UNDERSTANDING UNLAWFUL ARREST; What Every Citizen Should Know

An arrest is one of the most serious authorities the police has been granted by the law, however it is one of the most abused. This article elaborates on what makes an arrest lawful and the rights individuals can exercise when it is not.

What is an arrest?

An arrest in plain language simply means taking a person into legal custody.  An arrest does not have to be physical. If you have been informed in clear terms that you are under arrest, then arrest has taken place, you do not need to be necessarily restrained or physically touched.

This leads us to clarify these two terms that are used almost always interchangeably, arrest and imprisonment.

It is important to know that being arrested is not the same as being imprisoned. An Arrest is just a temporary hold by the police to investigate a situation when they have probable cause to believe that a person broke the law while Imprisonment only happens later, it is the continued holding of that person for days, weeks, or longer if a court formally finds the person guilty of a crime.

What Makes an Arrest ‘Unlawful’?

An arrest is unlawful when it is carried out without proper legal justification or any authority backing it up

Evert person is guaranteed personal liberty under Article 14 of the 1992 constitution, and freedom of movement under Article 21 of the constitution.

An arrest is, by its nature, an interference to that liberty, because of this interference, the person who carries out an arrest must be able to justify it in court. Under Article 11 of the constitution, that justification must only come from one of the following recognized sources of law; The constitution itself, common law, an Act of Parliament or subsidiary legislation.

The Constitutional Grounds for a Lawful Arrest

Article 14(1) of the Constitution sets out the specific, exhaustive circumstances in which a person’s liberty may be lawfully restricted through arrest and they are as follows;

• In execution of a court order made in connection with a criminal offence
• For contempt of court
• On a reasonable suspicion of having committed, or being about to commit a criminal offence
• In execution of a court order made generally
• Where the person is suffering from a disease, is of unsound mind, or is a vagrant
• For the purposes of deportation or extradition
• For the education or welfare of a person under the age of 18

Even though the law allows a person to be arrested on these grounds, Article 14(2) of the constitution guarantees that a person who is arrested must be informed immediately in a language he or she understands, of the reason for the arrest and of the right to a lawyer of their choice.

An officer cannot enter a person’s property without any legal basis, arrest them, and later claim the arrest was lawful because the person consented, stayed silent or did not object. The law permits a person to use reasonable force to resist an unlawful arrest

How an Arrest Must Be Carried out – The Criminal and Other Offences (Procedure) Act

Section 3 of the act sets out three recognized modes of arrest

1. By physical touch
2. By confinement
3. By the person’s submission to custody

Section 6 requires that any restraint or force used to effect the arrest be reasonable and not excessive.

Under Section 9, any person who is arrested must be handed over to police custody. The Act then distinguishes between arrests carried out by different people: Section 10 governs arrest by the police without a warrant, while Section 12 governs arrest by a private person without a warrant.

The Seven Requirements of a Proper Arrest (Common Law)

Beyond the Constitution, the common law has developed a well-established framework built up over decades of case law for what a lawful arrest must look like. It can be summarized in seven points.

1. Communication of the arrest — The person must be told that they are being arrested, either formally (by warrant) or informally (by word of mouth).

2. The purpose of the communication — This communication exists to tell the person what offence they are suspected of and not to recite their legal rights. Those are separate obligations.

3. There must be a reason, grounded in fact — The arrestor must be able to point to real facts supporting the arrest. Only one reason is needed: a reasonable suspicion that a wrong was committed. The person does not need to be proven guilty or even shown to be the culprit, only that there were reasonable grounds to suspect them.

4. Police vs. private citizens are held to different standards — A police officer only needs a reasonable suspicion that an offence was committed. A private citizen is held to a higher standard: they must show both that an offence was actually committed, and that they had reasonable grounds to suspect the person they arrested.

5. How “reasonable suspicion” is judged — Courts assess this objectively, based on the facts and circumstances of each case essentially asking: would a reasonable person, in the arrestor’s position, have suspected that this person committed the offence? Importantly, an arrest is not judged by the arrestor’s motive or feelings. Even if the arrestor harbored malice, the arrest remains lawful if a genuine, reasonable suspicion existed.

6. How the reason must be communicated – The reason must be given to the arrestee, in a language they understand (or, where that is not immediately possible, through an interpreter within a reasonable time). It need not be technical or formal, plain language is enough. There are, however, two recognized exceptions. Firstly, the reason need not be communicated where the person clearly already knows it from the circumstances (for example, if caught in the act), or where the person’s own conduct such as resisting or fleeing makes it impossible to communicate.

