Arrest for a felony or misdemeanour

Summary offences, which have been described as less serious breaches of the law, are to be contrasted with felonies and misdemeanours.  These are more serious offences.  They include murder, rape, manslaughter, robbery, wounding and other offences which are tried in the High Court before a jury of 12 persons instead of in the Magistrate’s Court without a jury.

In previous columns, we have explained that power has been conferred by Parliament on any member of the Police Force to arrest without a warrant any person who commits in his view any offence, whether summary or indictable.  It is, however, the small minority of unlucky offenders who have the misfortune to be caught red-handed in the criminal act by a member of the Force.  By far the great majority of offenders are not observed by a member of the Force committing an offence; they become suspects after the event and after an (ideally) thorough investigation has been conducted by the police.

Where the offence is summary in nature, the offender may not be arrested by a member of the Force who did not see him commit the offence (the single exception being where his accuser accompanies the officer and the arrested person to the station and pays a recognizance to prosecute the charge). The police are constrained in such cases to formally lay a charge before a magistrate and serve a summons on the offender directing him to appear in court on a specific day to answer the charge.  He remains at liberty.

The situation is different in the case of felonies and misdemeanours.  Under the provisions of the Police Act, a member of the Force may arrest without a warrant any person whom he has good cause to suspect of having committed or being about to commit such an offence.  The arresting officer need not have seen the commission of the offence; he may lawfully make the arrest if he suspects with reasonable cause that his prisoner committed the felony. Although this power appears extensive, that perception is deceptive, since the exercise of discretion by a member of the Force arresting upon reasonable suspicion represents one of the more difficult and uncertain exercises of power by a policeman.

What makes the job of the arresting policeman so difficult lies in the expression “good cause to suspect.”  If the lawfulness of an arrest is challenged, the arresting officer may be called upon the demonstrate, in order to show that he was acting correctly within the ambit of the Police Act, not only that he believed the prisoner to have committed the offence, but also that the underlying basis of that belief was reasonable.  If either of these two elements is absent, then the arrest will be unlawful.

Personal belief: this is subjective – personal to the arresting officer.  He must genuinely believe that the prisoner committed the indictable offence in question.  It will therefore be unlawful for a member of the Force to arrest a person “for questioning” or “to assist in investigations.”  These reasons for arrest are also inconsistent with a belief in the guilt of the prisoner, who must be informed by the police upon coming to that belief of his right to remain silent.

Reasonable cause to suspect: this is an objective test.  The arresting officer must demonstrate (if the legality of the arrest is challenged) that information was known to him at the time of the arrest sufficient to point him solidly to the conclusion that his prisoner committed the offence.  He cannot defend his arrest by saying that he acted on a hunch.  Newspaper reports commonly report that an arrest was made “on information received.” That in itself is insufficient.  The mere statement by an informant should be accompanied by some element of corroboratory evidence or other factor reasonably pointing to the guilt of the arrested person so as to give rise to the policeman’s belief in his guilt.  Without such a genuine belief based on reasonable grounds, the arrest will be unlawful.

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