Nutty Grandad
27th March 2008, 11:28
I got this News24 article off facebook...really helpful!
Cops and your rights
20/03/2008 12:34 - (SA)
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2290163,00.html (http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2290163,00.html)
Verashni Pillay
Cape Town - What do you do if you're arrested at a roadblock? Or if police use force in a drug raid, like the one at Stellenbosch pubs earlier this month?
Knowing your rights can help if you're in a tricky situation with the police. This Human Rights Day News24 asked three legal experts; Joshua Mendelsohn, Richard Calland and Chris Oxtoby to take us through a few scenarios.
Scenario 1: Arrest at a roadblock
If someone is stopped at a roadblock by metro police and found to have outstanding traffic fines, are they allowed to be arrested?
There is a recent line of cases brought against the Minister of Police which have found, based on Constitutional rights, that arrests in situations where they are clearly unnecessary is wrongful.
The cases suggest that where a suspect does not represent a danger to society and is not likely to abscond, arrest is inappropriate.
So the simple answer seems to be that they could be arrested, but the arrests could be challenged on the basis of constitutional rights, should one have the resources and inclination to do so.
Can they insist on seeing a warranty for arrest first?
Yes, if the arrest was effected by a warrant. The Criminal Procedure Act (CPA) requires that the arresting officer, at the time or immediately after effecting the arrest, inform the person arrested the cause of the arrest, or hand them a copy of the warrant.
What are their rights in this situation?
S35(1) of the Constitution provides for the following:
The right to remain silent; The right to be informed of that right as well as the consequences of not remaining silent; Not to be compelled to make a confession of admission that could be used against them; To be brought before a court within 48 hours (or before the end of the first court day after the 48 hours expire, if the person is arrested on the weekend); At the first court appearance, to be charged, or informed of the reason for continued detention, or released; To be released if the interests of justice permit, subject to reasonable conditions (ie bail). The CPA also provides that an arrested person must be informed of their right to institute bail proceedings.
Is one entitled to a call after getting arrested in order to call a lawyer?
A person has a right to legal counsel from the moment of arrest, and practically this entails being allowed to telephone a lawyer.
If they are arrested even if it is a violation of their rights and taken to jail, what actions should they then take?
Practically, they should phone a lawyer and/or ask for so-called 'police bail' - the CPA permits a police officer of the rank of non-commissioned officer or above to release a person on bail on payment of an amount determined by the police officer.
Note however that those arrested for offences above a certain level of severity - such as murder, arson, robbery - are denied this option.
How does 'police bail' work?
After a person has been arrested and taken to a police station, a police officer can release the person on their paying to the officer a sum of money. The Officer is permitted to grant such bail in the case of less serious offences such as possession of less than 115 grams of marijuana.
Is there such a thing as an on-the-spot payable fine upon admission of guilt for a minor offence, and if so how is this not to be confused with a bribe?
If a person is arrested, they will be taken to a police station and possibly granted police bail. There is no provision for the arrested person to pay an admission of guilt fine in the time immediately after arrest.
Once they're released what recourse to justice do they have?
Assuming the arrest to have been unlawful, one would have a damages claim, and should contact a lawyer to assist you in bringing such a claim. If one wanted to lay a complaint against the police, there is a SAPS ombudsman - details can be found on the SAPS website, www.saps.gov.org. However the latter option will not provide monetary compensation.
What information and details should they make a note of in such a situation?
Factors such as the degree of force used in effecting the arrest, whether a warrant was shown, whether the person was informed of their rights on arrest, whether they were permitted to contact a legal representative, the name and rank of the arresting officer, the police station to which they were taken, any case number they are given, the time of the arrest, and any reason they are given for the arrest, could be useful in laying a complaint or bringing a damages claim subsequent to the arrest.
Scenario 2: Drug raids
Recently police allegedly brutalised students and others during drug raids at pubs in Stellenbosch. Are police allowed to physically harm people while conducting a drug raid? Can they hit them and push them to the floor?
S29 of the CPA requires a search to be conducted in a "decent and orderly manner". However, it is important to be aware of S27 of the CPA, which allows the police to use "such force as may be reasonably necessary" to overcome any resistance to a lawful search.
