UNLAWFUL ARREST AND DETENTION
Are you a victim of unlawful arrest or detention? or
Are your constitutional rights to freedom, liberty and movement violated?
T J Attorneys Inc is available to address violation of your rights subsequent any unlawful arrest and detention by another purporting to act according to the law.
The courts have over the past warned the law enforcers that “if the object of an arrest, though professedly to bring an arrested person before the court, is really not such, but is to frighten or harass and so induce him to act in a way desired by the arrester, without his appearing in court”, the arrest is unlawful.
In terms of the law, an arrest should preferably be made only after a warrant for the arrest has been obtained. It is only in exceptional circumstances that private individuals, or even the police, are authorised to arrest anyone without the authority of a warrant. Any arrest without a warrant which is not specifically authorised by law, will be unlawful.
Even a police official who executes a warrant for the arrest of a person must exercise proper care in doing so. If he negligently arrests the wrong person, he may, in an action for wrongful arrest, be compelled to pay such person a large amount in damages. The arrestor must inform the arrestee of the reason for his arrest at the time of the arrest or immediately thereafter, or give the arrestee a copy of the warrant.
Permitted arrest and detention without warrant
The law does under certain circumstances permit the members of the police officials to effect arrest without warrant. The following should therefore be tested to ensure that the arrest and detention are in terms of the law, namely
- There should be reasonable suspicion that the arrestee has committed a schedule one offence,
- The arrest must be effected by a police officer; and
- The only possible reason for continued detention should be a reasonable suspicion that the arrestee may attempt to escape lawful custody.
That’ said, in the absence of the warrant and the above mentioned circumstance cannot be proved, the arrest may be deemed wrongful.
Who should proof the lawfulness of the arrest and detention?
The general rule of law is that the onus in criminal cases should always rest on the State. The prosecution must prove every substantive element of the crime as defined in criminal law and which the accused is alleged in the charge sheet/indictment to have perpetrated.
Same approach has been adopted by the civil courts when instituting legal proceedings for unlawful arrest. The state will have to prove on balance of probability the above mentioned elements to satisfy the courts that the arrest was for a good cause and lawful.
What recourse can one get for unlawful arrest and detention?
An action can be instituted for the damages ensuing from false arrest, such as a loss of salary while in prison and / or injury to the reputation / good name of a person that results in a pecuniary loss to the victim. General damages for pain, suffering and loss of amenities of life can also be claimed.
When does Police assault occur?
Many cases of police assault occur during the time of arrest, during questioning or during strikes. Police assault is the intentional use of excessive force, usually physical, but potentially in the form of verbal attacks and psychological intimidation by a Police Officer.
What are my rights if I am a victim of Police assault?
The first thing to do is to endeavour to follow the instructions of the officer/s harassing you. If you resist an arresting officer, it will probably only insight him to become more brutal.
Once you have the opportunity, write down the officer’s name, badge name and number, and car registration number (if applicable). If you have been physically assaulted go to your local doctor as soon possible and have him record in detail the bodily injury you sustained. Take photographs of your injuries to keep as evidence.
If there were any witnesses to the assault take down their complete contact details to ensure that they can testify in your case.
If you have suffered an injury or any damages as a result of police brutality, a claim for damages can be instituted against the police officer/ his department.
What is malicious prosecution?
Malicious prosecution can be defined as the wrongful and intentional assault on the dignity of a person encompassing his good name and privacy. For one to succeed with this claim, a claimant must allege and prove that:
- The defendant set the law in motion (instigated or instituted the proceedings);
- The defendant acted without reasonable and probable cause;
- The defendant acted with malice (or animo injuriandi – the wrongful intention to defame or injure another’s reputation or personality); and
- The prosecution failed.”
The has recently been an alarming on the upraise of civil claims against the Minister of Justice arising from malicious prosecution. the test applicable here is ‘absence of reasonable and probable cause’.
The test contains both a subjective and objective element, meaning there must be both actual belief on the part of the defendant and also that belief is reasonable in the circumstances.
Should you believe that you or your beloved one has been maliciously prosecuted, do not hesitate to inquiry with our offices to check if you have a recourse.