This is the second in our series 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
Whenever an arrest is effected by a member of the Police Force, a number of obligations are imposed on that arresting officer by virtue of our common law and the Constitution of Guyana.
First, the arresting officer must inform the person arrested of the reason for his arrest. The right to be informed is generally set out in the Constitution and must be communicated to the prisoner as soon as reasonably practicable in a language he understands.
Under the common law, the arresting officer is generally personally responsible for promptly informing the arrested person of the reason for his arrest. If the person is arrested in circumstances where the reason is obvious – if he is caught in the act of a robbery for example – there is no duty to so inform him. Further, if he creates a situation which makes informing him impossible – for example running away or resisting arrest – the arresting officer is excused from the duty of informing him of the reason for his arrest.
As soon as possible after the arrest, the arresting officer should take the arrested person to a police station. Some delay is permissible if the prisoner is necessarily required elsewhere in order for the officer to carry out such investigations as it is reasonable for him to carry out immediately. A thief might for example be able to lead officers to valuable stolen property or other evidence which might be lost if he were first placed into custody at the station.
Alternatively, the arresting office may take the prisoner to seek corroboratory evidence of his exculpatory statement to the officer.
There is in Guyana a constitutional right not to give evidence at the trial of a criminal charge against you. At common law, this right is extended beyond the arena of the trial. Shortly stated, a person who is questioned by the police, whether he is under arrest or not has the right to remain silent. Further, his silence alone cannot be used against him as evidence of guilt.
In fact, as soon as an officer forms reasonable grounds for suspecting that a person has committed an offence, he is obligated to caution that person that “You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.” Thus, the obligation of the arresting officer to inform the prisoner of the reason for his arrest accompanies a corresponding right of the prisoner not to say anything at all to the officer, whether by way of confession or exculpation.
Fourth, an arrested person has a right of access to counsel. In Guyana, it appears that there is no corresponding obligation on the part of the police to inform their prisoner of this right, only a duty to “permit” him to communicate with, instruct and retain counsel without delay.
Finally, the person arrested should be charged and taken before a magistrate as quickly as possible after his arrest or he should be released.
Previously, the requirement existed in our Constitution that the arrested person be brought before a court as soon as is reasonably practicable.
This had been interpreted by the courts using a guideline of 48 hours. In 2003, Parliament replaced that requirement with the now infamous 72 hour rule, which permits the police to keep an arrested person in custody without being formally charged for up to seventy-two hours.