If faced with a situation in which the police are aggressive, it is best to be as co-operative as possible to avoid inflaming the situation further. Should the police use excessive force, one would always have the possibility of bringing a damages claim against them for any harm suffered beyond the scope of a lawful search.
Can someone request a policeman's name?
There is no provision giving an express right to be informed of a police officer's name.
Uniformed officers will, in any event, usually have their names displayed on a badge on the front of their uniforms. While it may inflame the situation - and one must be careful to assess the situation first - there is nothing to preclude asking for the name, rank and station number of the officer or officers.
It may be good tactic to start to take notes to record the precise events and conversations. The police will be aware of the potential evidential weight of such note-taking.
Scenario 3: House search
Are police allowed to enter one's house? Under what circumstances and what should you request to see if police claim to be authorised to enter your house?
The Constitution provides for a right to privacy, including the right not to have one's home or property searched, or one's possessions seized. However, the South African Constitution does permit rights to be limited in appropriate circumstances. The CPA allows for articles to be seized under the authority of a search warrant, which would have to be issued to the police by a Magistrate. One could therefore legitimately request to see a warrant.
Who can one call if not certain if police are acting under proper authorisation?
One could call a lawyer, or the station commander of the police officers effecting the search. One should note again that police are entitled to use necessary force to overcome resistance to a search.
Scenario 4: Male/female searches
What kind of searches are allowed by security guards and police, in terms of males searching females?
The CPA expressly provides that a woman may only be searched by a female police officer, or a woman designated to do the search by a police officer.
It is also practice that men and women are kept in separate holding cells.
Any other comments on being aware of one's human rights?
By asserting your rights you are helping to build a culture of human rights. In the United States and elsewhere, the conduct of the police and other state authorities has been moderated, in general, by people from all walks of life showing that they are aware that they have rights and asserting them when the situation demands it.
Richard Calland is an associate professor of Public Law and Chris Oxtoby a researcher at the Democratic Governance & Rights Unit at the University of Cape Town. Joshua Mendelsohn is a researcher from the UCT Criminal Justice Department.
Cops and your rights
20/03/2008 12:34 - (SA)
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2290163,00.html (http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2290163,00.html)
Verashni Pillay
Cape Town - What do you do if you're arrested at a roadblock? Or if police use force in a drug raid, like the one at Stellenbosch pubs earlier this month?
Knowing your rights can help if you're in a tricky situation with the police. This Human Rights Day News24 asked three legal experts; Joshua Mendelsohn, Richard Calland and Chris Oxtoby to take us through a few scenarios.
Scenario 1: Arrest at a roadblock
If someone is stopped at a roadblock by metro police and found to have outstanding traffic fines, are they allowed to be arrested?
There is a recent line of cases brought against the Minister of Police which have found, based on Constitutional rights, that arrests in situations where they are clearly unnecessary is wrongful.
The cases suggest that where a suspect does not represent a danger to society and is not likely to abscond, arrest is inappropriate.
So the simple answer seems to be that they could be arrested, but the arrests could be challenged on the basis of constitutional rights, should one have the resources and inclination to do so.
Can they insist on seeing a warranty for arrest first?
Yes, if the arrest was effected by a warrant. The Criminal Procedure Act (CPA) requires that the arresting officer, at the time or immediately after effecting the arrest, inform the person arrested the cause of the arrest, or hand them a copy of the warrant.
What are their rights in this situation?
S35(1) of the Constitution provides for the following:
The right to remain silent; The right to be informed of that right as well as the consequences of not remaining silent; Not to be compelled to make a confession of admission that could be used against them; To be brought before a court within 48 hours (or before the end of the first court day after the 48 hours expire, if the person is arrested on the weekend); At the first court appearance, to be charged, or informed of the reason for continued detention, or released; To be released if the interests of justice permit, subject to reasonable conditions (ie bail). The CPA also provides that an arrested person must be informed of their right to institute bail proceedings.
Is one entitled to a call after getting arrested in order to call a lawyer?
A person has a right to legal counsel from the moment of arrest, and practically this entails being allowed to telephone a lawyer.
