INTRODUCTION 

After laws are made, they must be enforced if they are to be of any benefit to the members of society. The reason being that although some individuals will voluntarily comply with the set rules, many more will be non-compliant making it necessary to establish regulatory and enforcement institutions. Some of these institutions are set up to regulate only specific classes of people or matters, while others may be competent to operate in several areas. In Ghana, an example of the first kind of institution will be the Ghana Revenue Authority which ensures compliance with tax laws while the Police Service falls within the latter category. 

The police service is part of the executive arm of the government1 because it is the main institution used to maintain the criminal laws of the country. They resolve conflicts that arise between individuals and those that arise between the state and those found within its territorial jurisdiction. Their key function is to maintain law and order which they do by detecting and preventing crimes, apprehending, and prosecuting offenders, and protecting life and property2. By virtue of their functions, the police are the branch of the security services that primarily interacts with the public hence it is necessary for them to maintain public confidence and trust. 

Given that the issues that fall between the remit of dispute amongst citizens and disputes between the state and its people are wide, the police are given wide powers to act. However, in acting, they are required to comply with domestic laws and international law enforcement standards3 where possible to prevent abuse of their powers. Some of the standards with which they are to act include being responsive, impartial, fair, and empathetic to the people they serve. 

To examine the scope of the police’s power to maintain law and order, this article is arranged in four sections. The first section looks at the scope of the police’s power of arrest and their investigative powers. Then there is a discussion on some principles that guide the exercise of these powers. The third section discusses some remedies available to victims of irregular use of investigative power and finally, recommendations are made on how best this power can be exercised. 

THE SCOPE OF THEIR INVESTIGATIVE POWERS 

To ensure personal safety4 and protection of property of people5 within its jurisdiction, the state makes criminal laws that proscribe conduct that interferes with the rights of others on the pain of punishment. Criminal laws are therefore one of the primary means by which the rights guaranteed by the Constitution6 may be enjoyed. 

The role of the police service in dealing with such unlawful interference is two-fold. First, they may take preventive measures by arresting suspects where there are reasonable grounds for believing that a person’s actions constitute an offence7 or after a crime is committed. The police may effect an arrest under the authority of a warrant or without a warrant. No warrant is needed by a police officer carrying out the arrest, for instance, where the offence is committed in the presence of the police officer, where a person is suspected of having committed an offence and where a person is suspected of being about to commit an offence. 

The law, also, provides for the mode by which arrests ought to be made8, the procedure for searches of persons and places9. Where a person does not voluntarily submit to custody after the police officer has stated that he intends to arrest him, the police can touch or confine the body of the suspect. If the person being arrested is not caught committing a crime, during the arrest, the officer must notify the accused of the cause of the arrest and if the officer is acting under a warrant, show the warrant to the person being arrested if he so desires. 

The second leg of the police’s duties is carried out in the aftermath of the commission of a crime. Here they investigate10 and assist in the prosecution of a person said to have committed an offence after taking him to a police station. Where the arrest is lawfully conducted, subsequent acts of the police including conducting searches or medical examinations, to enquire into the truth of what occurred are justifiable11

Investigations must be done expeditiously and where there is no good reason to believe that the person has committed an offence he must be released forthwith or where there is good reason to believe that he has committed an offence he must be granted bail12

The information gathered from investigations is key because it is used by the prosecution as evidence during criminal trials. Both suspects and witnesses may voluntarily disclose information but there must be no compulsion to give a statement or information at the criminal investigation or cause a person under investigation to self-incriminate13 and a suspect must be presumed innocent in criminal investigations.  Even though it is public interest that crimes should be solved, during investigations, there must be no physical or mental pressure exerted on witnesses and suspects in attempting to obtain information14

GUIDING PRINCIPLES IN THE EXERCISE OF THEIR POWERS

As maintainers of the law, the police are required to exercise their powers reasonably, and comply strictly with laid down procedures while acting in their official capacities so that their actions will be deemed legal and to refrain from using excessive force.  

The test for reasonableness is said15 to be an objective one and should be left to the absolute and unregulated discretion of the arresting officer. The standard of reasonableness will therefore be met if the ingredients of the criminal offence can be identified in the circumstance facing the police to necessitate the arrest. An arrest which does not meet the test of reasonableness will ipso facto be an unlawful arrest. The test of reasonableness must be constructed to safeguard personal liberty16

 Asante v The Republic17 highlights the importance of strict compliance with the legal procedure provided. In this case, an officer sought to “invite” the accused to the police station but refused to disclose the reason the accused’s presence was needed there. The accused, who was unwilling to go along with him, forcefully resisted. The court opined that if the police were desirous of exercising their legal power to arrest, they should have strictly complied with the provisions related to arrest, namely, telling the accused the true grounds of arrest. 

