SR Balgopal

Powers of arrest: Misapprehension of the law by the Police?

— SR Balgopal 

A cursory reading of “faits divers” in daily newspapers will leave the impression that some members of the Mauritian Police Force would sometimes exercise their powers of arrest without a judicious use of the discretion which one might expect when dealing with such a fundamental right as the right to liberty. Before we delve into this issue of the judicious use of powers of arrest by police officers, it is apposite to consider the status of the right to liberty in the Mauritian context. Section 3 of the Constitution confers an entrenched status to the right to liberty and enshrines it as a fundamental right. Section 3, dealing with “Fundamental rights and freedoms of the individual”, provides that:

“It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms –

(a)    the right of the individual to life, liberty, security of the person and the protection of the law;

(b)    freedom of conscience, of expression, of assembly and association and freedom to establish schools; and

(c)    the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation,

and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.” 

Having illustrated the fundamental nature of the right to liberty in our Constitution, we may now consider the circumstances in which an individual may be deprived of his personal liberty. Section 5 of our Constitution, the supreme law of the land, provides that:

“(1)   No person shall be deprived of his personal liberty save as may be authorised by law –

(a)    in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Mauritius or elsewhere, in respect of a criminal offence of which he has been convicted;

(b)    in execution of the order of a court punishing him for contempt of that court or of another court;

(c)    in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law;

(d)    for the purpose of bringing him before a court in execution of the order of a court;

(e)    upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;

(f)     in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare;

(g)    for the purpose of preventing the spread of an infectious or contagious disease;

(h)    in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community;

(i)     for the purpose of preventing the unlawful entry of that person into Mauritius, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Mauritius or the taking of proceedings relating thereto;

(j)     upon reasonable suspicion of his being likely to commit breaches of the peace; or

(k)    in execution of the order of the Commissioner of Police, upon reasonable suspicion of his having engaged in, or being about to engage in, activities likely to cause a serious threat to public safety or public order.”

In view of the above, it is patently clear that powers of arrest given to the police have to be used with the greatest caution as the use of these powers constitute a derogation from the right to personal liberty. Honourable Balancy, Judge, has in a landmark judgment, Dahoo v The State 2007 SCJ 156, clearly rung the alarm bells in relation to the indiscriminate use of powers of arrest by police officers but it would appear that his words have fallen on deaf ears. Thus, in the case of Dahoo v The State 2007 SCJ 156, the Court analysed section 5 of our Constitution in the following terms:

“Section 5 of our Constitution lays down that no person shall be deprived of his personal liberty save as may be authorised by law in certain specified circumstances. To arrest someone is to deprive him of his liberty by virtue of one of the exceptions provided. It follows that the burden of showing the applicability of one of the derogations to that fundamental right must fall on the person invoking that derogation. To satisfy that burden, the person responsible for the arrest must invoke the precise law, falling under the derogation, under which the power to arrest was exercised, and must show that there was a proper exercise of that power.”

The Court further provided guidance to the effect that:

 “We indeed feel it appropriate to draw to the attention of the police and of their legal advisers that even where there is a power to arrest, it must not be exercised as a matter of course: the discretion to arrest must be exercised in a reasonable manner.”

Having set out the constitutional context in which powers of arrest of the police are circumscribed, it is appropriate to consider a concrete example where such powers are used, seemingly, without a proper use of discretion. One prime example is the case where a driver involved in a road traffic accident is arrested by the police following the death of a person as a result of the accident. The police, in such a case may prosecute the person under section 239(1) of the Criminal Code which reads:

“(1)   Any person who, by unskilfulness, imprudence, want of caution, negligence or non-observance of regulations, involuntarily commits homicide, or is the unwilling cause of homicide shall be punished by imprisonment and by a fine not exceeding 150,000 rupees.”

Alternatively, the police may prosecute the person under section 123B (1) of the Road Traffic Act which reads:

“123B.       Causing death by dangerous driving

        (1)    Any person who causes the death of another person by driving a motor vehicle dangerously on a road or other public place, or at a speed, or in a manner, which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road or other public place, and the amount of traffic which is actually, or which might reasonably be expected to be, on the road or public place, shall commit an offence and shall, on conviction, be liable to a fine of not less than 25,000 rupees nor more than 50,000 rupees and to imprisonment for a term not exceeding 3 years.”

Under the Road Traffic Act, section 134, reproduced below, sets out the parameters of the use of the powers of arrest. Section 134 provides that:

“134           Powers of arrest

(1)    A police officer may, without warrant, arrest –

(a)    the driver of a motor vehicle found, or reasonably suspected of, committing an offence under sections 123A, 123B, 123C, 123D, 123E, 123F and 123H; (…)”

From the above, the use of the word “may” is interesting as it indicates that police officers have the option to use their powers of arrest, without warrant, in a road traffic offence where death has ensued in a fit case. However, this power of arrest has to be used judiciously. Surprisingly, the practice seems to be that the police, whenever there is a fatal road accident case, indiscriminately arrest the driver suspected of having committed the offence. The issues which arise here are as follows:

(1)                         Does this practice constitute a lawful exercise of the powers of arrest conferred on the police?

(2)                         Can a person arrested, as a suspect, in the context of a road traffic accident claim compensation for unlawful arrest bearing in mind that section 5(5) of our Constitution provides that: “Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person.”      

(3)                         Have the police changed the practice of arresting persons involved in fatal road accidents, or other cases for that matter, since the case of Dahoo v The State 2007 SCJ 156?

(4)                         Is the Office of the DPP not duty-bound to guide the police, in the light of the pronouncement of the Supreme Court in Dahoo v The State 2007 SCJ 156, in the use of their powers of arrest in the course of an investigation in a potential criminal offence?

(5)                         Should the CP not issue guidelines as to how powers of arrest are to be used by Police officers in the light of the both our Constitutional provisions on the right to liberty and the case law on powers of arrest? 

We may, before concluding, quote yet another edifying extract from the judgment of Dahoo v The State 2007 SCJ 156, which reads:

“As rightly conceded by Counsel for the State, an arrest may be unlawful, even if the arrest was within the powers of the police, if there has been an improper exercise of such powers.”

More than four years after the Supreme Court voiced its concerns about the improper use of powers of arrest by the Police and invited the Force to use the discretion in using powers of arrest, one may legitimately ask, in view of the number of persons arrested as a matter of course in the context of fatal road accidents and other offences: Has there been any change in the indiscriminate use of powers of arrest by police officers or are police officers content to carry on with their usual practices of arresting suspects as a matter of course? 

SR Balgopal

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