If they are arrested even if it is a violation of their rights and taken to jail, what actions should they then take?
Practically, they should phone a lawyer and/or ask for so-called 'police bail' - the CPA permits a police officer of the rank of non-commissioned officer or above to release a person on bail on payment of an amount determined by the police officer.
Note however that those arrested for offences above a certain level of severity - such as murder, arson, robbery - are denied this option.
How does 'police bail' work?
After a person has been arrested and taken to a police station, a police officer can release the person on their paying to the officer a sum of money. The Officer is permitted to grant such bail in the case of less serious offences such as possession of less than 115 grams of marijuana.
Is there such a thing as an on-the-spot payable fine upon admission of guilt for a minor offence, and if so how is this not to be confused with a bribe?
If a person is arrested, they will be taken to a police station and possibly granted police bail. There is no provision for the arrested person to pay an admission of guilt fine in the time immediately after arrest.
Once they're released what recourse to justice do they have?
Assuming the arrest to have been unlawful, one would have a damages claim, and should contact a lawyer to assist you in bringing such a claim. If one wanted to lay a complaint against the police, there is a SAPS ombudsman - details can be found on the SAPS website, www.saps.gov.org. However the latter option will not provide monetary compensation.
What information and details should they make a note of in such a situation?
Factors such as the degree of force used in effecting the arrest, whether a warrant was shown, whether the person was informed of their rights on arrest, whether they were permitted to contact a legal representative, the name and rank of the arresting officer, the police station to which they were taken, any case number they are given, the time of the arrest, and any reason they are given for the arrest, could be useful in laying a complaint or bringing a damages claim subsequent to the arrest.
Scenario 2: Drug raids
Recently police allegedly brutalised students and others during drug raids at pubs in Stellenbosch. Are police allowed to physically harm people while conducting a drug raid? Can they hit them and push them to the floor?
S29 of the CPA requires a search to be conducted in a "decent and orderly manner". However, it is important to be aware of S27 of the CPA, which allows the police to use "such force as may be reasonably necessary" to overcome any resistance to a lawful search.
If faced with a situation in which the police are aggressive, it is best to be as co-operative as possible to avoid inflaming the situation further. Should the police use excessive force, one would always have the possibility of bringing a damages claim against them for any harm suffered beyond the scope of a lawful search.
Can someone request a policeman's name?
There is no provision giving an express right to be informed of a police officer's name.
Uniformed officers will, in any event, usually have their names displayed on a badge on the front of their uniforms. While it may inflame the situation - and one must be careful to assess the situation first - there is nothing to preclude asking for the name, rank and station number of the officer or officers.
It may be good tactic to start to take notes to record the precise events and conversations. The police will be aware of the potential evidential weight of such note-taking.
Scenario 3: House search
Are police allowed to enter one's house? Under what circumstances and what should you request to see if police claim to be authorised to enter your house?
The Constitution provides for a right to privacy, including the right not to have one's home or property searched, or one's possessions seized. However, the South African Constitution does permit rights to be limited in appropriate circumstances. The CPA allows for articles to be seized under the authority of a search warrant, which would have to be issued to the police by a Magistrate. One could therefore legitimately request to see a warrant.
Who can one call if not certain if police are acting under proper authorisation?
One could call a lawyer, or the station commander of the police officers effecting the search. One should note again that police are entitled to use necessary force to overcome resistance to a search.
Scenario 4: Male/female searches
What kind of searches are allowed by security guards and police, in terms of males searching females?
The CPA expressly provides that a woman may only be searched by a female police officer, or a woman designated to do the search by a police officer.
It is also practice that men and women are kept in separate holding cells.
Any other comments on being aware of one's human rights?
By asserting your rights you are helping to build a culture of human rights. In the United States and elsewhere, the conduct of the police and other state authorities has been moderated, in general, by people from all walks of life showing that they are aware that they have rights and asserting them when the situation demands it.
Richard Calland is an associate professor of Public Law and Chris Oxtoby a researcher at the Democratic Governance & Rights Unit at the University of Cape Town. Joshua Mendelsohn is a researcher from the UCT Criminal Justice Department.