Subject 4.2 Flashcards
What are the requirements for a lawful arrest?
1.Arrest must be properly authorised
2.Arrester must exercise physical control over the arrestee
3.Inform the arrestee of reasons for his arrest or if the arrest is by way of a warrant then a copy of the warrant must be handed to the arrestee>sec 39(2)
4.Arrestee must be taken to appropriate authorities >sec 50- arrestee must be taken to a police station/ place identified in the warrant
What is an arrest with a warrant?
A written order directing the person described in the warrant to be arrested by a peace officer and brought before a lower court ito sec 50
What are the requirements for issuing a warrant of arrest?
A magistrate/justice of peace may issue a warrant upon written application of a DPP, PP, Police officer- Application contains:
1.offence alleged to be committed
2.jurisdiction within which the offence was committed
3.confirm on oath that the person sought in warrant did commit the offence
> A warrant is valid until it is executed/cancelled by the person who issued it
A warrant issued in one district is valid in all othe districts throught the republic
Who may execute a warrant?
A warrant may be executed by a peace officer.
Peace officer= Magistrate, justice of peace, polcie official,member of correctional services and a person declared to be a peace officer ito sec 334.
According to the Sekhoto case , must arrester determine if there are less infringing ways to get person before court?
a. If offence is relatively serious → there is no requirement that arrester must consider less intrusive way to get person under arrest before court
b. If arrester fails to determine less intrusive way to effect arrest → still amounts to lawful arrest
Who can peace officers arrest without a warrant according to sec 40?
Any person:
1.who commits/attempts to commit an offence in his presence
2. who is reasonably suspected of commiting a schedule 1 offence or escaping lawful arrest
3.who is found with a housebreaking implement
4.in possession of stolen property
5. in possession of stolen produce/stock
6. who obstructs him in the execution of his duties
What are the 3 categories of people who must provide their name and address to a police official ito sec 41?
1.Person whom they have the power to arrest
2.Person who is reasonably suspected of having committed/attempting to commit an offence
3.Person who can give evidence in regards to the commission of an offence
Which people may a private person arrest without a warrant according to sec 42?
Any private person may without warrant arrest any person
(a) commits or attempts to commit in his presence a Schedule 1 offence;
(b)he reasonably believes to have committed any offence and to be escaping from and pursued by a person whom such private person easonably believes to have authority to arrest that person
(c) he is by any law authorized to arrest without warrant in respect of any offence specified in that law;
(d) whom he sees engaged in an affray.
(3) The owner, lawful occupier or person in charge of property on which any person is found committing any offence
How do Neighbourhood Watches effect an arrest?
NW are deemed to be private persons and sec 42 applies to them
* NW who stands in position of a lawful occupier can arrest a person
* NW can use force to affect arres
* NW must inform suspect of reasons for arrest
* NW has power to trespass anothers property to arrest an escaping suspect
* NW can break open and search premises to conduct an arrest but must 1st audibly announce the reason for their presence
* NW must hand over arrested person to police ASAP
Which other officials may affect an arrest besides peace officer?
- An environmental management inspector
- Officer of a society for prevention of animal cruelty
- An authorised person udner the Civil Aviation Act
What does sec 50 provide for regarding the total period in which a person may be detained by police?
A person may be held by police after their arrest for a period of 48hours thereafter they must either be brought before a lower court or released
How is the accused brought before court if the 48 hour period expires ito sec 50?
- Where suspect is arrested after ordinary court hours they must appear on next court day/48 hours after initial arrest
- Where suspect is arrested on a weekend they must appear the following weekday
- Where a suspect cannot appear because of injury/illness the 48hours expires on the 1st day he is physically fit to attend court
- if accused is in detention+in transit to a specific jursi area the 48 hr period expires on the next court day in the followig juris area
What is the sec 47 duty to arrest?
Every male between the ages of 16 to 60 when called upon by police to do so must assit in affecting an arrest and failure to offer assistance is punishable by a fine or 3 months imprisonment
When may deadly force be used to affect an arrest according to sec 49?
the arrestor may use deadly force only if
(a) the suspect poses a threat of serious violence to the arrestor or any other person
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm + there are no other reasonable means of effecting the arrest
What are the requirements for the use of force when making an arrest?
- Arrested person must have committed an offence/reasonably suspected of committing an offence
- Arrester must be lawfully entitled to arrest the suspect
- Arrester must attempt to arrest the suspect
- Arrester must have intention to arrest+ not punish the suspect
- Suspect must attempt to escape/ressist
- No other reasonable means to arrest the suspect
How does extradition operate as a form of arrest?
States are not obligated to extradite criminals and an obligation to extradite only comes into being by way of an agreement
* Extradition is only granted for serious offences in which the offence is a crime in both states
* A person is not extradited for a politcal crime
* Extradition is refused if the crime is punishable by death sentence for the state requesting extradition
What is the difference between deportation and extradition?
- Deportation is performed unilaterally+extradition is consenusal
- Deportation is aimed at the removal of an undesirable person from the state+Extradition is related to a crime committed in the extraditing country
- Purpose of deportation is met as soon as the alien leaves the deporting state territory+ extradition is aimed at justice
What are the principles for arrest with a dog?
- Defendent faces liability for injury caused by the dog when effecting an arrest
- use of a dog=use of force
- circumstances must be reasonably necessary to justify using a dog
- use of a dog cannot be deemed to be minimum force
What did the Singo case state regarding warrants for absent accused persons?
Court may issue a warrant of arrest for an absent accused if they are satisfied that the accused is indeed absent by 1st calling the accused’s name 3 times thereafter the accused is brought before court and if justified they are convicted and sentenced
What did the Coetzee and Sekhoto cases state regarding if the arrester must use a less infringing way to arrest?
If an offence is relatively serious there is no requirement that the arrester must consider a less intrusive way to bring the arrested person before court
-if the arrester fails to determine a less infringing way to effect an arrest the arrest is still lawful
