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What Is an Unlawful or Arbitrary Arrest?

For the purpose of this Guide, an unlawful arrest is an arrest that is carried out in breach of the national law where the arrest took place. An arrest is lawful if:

It can be justified in law; and

It is carried out in the proper manner.

The concept of arbitrary arrest is broader. It includes not only unlawful arrests but also  arrests that violate human rights standards. This means that an arbitrary arrest may not be considered  unlawful by courts in your country.

Key Resource: OHCHR Training Manual on Human Rights and Arrest

On Pages 165-171, you can find a detailed explanation about the concepts of unlawful and arbitrary arrest.

1

Arrest without Grounds

Arrest always involves a deprivation of liberty of the person who is being arrested. However, at national law, this deprivation of liberty will be lawful if it is within the scope of police powers of arrest.

Police powers of arrest (i.e. when they are allowed to arrest) will be found in your country’s national law. This will often be in criminal procedure rules or legislation on police conduct.

In general, police will have the power to arrest someone when:


(a) The Police Have a “Warrant”


This is a document issued by a judge or legal official that authorises the police to arrest a specific person for a suspected crime. In this situation, the police are usually under a duty to carry out the arrest.


(b) The Arrest Is for a Lawful Purpose


The police cannot just arrest anyone for any reason. Your arrest must generally be necessary for one of the following purposes:

  • To stop a criminal offence from being committed;
  • To facilitate an investigation into a criminal offence;
  • To prevent injury or harm to that person, another person or property; and
  • To prevent someone escaping during a trial.

When someone is arrest without a warrant in relation to a criminal offence, it is often a requirement that the police have a “reasonable suspicion” or “reasonable grounds to believe” that you have committed, are committing, or are about to commit a criminal offence.

The suspicion that one is involved in a criminal offence must also be reasonable. This means that the suspicion has some factual basis (i.e. the police officer must have some information that leads him/her to believe a crime has or will be committed).

  • When judging reasonableness, ask yourself: Would a neutral third person have a reasonable suspicion if they have the information the police officer had?
  • An example of unreasonableness would be if a police officer arrested someone simple because they think they look like a criminal.

An arrest may also be lawfully justified in the following situations:

  • After you have been convicted by a competent court and are to be sentenced;
  • Where you have not complied with a court order or in order to secure your fulfilment of a legal obligation;
  • Where you are a minor, usually under the age of 18, for your education supervision;
  • To prevent you from spreading infectious diseases;
  • Where you are mentally unwell, an alcohol or drug addict or are begging illegally; or
  • To prevent you from unlawfully entering into a country or with the view to deport or extradite you.

If you are challenging an arrest, it’s important to check what are the police powers of arrest in your country. An arrest could be challenged if it there is no power of arrest or if the proper procedure has not been followed.

Example: The Police Act (Nigeria), s.24 – Power to Arrest Without Warrant

(1) In addition to the powers of arrest without warrant conferred upon a police officer by section 10 of the Criminal Procedure Act, it shall be lawful for any police officer and any person whom he may call to his assistance, to arrest without warrant in the following cases-

(a) any person whom he finds committing any felony, misdemeanour or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanour or breach of the peace;

(b) any person whom any other person charges with having committed a felony or misdemeanour;

(c) any person whom any other person- (i) suspects of having committed a felony or misdemeanour; or (ii) charges with having committed a simple offence, if such other person is willing to accompany the police officer to the police station and to enter into a recognisance to prosecute such charge.

You have a right to be told why you are arrested at the time or arrest or shortly afterwards in every country except UAE, Saudi Arabia, Brunei and Myanmar. If the arresting officer is unable to give a reason for your arrest or claims that they do not need a reason then the arrest is unlawful. It may be the case that you have been arrested without justification.

2

Arrest without Due Process

Even if there are grounds for an arrest, the police have to follow procedural safeguards.

The following are common procedural safeguards that must be respected before, during and after an arrest has been made:

  • Informing the person who is arrested at the time of their arrest of the reasons for their arrest;
  • Informing the person of any charges made against them;
  • Ensuring an arrested person is brought promptly before a judicial authority;
  • A record of the arrest should be made and communicated to the arrested person;
  • Ensuring that information provided is in a language that the person arrested can understand;
  • Ensuring the arrested person gets access to a legal representative; and
  • Informing a family member or friend of the arrest

Example: Bangladesh Constitution, Article 33

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult and be defended by a legal practitioner of his choice”

Key Resource: The UN Principles on Detention and Imprisonment

This provides an overview of the principles of best practice that police should follow during and after making an arrest. This covers and elaborates on many of the procedural safeguards mentioned above.

Although these principles cannot be enforced directly in national courts, there may be similar principles in your national law. The principles could also be used to strengthen your arguments as to what the national laws require or how they should be applied.