To satisfy the reasonable grounds for an arrest, the acts for which the person is to be arrested or investigated should constitute a criminal offence18 for the arrest to be justifiable. Also, the power of arrest and detention must be used for the purpose it was granted19. In Ampofo v The State 20the police sought to arrest the appellant based on acts that did not constitute any criminal offence in existence. The court stated that there cannot be a lawful arrest relative to those facts and any such person is entitled to liberate himself from any restraint put on his liberty and freedom of movement without justification. 

It is important to note that where force or restraint must be exercised, it should not be more than what is necessary to prevent the escape of the person arrested21. Thus, in Miller v A.G22., non uniformed police officers chased and shot at two boys suspected of committing an offence. The court rejected their defence of justification on the grounds that they were making an arrest. It held that their actions constituted an unlawful arrest because a police officer is not justified in shooting or beating up any person merely because he wants to make an arrest. They were also said to have abused their position as police officers and to have committed assault and battery since the circumstances were not reasonable grounds for an arrest.

The rationale is that the personal liberty23 and human dignity24 of the person must be respected, therefore the arrest should be by due process and cause only minor interference with the enjoyment of these rights until a person is found guilty of a crime by a court of competent jurisdiction25

In the Asante case, the court affirms this principle in the following words, “The liberty of every individual is protected by the law until he acts in contravention of the dictates of the law to entitle a police or peace officer to interfere with that liberty by exercising against him the powers with which the officer is legally clothed”.

REMEDIES AVAILABLE TO PERSONS AFFECTED BY UNLAWFUL OR IMPROPER EXERCISE OF THEIR POWERS

Where the arrest does not follow the procedural requirements in law, it is irregular or unlawful and the person being arrested is entitled to act to ensure his rights to personal liberty in that material moment or to see legal redress for the improper curtailing of his rights.  

Although the law makes resistance to arrest a misdemeanour26, the person being arrested has a right to challenge their arrest and detention27. They may be justified in resisting the arrest if the police officer who is not arresting under a warrant fails to give proper notice of the fact that he is conducting an arrest or on a question of mistaken identity. Proper notice entails immediately informing the person in a language he understands the nature and detail of the offence he is to be charged with28.

In Ampofo v the state 29the court stated since the accused was never informed of the nature of the report and when he refused to go, the police had no authority to arrest him without a warrant. He was therefore at liberty to decline the invitation to go to the police station where he was not told what criminal offence he had committed. Additionally, a person may resist an arrest where no offence known under the law has been committed if the police officer is not authorised under a warrant.

Furthermore, by stating the procedure that must be followed in arresting suspects, the law provides a basis for the courts to determine the legality or otherwise of an arrest or detention30. Having a laid down procedure creates a legal right to mount an action against the police for false imprisonment31, assault32, trespass33. So that where a person can show that the proper procedures were not undertaken, he can obtain redress through monetary compensation34 or apology35 for the wrong and injuries suffered thereby. It may excuse the person arrested from liability for the necessary force used to ensure his liberty during the irregular arrest. 

RECOMMENDATIONS 

To ensure the police maintain law and order effectively they need the cooperation of the public. This is particularly so during investigations of crimes where information is needed from those who might have witnessed the commission of the crime. Where this cooperation is lacking, it is an indication that the public perceives the police force as untrustworthy and not committed to the interests of the public36

One of the ways this perception may be created is when the police arbitrarily exercise their powers of arrest. This may occur when their powers of arrest are used outside of criminal matters, for instance detaining a person for a civil debt. They may also exceed their limits by using excessive force while arresting or investigating. 

To raise public trust and confidence in the police, the public should be educated about the instances where the police can exercise their powers of arrest and inform them of the options available when the police exceed their mandate. Additionally, where police officers exceed the ambit of their powers in the quest to carry out official duties, they should be made to bear the legal brunt of their actions to serve as a deterrent for other members of the force. This will go a long way in bolstering the fact that the rights granted to persons under the Constitution can only be curtailed in the lawful exercise of authority.  

CONCLUSION 

 To arrest and detain an individual is to restrict his freedom of movement and in essence his right to personal liberty. Given that these rights are fundamental, any restriction in its enjoyment should be legally justifiable. An arrest must be conducted according to procedural requirements for it to satisfy the legal justification for interference.  

