Every Sunday from now on we will be publishing articles by the Guyana Bar Association outlining for the benefit of citizens, the power of arrest, detention and search conferred by the law on the Police Force. The articles will also look at the ramifications, both administrative and legal, of excesses by the authorities.
The first of these columns follows below.
Part 1
Much ado has been directed at the amendment made to the Constitution in 2003 which made it permissible for the police to keep an arrested person in custody for seventy-two hours before taking him before a court. The repercussions of this amendment will be discussed in later columns.
What is important for the purposes of this introduction is to bear in mind that, before a person can be in custody, he must be arrested. If the arrest is not lawful, then his detention as a result of the arrest, whether for one hour or for seventy-two hours, is equally unlawful. The Constitution does not expand the power of arrest, and if the person effecting the arrest is acting unlawfully, then the person being arrested is not lawfully in detention, and no protection avails the arresting officer under the provisions of the Constitution.
It therefore becomes necessary to explore the powers of arrest enjoyed by members of the Police Force and the limits of those powers.
In addition to common law powers of arrest given to all citizens where a person has breached or is about to breach the peace, general powers of arrest are conferred on members of the Guyana Police Force by statutory provision. Where a member of the Police Force effects an arrest, he acts lawfully so long as the circumstances of the arrest fall within the parameters set out by the legislation for making an arrest. Unless the circumstances of an arrest are positively justified by the Act, the arrest will be unlawful. A policeman who cannot justify the arrest by reference to positive permission under the Act will be acting unlawfully.
A person has been arrested when a police officer makes it clear that he will if necessary physically prevent the person from going where he wants to go.
Once that choice is taken away from the individual, even if he has not been physically restrained by the policeman, he has been arrested. Thus, an ‘invitation’ to accompany the officer to the station, or directions to go with the officer to the station, will be an arrest provided there is no choice, once it is clear that force will be used upon the refusal of the individual to comply.
Road users in Guyana are familiar with situations where traffic ranks will conduct a speed gun operation. Each car caught speeding by the radar is stopped, and the driver is made to wait until a sufficient number of vehicles has been netted. All are then taken by procession to the station.
Alternatively, the traffic rank will direct the driver to drive to the station, and will follow him on his police vehicle. These procedures all involve an arrest so long as the policeman by his words or conduct makes it clear that the driver is no longer at liberty to go where he will, and that if he disobeys, force will be used to restrain him.