The above procedural safeguards are meant to provide checks and balances on police arrest powers. If these aren’t following, they could give those arrested the opportunity to challenge their arrest through legal action.

However, there are countries where there are less procedural safeguards on police powers of arrest.

Example: Myanmar Code of Criminal Procedure

In Myanmar, the police are not under an obligation to inform people of the reasons for arrest. This is also the case in Brunei, Saudi Arabia and the United Arab Emirates.  In Myanmar, you do not have a right to see a lawyer, or to have a family member informed of your arrest. But you must be brought before a court within 24 hours

It’s important to check your country’s law to find out exactly what the procedural safeguards are.

3

Arrest in Violation of Fundamental Rights

If the police act outside of their powers, the first place you should look to see if the police have acted unlawfully are national laws on police powers of arrest (see above). However, even if an arrest is within the scope of national police powers, an arrest may violate your constitutional or human rights.

Reliance on human and constitutional rights when challenging an arrest can be a backstop that is useful in the following circumstances:

  • The arrest was within the scope of police powers and followed the procedural safeguards under national law, but you still have reason to believe they violated your human rights because of the circumstances of the arrest or the way it was carried out;
  • There are no specific laws meaningfully limiting police powers of arrest, so you have to rely on human or constitutional rights to hold the police accountable.

A key point to remember is that while all individuals have rights and police powers of arrest inevitably restrict these rights as they involve a deprivation of liberty, individual rights are always balanced against the state’s need to maintain law and order. For this reason, an arrest will not always amount to a violation of your rights.

This section will now outline the main rights that are relevant and when they may be violated. The examples given in this section are common, but you must find out if the rights below are protected and enforceable in your country.


(a) The Right to Liberty


The right to liberty is set out in a number of international human rights treaties.

Example: Article 9 of the International Covenant on Civil and Political Rights

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

“(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

This is reflected in the national constitutions of many countries:

Example: Indian Constitution, Article 21

“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

An arrest inevitably results in a deprivation of someone’s liberty or freedom. However, the right to liberty is not absolute so not every deprivation of liberty means there’s a violation of the right to liberty. Whether your right to liberty has been violated depends on the circumstances of your case but below are some guiding principles.

Broadly speaking, an arrest may violate the right to liberty in the following scenarios:

 

(i) The arrest is not in accordance with law

There will be a violation when you have been arrested in breach of national laws regarding the scope of police powers and procedural safeguards. In other words, an arrest is carried out in breach of the laws outlined above, it will also be a violation of the right to liberty. For example, arbitrary arrest and detention may occur where you have not been read your rights or told the grounds upon which you are arrested.

Example: Castillo-Paez v Peru (Inter-American Court of Human Rights)

The IACtHR found that an arrest that was undertaken without a written order issued by a judge was a violation of the right to liberty, among many other grave human rights violations in that case.

 

(ii) The arrest is unreasonable, unforeseeable, lacking in proportionality or discriminatory

These are broader standards of fairness that could be breached in a number of different cases.

  • The exercise of police powers could be unreasonable where it is random, based on or influenced by personal feelings, tastes or opinions.
  • Foreseeability means that even if there is a national law on arrest powers or procedures, this must be clear and accessible so people can know when police will have a legal power to arrest them.
  • In order to decide whether something is proportionate, a judge will weigh the balance between the legitimate aims of the state on one hand (e.g. public safety) and the impact on the individual’s rights on the other. For example, if an individual suffered significant harm during an arrest but the police had very little evidence and/or the arrest related to minor misconduct, the arrest could be disproportionate.
  • If someone is arrested because of their race or religion, the arrest would be discriminatory.

Example: Organisation Contre la Torture and Others v Rwanda

In this case, the African Commission on Human and People’s Rights ruled that the arrest and detention of ethnic tutsis solely on the basis of their ethnicity was a grave violation of the right to liberty and security.


(b) Other Rights


You also have other rights that influence when and how one can be arrested. For example:

  • Right to life: This is engaged if the police threaten to or kill someone during an arrest.
  • Right to privacy: This is engaged if the police search your person or your property.
  • Right to a fair trial: Once you are arrested, you must receive a fair trial. For more information see the “A4J Fair Trial Guide”.
  • Freedom of expression and assembly: If the police arrest you because of a political opinion you have expressed, because you are part of a political party or group, or because you have taken part in a protest, these rights could be violated.

Key Resource:  Article 19 Principles on the Right to Protest

Article 19 is an organisation that specialises in protecting freedom of expression and the right to protest. The linked resource provides an outline on the human rights law framework on protesting and when one’s right to protest can be restricted.

If you or someone in your community has been unlawfully or arbitrarily arrested, this Guide could help you use legal action to get justice.

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