  1. ARTICLE 58 OF THE 1992 CONSTITUTION OF GHANA ↩︎
  2. ARTICLE 200 OF THE 1992 CONSTITUTION, Criminal Investigation Department – cid. Ghana Police Service. (n.d.-a). https://police.gov.gh/en/index.php/criminal-investigation-department-cid/ ↩︎
  3. For example, International Human Rights Standards for Law Enforcement. (n.d.). https://www.ohchr.org/sites/default/files/Documents/Publications/training5Add1en.pdf  ↩︎
  4. ARTICLE 13 1992 CONSTITUTION ↩︎
  5. ARTICLE 18 1992 CONSTITUTION ↩︎
  6. Chapter 5 of the 1992 CONSTITUTION  ↩︎
  7. Chapter 5 of the 1992 CONSTITUTION  ↩︎
  8. SECTION 3 OF THE CRIMINAL AND OTHER OFFENCES PROCEDURE ACT (ACT 30)  ↩︎
  9. SECTIONS 4 AND 8 OF ACT 30 ↩︎
  10. NKRUMAH V. FOLI AND ANOTHER (1983) JELR 63681 (HC  ↩︎
  11. ATTA AND ANOTHER V. AMOASI AND OTHERS (1976) JELR 69202 (CA) ↩︎
  12. ARTICLE 19 1992 CONSTITUTION ↩︎
  13. EDMUND ADDO V. THE ATTORNEY-GENERAL AND INSPECTOR GENERAL OF POLICE (2017) JELR 67169 (HC) ↩︎
  14. International Human Rights Standards for Law Enforcement. (n.d.). https://www.ohchr.org/sites/default/files/Documents/Publications/training5Add1en.pdf, AND ARTICLE 15 OF THE 1992 CONSTITUTION ↩︎
  15. SOLOMON JOOJO COBBINAH AND OTHERS V. ACCRA METROPOLITAN ASSEMBLY AND OTHERS (2017) JELR 69501 (HC) ↩︎
  16. ATTA AND ANOTHER V. AMOASI AND OTHERS (1976) JELR 69202 (CA) ↩︎
  17. ASANTE V. THE REPUBLIC (1972) JELR 65978 (HC)  ↩︎
  18. ARTICLE 19 (5) OF THE 1992 CONSTITUTION ↩︎
  19. In ATTA AND ANOTHER V. AMOASI AND OTHERS (1976) JELR 69202 (CA), the court reaffirmed the position that criminal process by arrest and detention cannot be used to extract a civil debt ↩︎
  20. AMPOFO V. THE STATE (1967) JELR 64770 (HC) ↩︎
  21. SECTION 6 OF ACT 30 ↩︎
  22. MILLER v. ATTORNEY-GENERAL JELR 85230 (HC) ↩︎
  23. ARTICLE 14 OF THE 1992 CONSTITUTION ↩︎
  24. ARTICLE 15 OF THE1992 CONSTITUTION ↩︎
  25. ARTICLES 14, 15 AND 19 OF THE 1992 CONSTITUTION ↩︎
  26. SECTION 205 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) ↩︎
  27. REPUBLIC V. ATTORNEY-GENERAL; EX PARTE QUAYE MENSAH AND ANOTHER (1987) JELR 65969 (CA) ↩︎
  28. ARTICLE 19 (2) OF THE 1992 CONSTITUTION ↩︎
  29. AMPOFO V. THE STATE (1967) JELR 64770 (HC) ↩︎
  30. NKRUMAH V. FOLI AND ANOTHER (1983) JELR 63681 (HC) ↩︎
  31. In ASANTE V THE REPUBLIC, the taking of the accused’s car keys was said to have been an assault by imprisonment  ↩︎
  32. CHRISTIE AND ANOTHER  v. LEACHINSKY (1945) JELR 80272 (HL) ↩︎
  33. AMPOFO V. THE STATE (1967) JELR 64770 (HC) ↩︎
  34. ARTICLE 14(5) OF THE 1992 CONSTITUTION  ↩︎
  35. SOLOMON JOOJO COBBINAH AND OTHERS V. ACCRA METROPOLITAN ASSEMBLY AND OTHERS (2017) JELR 69501 (HC) ↩︎
  36. Boateng, F. D. (2012). Public trust in the police: Identifying factors that shape trust in the Ghanaian police. (Doctoral dissertation, Washington State University). ↩︎
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