Thaddeus Sory writes: ARREST OR ASSAULT? WHAT DOES THE LAW SAY?

1.​In the past week, there has been much discussion about the “attempted” or “failed” arrest of a citizen. I will not discuss who was arrested or what he was doing at the time. My only question is this: if the arrest happened, was it lawful.

2.​I will set out what the law says. You can then watch the video in circulation and reach your own conclusion.

3.​A police officer may arrest, without a warrant, any person he suspects on reasonable grounds of having committed an offence (section 10(2) of Act 30).

4.​By law, an arrest is made by touching or confining the body of the person being arrested. The law does not say how much force may be used to arrest a person, but the word “touch” suggests that the force should be minimal unless more is truly needed. A learned author has suggested that simply touching the person’s shoulder and telling him, “you are under arrest”, is sufficient.

5.​There is an exception to the rule on arrest: no touching or confining is needed if the person shows, by words or conduct, that he submits to the arrest.

6.​An officer who arrests a person in any other way is not acting lawfully in the execution of his duty. He may instead be committing assault by imprisonment against that person.

7.​A case decided over fifty years ago explains this point well. See the case of Asante v The Republic [1972].

8.​In that case someone reported an assault to the police. As is common practice, a police officer went to “invite” the suspect to the station. He found the suspect, identified himself as a police officer, and invited him to the station. The suspect refused the invitation. The officer then took the ignition key of the suspect’s vehicle to stop him from driving away. In the struggle that followed, the officer was knocked down, injured, and his trousers were damaged.

9.​The High Court said that where a person is charged with assaulting a police officer in the execution of his duty, the prosecution must prove that:

i.​the person assaulted was a police officer;

ii.​the officer was lawfully carrying out his duty at the time; and

iii.​the accused’s conduct amounted to assault.

10.​The prosecution does not need to prove that the accused knew the person was a police officer, or that he knew the officer was on duty at the time.

11.​The Court found that it was the police officer who committed assault first. Taking the ignition key was not part of a lawful arrest, so it amounted to assault by imprisonment. The suspect was therefore entitled to force the officer to give him access to his vehicle, in order to free himself from that continuing assault.

12.​The Court was clear: every person’s liberty is protected by law until he breaks the law in a way that allows a police officer to use his legal powers against him. Even then, the officer must act strictly within those powers. If he does not, he commits a trespass against that person.

13.​Beyond the rule in Asante, all public officials, including the police, must respect the right to administrative justice in article 23 of the 1992 Constitution. Every exercise of state power comes with a duty to act reasonably. The common law adds a duty to act proportionately.

14.​If an official’s conduct, judged against the facts, is unreasonable or disproportionate, he has gone beyond his powers and cannot claim the protection of the law.

15.​The Police Service Instructions treat reasonableness and proportionality as essential when deciding whether to arrest. As a general rule, the police should not arrest a person unless:

i. the arrest is needed to prevent a breach of the peace;

ii. there is reason to believe the suspect may run away or be hard to trace;

iii. there is reason to believe the suspect may commit another offence if not arrested; or

iv. the arrest is needed for the immediate investigation of the offence.

16.​The same rules warn that hasty arrests may hamper investigations, ruin an otherwise good case, or embarrass the police.

17.​The questions to consider in this case are as follows:

i.​Was this person first placed under lawful arrest, as the rule in Asante requires?

ii.​Was the use of the power of arrest reasonable in the circumstances?

iii.​Was it proportionate, especially since he offered to drive himself to the station with the officer?

18.​The arrest or failed one reminds me of the arrest of the god Dionysus [sometimes called Bacchus] in Greek mythology.

19.​Dionysus was the god of wine. King Pentheus forbid his people from worshipping him because followers of this god engaged in wild and uncontrolled frenzies perhaps because they were drunk. Angered by this Dionysus charmed some relatives of King Pentheus to conduct themselves in a Bacchic frenzy. Pentheus ordered the arrest of Dionysus not knowing he is a god. Pentheus imprisoned Dionysus, thinking him to be just a man, but his chains fell off and the jail doors opened for him and he left leaving Pentheus embarrased.

20.​I condemn all acts of impunity. I stand with the law.