This is advice I had to give to someone in the middle of an especially dark night in a police station where the law meant nothing and the mention of it was treated with contempt. That night both the victim and I walked out of the station alive. This should be your singular purpose if you are ever arrested.
The police had nearly killed the victim when they arrested him for refusing to be searched – and for making the fatal mistake of saying that he knew his rights. I fear what would have happened if he had to spend the night in the cells.
Police are entitled to effect an arrest only to secure the attendance of an accused person at his or her trial. It might come as a surprise to many, but it will almost certainly come as a surprise to most members of the police, that the job of a police officer does not put them in contact with criminals. Their job is to deal with suspects – not criminals. If one is tempted to think this away as a distraction, realise that you would have to think away the entire system of adjudication according to law – you would have to think away the courts. This might even seem attractive until you realise that you could be the one who somehow comes into contact with a police officer who has judged you already and is determined to punish you.
Police powers of arrest are set out in section 40, 43 & 44 of the Criminal Procedure Act (51 of 1977). Sections 43 and 44 relate to arrests under a warrant.* These are issued after a Magistrate or Justice has applied his or her mind – and do not concern the abuse of police discretion – and so is not relevant here. Section 40 provides for the arrest of a person without a warrant.
It is important to understand, from this, what it is that a police officer may arrest one for and what an officer may not arrest one for. There is, of course, no point in repeating the list in section 40* as supplemented by schedule one.* It may be helpful to bear in mind – in addition to the list – what may well be considered the outer limits of the offences for which an arrest may be effected. This may be found in the schedule, as follows:
Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine.
Instances where an officer may not effect and arrest must include where a person refuses to pay a bribe or to buy a coke for an officer. In addition, an officer may not arrest one for saying that one knows one’s rights – although this is almost certain to result in one’s arrest. One may not be arrested for refusing to allow an officer to search you.
Of course, if the officer has reasonable ground on which to search you – under the appropriate law of search and seizure – the officer may then use force to effect the search – but he may not arrest you in order to search you. He may also not arrest you for interfering with him in his duty – s/he is not authorised to arrest you in these circumstances but to use force to effect the search.***
Some practical advice – in case you are arrested: record everything. Ideally record both video and audio of everything that is said and done. To this end – for arrests from a vehicle – investing in a dashcam that will remain on – even if just to record audio for some 10 minutes after the ignition is switched off. Switch your cell phone on to record – in fact – make sure that it is set up to record easily with the press of a shortcut or a few keys. As soon as possible upload the recordings to the web.
Move slowly if you need to retrieve anything – and explain what you are doing if you reach for anything.
Note the names and force numbers of the relevant officers – even if you only get the name of one – this can lead to the rest. Similarly for the vehicles that the officers are driving. What kind of car, what colour? Number plates are first prize – after names and force numbers of the relevant officers.
Set your phone to send an emergency alert from the moment you realise you are about to have an encounter with the police. Let the message read that you about to have an encounter with the police and that if you do not send a “cancellation” message within, say, 10 minutes, your contacts should come looking for you. The cell phone app “Glymse” offers an amazing service that sends one’s position for a limited period – which one may customize.
Be polite – even if outrage is appropriate. Regrettably the message is that you must shutup and suck-it-up even if you are in the right so that you can live to fight another day – in the cold light of day in a place where the law matters.
If you are arrested call your family and friends and tell them to go to the relevant police station. To the family and friends of anyone who is arrested, go immediately to the police station. Let the police know that you are there for a particular person. Insist on visiting with the detainee. Section 35(2)(f) of the Constitution provides:
Everyone who is detained, including every sentenced prisoner, has the right-
…
to communicate with, and be visited by, that person’s-
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
Take note and – ideally – take photos of any injuries. Take the detainee food and something to drink. Set up a vigil at the station or visit regularly at arbitrary times – until the first appearance in court. This must be 48 hours from arrest – or if the 48 hours expires on a non-court day,**** then by the end of the first court day**** (usually a Monday).
There are good officers and bad officers. I am shocked at the prevalence of bad officers and the brazen disregard for law that has informed the tone of this discussion. There are good officers out there – perhaps even the majority of officers. My job doesn’t bring me into contact with many of them. What I can say is that you should make no mistake, there are many bad officers out there and if you say or do something which – although perfectly legitimate – the officer considers somehow wrong, you could be in mortal danger.
Something that is often not appreciated is that when a police officer arrests you unlawfully or uses excessive force in effecting an arrest, it is not only the crime of assault which is inevitably committed, but – to the extent to which the officer foresees the possibility that s/he may not be entitled to arrest you in the circumstances – the crime of kidnapping is also committed. Kidnapping is committed where a person – any person – interferes with the freedom of movement of another – intentionally and unlawfully.
The importance of this is that unlike, for instance, an assault which took place upon arrest, where any other officer becomes aware of the assault afterwards, that other officer does not become a party to the assault. The critical difference with kidnapping is that so long as it endures – that is, the unlawful interference with one’s freedom of movement – any officer who becomes a party to the continued interference with one’s freedom of movement, and who foresees that the detention may not be lawful, him/herself commits kidnapping – by common purpose. One may expect that an officer may avoid this liability by simply refusing to acquaint him/herself with the true position in respect of anyone brought to the station under arrest. For some in lower ranks, perhaps. However, for any officer in any sort of authority, there is a legal obligation to ensure that those who are held in detention are lawfully in detention and their continued detention can be justified. Wilful ignorance on the part of any of these officers in authority is a well-recognised form of intention in our law.***** In the result, both the arresting officers and anyone who came to suspect – even by wilful ignorance – that a detention is unlawful, commits kidnapping.
In conclusion, if you become another victim of the abuse of authority, be polite, quiet, record everything, communicate your predicament, but make sure you live to fight another day.
Remember if is not all for nothing. You will have your day and on that day, not only must you require that your assailants are charged with assault, but that the arresting officers and everyone at the station who should have protected you, are charged with kidnapping.
James Grant
8 January 2018