By Prof. Raphael Nyarkotey Obu & Daniel Sackey
There are instances where the public agitates about arrest without a warrant. The question for discussion in this article is whether a police officer can arrest without a warrant. As professional law students at the Gambia Law School, Banjul, and the Ghana School of Law, Ghana, we examine this based on the Ghanaian and Gambia jurisdictions. We also examine the objective test of arrest without a warrant.
Arrest
An arrest can be effected either with a warrant or without a warrant.
The Gambia Jurisdiction.
In the case of the Gambia, Police officers, judicial officers, and private persons are empowered before the law to effect an arrest without a warrant. Also, members of the Gambia National Guard and the National Intelligence Agency are clothed with the powers of arrest without a warrant. Section 15 of the Gambian Criminal Procedure Code (CPC) ACT NO. 26 of 1933, provides the road map and grounds for arrest without a warrant by any police officer or any order from the Magistrate.
Additionally, Section 73(1) of the Drug Control Act (Cap 13:05) gives the power to a Narcotic Control Officer, a police officer, a customs officer or any other person acting in the exercise of his or her powers may arrest without a warrant. The grounds for arrest have been provided in this section.
However, in the exercise of his powers under section 15 of the CPC or section 73 of the Drug Control Act, a police officer or Narcotics Control Officer in the Gambia, as the case may be, must demonstrate that there were facts from which it could be reasonably inferred that the suspect committed the crime or offence. Anything apart from this, the police officer or the Narcotic Control Officer would find it defend to mount a defence on his or her action by relying on the statutory provision.
Ghanaian Jurisdiction
Now turning to the Ghanaian Jurisdiction, section 10 of the Criminal Procedure Code of Ghana (Act 30) gives the power to the police to arrest without a warrant.
A police officer has the statutory power to arrest without warrant a person who the police officer suspects, upon reasonable grounds, of having committed an offence or of being about to commit an offence and in order to prevent the commission of the offence in any highway, yard, building or other places during the night. The police officer must suspect that the person has committed a criminal offence or is about to commit the offence in any place. But, the suspicion must be reasonable; in other words, the grounds for the suspicion must be reasonable to justify the arrest. However, there is a very important overriding qualification attached to this common law power of the police, namely, it must be exercised reasonably. This places a duty on the police officer to satisfy himself that there are reasonable grounds for the suspicion of the guilt and the reasonable grounds must exist at the time of the arrest and not after the arrest.
The common law principle in Christie v. Leachinsky is codified under Act 30 in Ghana and states that a police officer has a right to arrest, without a warrant, any person whom he reasonably suspects of having committed a felony, although no crime has in fact been committed.
The objective test for arrest without a warrant
In both jurisdictions: Concerning an arrest without a warrant, the objective test is paramount. This means that the police cannot just arrest anyone based on his or her personal belief but it has to be based on the facts of the case. Thus the test is objective one. We examine some supporting cases:
The first is the Nigerian case of Chukwuka v Commissioner of Police (1964) NNLR 21. The court reasoned that: “The objective test is not what the police officer himself regards as reasonable but the whether the facts within the knowledge of the policeman at the time revealed circumstances from which it could be reasonably inferred that the appellant had committed an offence”.
The Ghanaian court in the case of Solomon Joojo Cobbinah and others v. Accra Metropolitan Assembly and others (2017) with Suit No. HR/238/2015 also set out the test to determine the reasonableness of an arrest by the Police without a warrant as follows; “The test for reasonableness cannot be subjective; it must be objective. The decision to arrest or not to arrest ought not to be left to the absolute and unregulated discretion of the arresting officer or to the whims and caprices of such an officer or else the test for reasonableness will depend absolutely on the officer. That ought not to be the case. The test for reasonableness must be objective. In other words, there must be a common standard or measure for determining whether the arrest is reasonable or not. The standard for reasonableness can be found in the statutory provision that creates the criminal offence. Undoubtedly, each offence has discrete ingredients to be proven by the production of relevant and admissible evidence. And, the facts that give rise to a reasonable suspicion must, at least prima facie, support the ingredients of the criminal offence”.
Also, in the Nigerian case of Jackson v Omorokuna(1981) 1 NCR 283, where the plaintiff was arrested because he was unable to explain to the policeman the whereabouts of his ignition key and could also not produce documents to confirm the ownership of the motorbike. The court held that the arrest was lawful. The court reasoned that the test here is a reasonable person acting without passion or prejudice.
Hence, if after the arrest, an investigation confirmed that the suspect did not even commit the offence for which he was arrested, and released, the arrest is not rendered unlawful. The most important thing is that at the time of the arrest, the facts disclosed an apparent commission of an offence.
For instance, in the case of Wiltshire v Barret (1965) 2 ALL ER 271, the respondent was arrested without a warrant for driving under the influence of alcohol. In the course of the arrest, he sustained some bodily injuries because he was resisting the arrest. After a medical examination, the test proved he was not under the influence of alcohol. He brought an action against the police for assault and unlawful arrest. The lower court ruled for the plaintiff but the court of appeal overturned the lower court decision. The Appeal Court reasoned that the arrest was lawful as the police officer have to act at once. On the facts as they appear on the spot and should be justified by the facts as they appear to them at the time and not any expost facto analysis of the situation.
In the Ghanaian case of Miller V. Attorney-General [1975] 2 Glr 31-45, the court making reference to the dictum of Scott L.J in the case of Dumbell v. Roberts [1944] 1 All E.R. 326, C.A. At p. 329, was of the view that the power possessed by police officers to arrest without warrant, whether at common law for suspicion of a felony or under statutes for suspicion of various misdemeanours or offences, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community. They were quick to point out that, this power to arrest without a warrant may easily be abused and become a danger to the community instead of protection. In the words of a learned Judge, “the protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there exist a reasonable grounds for suspicion of guilt.”
Also a police officer, after arresting a suspect, does not have to take the suspect straight to the police station. He can do what is reasonable to investigate the offence alleged against the suspect. He can take the suspect to his house to search to get the necessary evidence. Or even to the place where the suspect claimed he was not there when the offence was committed to assess whether indeed he was there before proceeding to the police station.
In Dallison v Caffery (1964) 2 ALL ER 610, the court held that the police officer was not liable for damages for false imprisonment for taking the appellant first to his house to search for stolen money and then to a friend’s house to confirm an alibi before taking him to the police station. It was held that the officer acted reasonably in investigating the alleged offence before taking the suspect to the police station.
One issue which lingers on the minds of many people in both jurisdictions is whether a person can resist an arrest where the police officer has not been able to state any offence known to the law. The Ghanaian court in addressing this issue in Ampofo v The State [1967] GLR 155, held that section 10 of Act 30 enables the police to arrest without warrant any offence committed in his presence or based on reasonable suspicion of the commission of any offence. However, the meaning of any offence does not mean any offence according to the idiosyncrasies and iconoclastic notions of the police officer, but an offence known to the law. It is pertinent to state that the right to resist an arrest is subject to the duty to submit to an arrest.
If in any case, it turns out that a person is unlawfully arrested, Article 14(5) of the Constitution of Ghana provides that the person shall be entitled to compensation from that other person who in this case shall be the police officer.
In conclusion, the police in both jurisdictions, have been empowered to arrest with or without a warrant. However, for arrest without a warrant, the test that has to apply is the objective test. He or she must act without passion or prejudice.
Prof. Raphael Nyarkotey Obu is a BL candidate at the Gambia Law School, Banjul, The Gambia, and, Daniel Sackey is a Part two student of the Ghana School of Law, Accra, Ghana. E-mail: [email protected]
