Protection against arbitrary arrest

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January 03, 2017

This week, we look at how the law protects you against arbitrary arrest with the head of the Legal Aid Council, Hugh Faulkner.

Q: What is considered to be an arbitrary arrest?

A: An arrest for which there is no lawful basis or which is founded on malice may be considered arbitrary. An arrest ought to be based on reasonable suspicion that a person has committed or is in the process of committing a crime.

Q: If this occurs, what would you advise the person to do?

A: Request of the police that duty counsel or your own personally retained lawyer be contacted. Your lawyer may take instruction from you with a view to bringing the matter before a court of law through a writ of habeas corpus. Where you are able to establish the arbitrariness of the arrest, the State may be sued for compensation.

Q: When someone is arrested, take us through the do's and don'ts.

A: You are not obliged to answer any question until your attorney visits and advises you. The arresting officer should also caution you that you are not obliged to say anything.

Q: At what point should the person ask for a lawyer?

A: If the police expressed a desire to conduct a question-and-answer session, if you are to face an identification parade or if you were locked up without charge, request an attorney.

Q: What are the person's rights if his lawyer is not present, for example, does he have to give a statement to the police?

A: Every citizen has a right to legal representation where he or she wishes to give a cautioned statement. Likewise, the law provides for legal representation for question and answer, station bail application, filing of a writ of habeas corpus, court bail application and identification parade.

Q: What are some of the common mistakes that people make when they are arrested?

A: Seek to argue their own cases themselves. Failure to request and be guided by trained legal advice. Make self-incriminating remarks without understanding the full context of the case against them.

Q: Finally, how can the Legal Aid Council assist persons who have been arrested but cannot afford legal representation?

A: The Legal Aid Council provides case presentation for all citizens who are taken into custody and cannot afford to privately retain a lawyer.

The service is available for all persons arrested at all police lock-ups islandwide.

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