Know Your Legal Rights & Responsibilities: Detention, Arrest, Bail!!!
Police officers often lock up persons without charging them. The lawful detention period without charge is 24 hours. Amendments were made to Sections 50B and 50F of the Constabulary Act as part of the ‘Anti-Crime Bills’ in 2010 which extended the detention period without charge to 72 hours for a year. This was extended for another year to July, 2012 but was not re-extended afterwards.
- You have a right to freedom from arbitrary detention.
- The police should have reasonable grounds for detaining you and they should tell you the reason for your detention.
- If you are being detained and not told the reason, you have a right to ask politely, the reason for your detention.
- When detained, you have a right to communicate with and be visited by a spouse, partner or family member, religious counsellor and a medical professional of your choice.
- You also have a right to communicate with and retain an attorney-at-law.
- If you are detained for more than 24 hours without being charged, you can get the duty counsel or lawyer to go to court for an order for the police to release you if they are not going to charge you. This is known as habeas corpus. Habeas Corpus which literally means “bring the body” is a writ or legal action through which a person can be released from unlawful detention.
NB. The detention period may be extended under State of Emergency circumstances. However under these instances, new stipulations will be made known.
- The police should normally have a warrant before they arrest you.
- They can arrest you without a warrant if:
a. you have committed a felony or the police have reasonable grounds to suspect that you are about to commit a felony;
b. you have committed a dangerous Breach of the Peace;
c. if you refuse to give your name, address, licence to a uniformed police officer after you have committed a road traffic offence.
d. if you are caught in the act of committing some minor offences.
RIGHTS ON ARREST
- You have the right to freedom from arbitrary arrest.
- The police should advise you of the charge against you; or if they are not charging you, they should tell you why they are arresting you.
- When you are arrested the police should advise you that you do not have to say anything.
- They should tell you that anything you say can be taken down and given in as evidence.
- When arrested, you have a right to communicate with and be visited by a spouse, partner or family member, religious counsellor and a medical professional of your choice.
- NEVER Resist Arrest!
- SAY NOTHING Until Advised By A Lawyer.
RIGHTS ON ARREST
Fingerprints and Photographs
- You have a right NOT to have your fingerprints or photograph taken but remember you can agree for them to be taken
- If you are suspected of being involved in certain serious offences, a Superintendent of Police or officer of higher rank can authorize that they be taken.
- They can be taken if you are deemed incapable of consenting, eg. If you are mentally challenged.
- A court can also order that your fingerprints be taken.
Legal Aid – Duty Counsel
- When arrested and taken to the police station, the police should ask you if you have an attorney.
- If do not have an attorney, then he should refer you to a list of ‘Duty Counsel.’ You may choose one to represent you.
- Duty Counsel is a lawyer who has agreed to provide legal aid assistance to persons arrested & detained.
- A Duty Counsel is paid by the government – Never give Duty Counsel any money.
- Duty Counsel is usually a ‘regular lawyer’ who donates a portion of his/her time to providing legal aid assistance – he/she is not always an Attorney from the Legal Aid Department. Even if he/she is from that department, he/she is equally capable to handle your case.
- Once you have asked the police to contact Duty Counsel on your behalf, they should not question you until your lawyer arrives.
- The police should allow Duty Counsel to meet with you somewhere where they cannot hear your conversation.
- Remember everything you say to a lawyer is confidential!
- If there is to be an identification parade ensure that your lawyer is present.
- If you are charged and the case goes to court, the Duty Counsel may represent you for your first court appearance.
RIGHT TO BAIL
- Once you are charged you have a right to bail.
- Bail must be considered within 24 hours of you being charged.
- For most offences bail can be granted by the police. This is known as station bail.
- If you are charged with an offence for which you cannot be imprisoned then the police SHOULD in most cases grant you bail.
- If police deny you bail you can request bail before a Resident Magistrate (RM).
- If you are charged with an offence for which the police cannot grant you bail then ask to be taken to a judge as soon as possible.
- If a court denied bail at first, you can keep applying to the same court or you can apply to a judge of the Supreme Court
TO GET BAIL
- One (1) passport-sized picture signed by a Justice of the Peace (J.P.)
- A valid form of identification
a. National ID
b. Drivers’ Licence
- Two (2) letters of recommendation
b. Sergeant of police or police of higher rank
a. Motor vehicle statement
b. Land title without caveat
c. Bank statement
a. A recent utility bill
For more information please see The Charter of Fundamental Rights and Freedoms (Constitutional Amendment Act), 2011, The Constabulary Force Act as well as The Bail Act.