Legal Eagle : Breaking out of jail might not be a bad thing

October 02, 2017

Escaping police custody always seems like a bad thing. Of course, this view is oftentimes arrived at by those who believe that a police officer has carefully followed the law when he makes an arrest and thereafter caused the person arrested to be placed into the custody of the police. This, however, is a rebuttable presumption.

At the outset, it is imperative to note that the police, at common law, may arrest anyone, without a warrant, who he reasonably suspects to be in the act of committing a crime or about to commit a crime. Ordinary citizens can make an arrest if they observed a crime being committed. However, Section 15 of the Constabulary Force Act as well as Section 4 of the Towns and Communities Act, among other pieces of legislation, outline the powers of the police to make an arrest without a warrant. As most would agree, an arrest is the door to imprisonment, since many of the persons arrested are oftentimes imprisoned by the police. In court, they are referred to as the prisoner in the dock.




In matters touching and concerning escape from custody, the prosecution must prove that the arrest and detention were lawful, that the person who escaped from the police or correctional officer was in actual custody and that there was an escape, which was due to the negligence of the police or correctional officer.

A critical element of proving escape is to prove that a crime was committed. The Privy Council, quoting from Hawkins in the Roy Dillon case, said that where no crime was committed or the police officer has a slight suspicion of an actual crime and in such circumstances in which the arrest or imprisonment cannot be justified, the police officer would not be guilty of negligently allowing the prisoner to escape. The learned author of Hawkins formed the view that "it seems to be a good general rule, that whenever an imprisonment is so far irregular that it will be no offence in the prisoner to break from it by force, it can be no offence in the officer to suffer him to escape". In the opinion of the Privy Council, it is essential for the prosecution to establish that the arrest and detention were lawful and the omission to do so would be fatal to the conviction.

In fact, the law is applied so strictly that the Privy Council established that in these matters, there is absolutely no presumption in favour of the prosecution.

To prove detention, it seems as if the preferred course is to produce the warrant of arrest and/or an order from the judge or the court sheet, or any other written record available. However, if a person is lawfully arrested without a warrant and escaped before he goes to court, in that case, formal evidence may be used to establish his detention.

In fine, if your arrest and detention are unlawful, you can forcefully escape from police custody without penalty and you may even have a civil claim against the Crown for unlawful detention. It seems like breaking out of jail might not be such a bad thing, if the law is on your side.

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