on how you can take legal action.

It is important to remember that every legal system is different and changes over time. If you want to enforce your rights, you must check what the laws and procedures are in your country. It will also be important for you to try and get legal advice from a lawyer.

Action4Justice would like to thank the following individuals and organisations for their contributions to the A4J Arrest Guide:

• The pro-bono team at Baker McKenzie;
• Oludayo Fagbemi and Gaye Sowe of the Institute of Human Rights and Development in Africa (IHRDA); and
• Stephen McNamara of the Tharthi Myay Foundation (Myanmar).

If you would like to contribute to A4J materials in the future, contact us.