Word On The Block - by the Namibian Police: Understanding arrest and arrested person Part 2
Manner of effecting an arrest
Arrest with a warrant: An arrest should be done by any peace officer after a warrant for the arrest has been issued by a magistrate in terms of section 43 of the Criminal Procedure Act, 1977.
Arrest without a warrant: Is only permitted in exceptional circumstances where a police official is specifically authorized by an Act of Parliament (for example, section 40 and 41 of the Criminal Procedure Act, 1977) to arrest a person without the authority of a warrant. Any arrest without a warrant, which is not specifically authorized by law, will be unlawful.
Section 40(2) of the Criminal Procedure Act, 1977, determines that if provision is made in a statute for a member to arrest a person without a warrant, subject to certain conditions or to the existence of certain circumstances mentioned in the Criminal Procedure Act, 1977, those conditions must be observed and those circumstances must exist before the arrest is made.
Amount of force which may be used in effecting arrest
As a rule there should be no need for the use of force, and, in every case where it may be necessary, only such force as is absolutely necessary to overcome resistance to the arrest, may be used.
No justification whatsoever exists for unnecessarily beating, kicking or otherwise ill-treating an arrested person and there is no excuse whatsoever for a member to act in this manner. The public must report such actions immediately.
Entering of premises for the purpose of arrest
Section 48 of the Criminal Procedure Act, 1977, makes provision for the police officer to enter premises with the purpose of arresting any person who the officer has authority to arrest and who is known or suspected to be in/on such premises.
The police may however first audibly demand entry into such premises; and notify/announce the purpose for which entry is sought. If and when the police officer fails to gain entry after complying with the requirements such officer may break open, enter and search such premises for the purpose of effecting the arrest.
Information that must be furnished to a person upon arrest: In terms of article 11 (2) of the Constitution, the information (judges rules) that must be given to a suspect/accused at the time of or immediately after his or her arrest is as follows:
the reason or grounds for his or her arrest;
that he or she has the right to remain silent and that anything he/she says, may be used as evidence against him or her in a court of law;
that he or she has a right to consult with a legal practitioner of his or her choice or that he or she may, if he or she so prefers, apply to the Department of Legal Aid to have a legal practitioner assigned to the case at state expense, if he or she does not have the funds to pay for his or her own practitioner; and
that he or she has the right to apply to be released on bail.
If the information is not understood in the official language it must be given to the arrested person in a language which he or she understands.
Search of the arrested person: In terms of section 23 of the Criminal Procedure Act, 1977, a member may search an arrested person. The purpose of such a search is twofold, namely to find any article that may be in such person’s possession and which could be used in evidence, and to determine whether he or she has any concealed weapons on him or her which such person could use to injure himself or herself or any other person.
Detention period: In terms of Article 11 (2) of the Constitution and section 50 of the Criminal Procedure Act, a person may be detained for a maximum period of 48 hours.
Presumption of innocence: An arrested person is presumed innocent until proven guilty by a competent court of law.
2020-03-04 07:37:53 | 4 months ago