Maria Mokwebo (Director)
An arrest is deemed wrongful when a person is physically detained without proper legal authority. An arrest may be made under normal circumstances when a police officer is in possession of a warrant of arrest. This does not mean that when a person is arrested without a warrant of arrest automatically the arrest is unlawful, a police officer with reasonable suspicions that a person has committed a crime or an offence, or is about to commit an offence may arrest without warrant. The suspicion must be reasonable. The arresting police officer must be able to justify their actions.
When a suspect is arrested, the arresting officer must, if in possession of a warrant of arrest and on request by the suspect, show the warrant to the suspect. If the police officer is not in possession of an arrest warrant, the suspect must be told the reasons for their arrest. An arresting officer must inform the suspect of their legal rights when arresting them as envisaged by the constitution.
Should a suspect be arrested without probable cause that they committed an offence; or be arrested without being informed of their rights; or be arrested with a warrant of arrest which contains false information given by the police officer to the court; or be arrested based on irrelevant considerations; or be arrested without reasonable cause, the arrest is unlawful. In some instances it is not required that the arresting officer be in possession of a warrant of arrest before effecting an arrest, for example where the suspect has just committed a crime such as shooting at another person. However, there are many instances where a person may not be arrested without a warrant of arrest.
A person who has been arrested and believes that the arrest was wrongful has a right to institute proceedings against the State to claim damages for such arrest. There are several heads of damages and the claimant must take care to claim for the correct category.
In some cases persons who are detained by the police die in detention as a result of police action. The dependents of such a deceased person will have a claim against the State for loss of support.
In short, everyone has the protection of the law and is entitled to sue the State where they are subjected to unlawful arrested. The critical questions are: Do you know what facts will qualify you to institute such a claim? Do you know the claim procedure? Can you correctly quantify such claim? Are you able to navigate your way through the court process without the assistance of a trained lawyer? The answers to all these questions are probably no. Most people will need such assistance. Self-help may be very costly in the end. As US President Abraham Lincoln once said, “He who represents himself has a fool for a client”.
Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.