By Supt. Malang Jarju
The Criminal Procedure Code which is the main guide and anchor of criminal proceedings in the Gambia does not define the term arrest. As such it is difficult to ascertain what exactly constitutes an arrest. The Black’s Law Dictionary 8th edition however provides a fair clue of what arrest is. Accordingly to this dictionary an arrest involves the taking or keeping of a person in custody by legal authority. It further states it to include an apprehension of someone for the purpose of securing the administration of the law Vis-à-vis prosecution or interrogation.
Thus, an arrest is using legal authority to deprive a person of his or her freedom of movement. An arrest is generally made with an arrest warrant. Notwithstanding, an arrest may be made without a warrant if probable cause and urgent circumstances are presented at the time of the arrest. In a nutshell, an arrest is to deprive a person of his/her liberty by legal authority. An arrest is carried out by actually touching or confining the body of the person to be arrested, unless there is a submission to the custody of the person effecting the arrest when he is informed in clear terms that he is under arrest. Mere words cannot constitute an arrest. The person to be arrested must be actually touched or his/her body confined.
Section 8 of the Criminal Procedure Code of the Gambia, provides that; in making an arrest, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action. Therefore, mere words such as ‘I invite you to the police station or follow me to the police station’ cannot amount to an arrest under the law unless accompanied by some form of restraint or restriction. An oral declaration of arrest without touch or submission to custody will not amount to an arrest.
However, there may be an arrest by the words “I arrest you” without touching, provided that the person submits to the compulsion. Likewise, where the accused proceeds towards the police station as directed by the person carrying out the arrest, he or she would be held to have submitted to the custody of the police. Thus, when any form of words is used which is calculated to bring to the person sought to be arrested notice that he or she is under arrest and he or she submits himself or herself that will constitute an arrest. As such, there is no need to touch the person being arrested if he or she complies with the person effecting arrest without any form of argument or resistance.
Where the person sought to be arrested submits to the arrest, it is unnecessary to handcuff or tie him or her since he or she is compliant and thus intends to cause no trouble or harm. Thus, the person arrested should not be subjected to unnecessary restraint other than is necessary to prevent his or her escape. But, is the offence is grave and violence is involved, the person(s) arresting may be justified to use a weapon to effect arrest to prevent escape or trouble.
It can be inferred from the aforesaid provision that arrest being a restraint of the liberty of a person can be effected by actually contacting or touching the body of such person or by his or her submission to the custody of the person making arrest. The submission to custody may be by express words or may be indicated by conduct.
If the person sought to be arrested forcibly resists the endeavours to arrest him or her or attempts to evade the arrest, the police officer or the person carrying out the arrest may use all means necessary to effect the arrest. The means necessary to effect the arrest must however be reasonable and what is reasonable depends on the peculiar circumstances of each case. Excessive force must not and should not be used in effecting an arrest, especially where the person to be arrested did not resist arrest.
The police officer carrying out an arrest must inform the person arrested of the reason or cause of the arrest and if he or she is acting under the authority of a warrant, he or she shall notify the substance thereof to the person to be arrested and if so required shall show him or her warrant. However, where the person arrested is caught committing an offence or is pursued immediately after escape from lawful custody, the person effecting the arrest is not required as such to inform the person arrested of the cause or reason of the arrest.
It is a Constitutional requirement under section 19 of the Constitution of The Gambia that “any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she understands, of the reasons of his or her arrest or detention and of his or her right to consult a legal”. Similarly, section 14 of the Criminal Procedure Code provides same. Thus, a person arrested must be informed within three hours of the reasons of his or her arrest in a language that he or she understands. For instance, I am arresting you for stealing Ebrima Badjie’s Samsung Galaxy Mobile phone. If the arrest is made under the authority of a warrant the person being arrested shall be notified of the substance of the warrant and if so required shall be shown the warrant as soon as possible. The person so arrested has to be taken to a police station forthwith.
On arrival at the police station inquiries shall be conducted into the case, and if, when the inquiry is completed, there is not sufficient reason to believe that the person has committed any offence he shall be released forthwith. If the Officer in charge of the station is satisfied that the person arrested has committed an offence he shall be formally charged and placed in the cells or released on bail after 72 hours depending on the nature of the offence.
An arrest can be effected wherever the person sought to be arrested is found. The presence or absence of an arrest warrant has no bearing on the right to make an arrest in a particular place. Where the suspect is found in a public place, his or her arrest with or without warrant presents no difficulty so long as he or she is reasonably suspected of committing a crime and he or she is informed of the reason for his or her arrest.
A police officer who arrests or is effecting an arrest is excepted to know the offence for which he or she is arresting to avoid false imprisonment.
Again, a police officer should not exceed his or her powers and unlawfully arrest or assault any person in the course of his or her duties to avoid tarnishing the image of the police in the eyes of the public whom the law seeks to protect. Notwithstanding, if a person resists a lawful arrest he or she may be charged with assaulting, resisting or obstructing a police officer in execution of his or her duty, even if he or she did not know the arresting officer(s) was a policeman or was acting in execution of his or her duty. Thus, the arresting officer(s) should endeavour at all times to ensure that the arrest is conducted in accordance with the law that provides same.
The police and corruption
By Madi Jobarteh
It is indeed quite welcoming that the Gambia Police Force has decided to publicly combat corruption in its ranks! The public poster currently displayed by the Gambia Police Force now puts the responsibility on the general public to support the leadership of the GPF to end corruption in this noble Institution.
Let us support them!
Let us set our cameras to take pictures and videos at checkpoints and police stations and in every place in our society to capture acts of corruption and then send the pictures and videos to the police.
For that matter the information on the poster is inadequate. The police should also include landline numbers, emails and names of units and officers so that citizens can call or send emails or visit them in order to share pictures, videos or narrate our stories.
Now that the police have shown the leadership and responsibility to combat corruption, it means citizens therefore have no one to blame if corruption still persists within our foremost law enforcement agency.
Let us report all acts of corruption and then monitor the police to see if they will take necessary action against officers who are caught in the act. If the GPF fails to act then we can now say they were only paying lip service to combating corruption.
We know that in many African countries the police produce and display such billboards all over the country yet the Police remain even more corrupt. Let’s make The Gambia Police Force a different story.
Bravo to the Gambia Police Force. My camera is set!