Most individuals tend to believe that they will never be faced with the prospect of arrest as they are law abiding citizens. Whilst this may be the case, it is sensible to always be well-informed of your rights in the event of an arrest and what you may or may not do so that you can enforce your rights in the event of an arrest.
How may one be arrested?
A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.
When approached by a police officer, one should remain calm. Do not flee or allow your first response to be an aggressive one. Offer your co-operation to the officer, do not resist arrest and never offer to pay a bribe. Should arrest be resisted, then reasonable force may be used by the officer to affect the arrest.
Your rights upon arrest
You have the right to be informed of the charges on which you are being arrested. Most importantly you have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against you in court.
You may not be compelled to make any confession or admission that could be used in evidence against you. A person further has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.
Once arrested you are required to tell the police your home address. A police officer may not request any further information from you including in respect of your activities or organizations you are involved with.
Your rights upon detention
After an arrest you will, more often than not, be detained at a police station. In detention you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search. The police have the right to take your fingerprints and take photographs.
A person has the right to:
- Be informed promptly of the reason for being detained.
- Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
- Challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.
- Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
- Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counselor, and chosen medical practitioner.
- Be presumed innocent until proven guilty.
The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
Contrary to popular belief, a person does not have the right to immediately make a phone call or see a lawyer. You have the right to be detained in conditions that are consistent with human dignity and to communicate with the abovementioned people.
Conditions such as unsafe holding cells are not in line with the right to be kept in conditions that are consistent with human dignity.
Police bail and warning
For minor offences ’police bail’ can be granted or the police may release you on a warning. In the case of police bail the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail. After payment of this amount the arrested person may be released from custody.
There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail. The officer to whom the request for bail is made must apply his/her discretion in a reasonable manner. A refusal to do so may result in a claim for unlawful or wrongful detention as an unreasonable refusal of police bail impinges on your right to freedom of your person.
Your right to recourse
Should the police not adhere to the rights afforded to an arrested or detained person, such person may take legal steps to enforce these rights which could lead to claims for compensation against the state should the person be able to prove that his/her rights were violated.
Importantly, remember your rights upon arrest and seek the assistance of a legal representative as soon as possible following arrest to ensure that your rights are provided and protected.