7. The use of force — Physical force is not required to make an arrest. A person can be arrested by word of mouth alone. But where a person resists or tries to escape, reasonable force may be used. The law permits this because it is in the public interest that suspected wrongdoers can be apprehended, provided the force used is never excessive.

 Key Cases That Shaped the Law

Christie v Leachinsky [1947] AC 573 (House of Lords)

Liverpool police officers arrested a man without a warrant, genuinely suspecting him of receiving stolen cloth but told him he was being arrested for “unlawful possession” under a statute that gave them no such power. The House of Lords held the arrest unlawful. Lord Viscount Simon laid down the governing principle: a person is, in the first place, entitled to their freedom, and an officer arresting without a warrant must tell the person the true reason for the arrest at the time (or as soon as reasonably possible) and not a reason the officer knows to be legally wrong. This duty does not require technical language, and it falls away only where the circumstances make the reason obvious, or where the person’s own conduct makes it impossible to communicate.

Walters v W H Smith & Son Ltd. [1914] 1 K.B. 595

An employee was caught by his employer taking a book from the shop’s own bookstall and was arrested. He was later acquitted, since as an employee he had no dishonest intent in handling stock he had access to. The case illustrates a wider rule: a private citizen can only justify arresting someone on suspicion of a crime if they can show both that the offence was genuinely committed, and that they had reasonable and probable cause to suspect the person arrested.

Dallison v Caffery [1965] 2 All E.R. 610

Money went missing from a solicitor’s office, and a witness identified the plaintiff from a photograph. He was arrested and charged, but the prosecution later withdrew the case as one of mistaken identity. He sued the arresting officer for false imprisonment and malicious prosecution. The claim failed and the Court of Appeal, per Lord Denning, held that the officer had reasonable cause to suspect the plaintiff at the time of arrest, even though that suspicion later turned out to be mistaken. The case confirms that lawfulness is judged by what was reasonably known at the time of arrest, not by hindsight.

Ghanaian Cases

Asante v The Republic [1972] 2 GLR 177

A police officer, acting on a complaint, approached a lorry driver and told him only that he was being “invited” to the police station, without stating why. When the driver refused to go, the officer seized his ignition key. A struggle followed, and the driver was charged with assaulting the officer. The court held that the driver had acted reasonably in resisting what was, in substance, an unlawful arrest because the officer had never communicated a proper reason for it, and seizing the key to physically restrain him amounted to false imprisonment. The case is a leading authority for the right to resist an unlawful arrest.

Yaw v Cobbina [1962] 1 G.L.R. 40

A destooled chief refused to hand over stool property and barricaded himself in with it. Police arrived to recover the items, and he resisted, later claiming he was never told why he was being arrested. The court held the arrest lawful as the surrounding circumstances made the reason obvious, and his own resistance made it practically impossible for the police to communicate a formal reason.

Nkrumah v Foli [1982-83] GLRD. 106

A woman reported to police that she had been assaulted, and officers went on to arrest the accused. He sued her for unlawful arrest. The court held she was not liable, since it was the police exercising their own independent judgment who made the arrest. A mere complaint to the police, which the police then act on at their own discretion, does not make the complainant responsible for the arrest.

Tando v Adu [1961] G.L.R. 544

The plaintiff was arrested after the defendant allegedly made a false report of theft to the police. The court held the defendant was not liable, since he had not directed or instructed the police to make the arrest. To hold someone liable for an arrest carried out by the police, it must be shown that they actively authorized or directed the arrest because a mere complaint is not enough.

Asumani Bugembe v The Attorney-General

The plaintiff was injured while resisting an arrest during which the police failed to communicate any reason for it. The court held that a person cannot complain of not being told the reason for their arrest where their own conduct, that is, resisting, fighting back, or fleeing, made it practically impossible for the arresting party to communicate that reason.

Conclusion

If you are ever arrested, you are entitled to be told promptly and in language you understand, the reason for your arrest and your right to legal representation. If that reason is never given, and the circumstances do not make it obvious, the arrest may well be unlawful, and the law permits you to resist it using reasonable force.

However, resisting an arrest is a serious step that is associated with real risk. If you believe you have been unlawfully arrested or detained, the safest course is almost always to comply at the time and challenge the lawfulness of the arrest afterward, through a lawyer rather than resisting in the moment.