The power to arrest is subject to important safeguards

Every police officer channels some of the state’s most coercive powers. One of these powers is the power of arrest. With little warning, you can be whisked out of your home, away from your loved ones, to a cold and crowded holding cell, to await the judgment of a magistrate. Because arrest is so intrusive, it is subject to important safeguards. Now is as good a time as any to remember them, especially given recent headlines.

The basics: a police officer may arrest you only in terms of the Criminal Procedure Act and the Constitution, and only in two ways: with a warrant, or without a warrant.

Only a magistrate or a judge may issue a warrant of arrest, and only after application by a prosecutor. One may only be issued if there is a reasonable suspicion that you have committed a crime. A police officer may then arrest you on the strength of the warrant.

A police officer may also arrest you without a warrant. Because judicial oversight is absent, the power may only be exercised in certain circumstances: most notably, if the police officer reasonably suspects that you have committed a serious crime, or if you commit any crime in the police officer’s presence.

At first blush, these powers seem broad. For example, a warrant may be issued for your arrest for any crime, no matter how trivial. But these powers are limited in important ways.

First, the point of an arrest is to bring an accused to justice. This means that a police officer cannot arrest you to frighten or harass you, to punish you, to force you to abandon your right to remain silent, or, say, because a powerful politician wishes to force you out of office.

The same applies when a prosecutor applies for a warrant. If she does so under false pretences or for corrupt political purposes, the warrant is legally impotent and the prosecutor is liable to pay damages.

The second limitation is that arrest should be a last resort, precisely because it is such a serious limitation of freedom. After all, an arrest is not the only way to bring you to court to stand trial. Another way is through a summons, which is a written notice to appear in court on a particular day. If the police know where you live, or there is little chance that you will abscond or interfere with your case, or if the crime is a minor one, or if the matter is not urgent, you should be issued a summons rather than be arrested. And if you fail to obey the summons, you can then be arrested.

If the police have not arrested you, or if you are not subject to a summons, you generally are not obliged to co-operate with the police in their investigation. You are not obliged to answer questions. You do not have to present yourself at the police station to give a so-called ‘warning statement’ (something that has been emphasised by lawyers, and notwithstanding incorrect arguments to the contrary). Of course, you might have a moral obligation to co‑operate (if, for example, this would bring a criminal to justice or if it would end a futile investigation) but it is not a legal obligation.

Even if you are arrested, you are not required to answer police questions. Broadly speaking, a court may not use your silence against you if you are eventually tried. 
This was the case under the common law, and it has been partially entrenched in section 35 of the Constitution. Again, answering might be the right thing to do, but the law does not require it.

The choice not to co-operate with the police is not the last refuge of the lawyered-up scoundrel. It is not the smoke that evidences the fire. It is a foundation of constitutional democracies everywhere, a basic ingredient of innocence before guilt is proven, and a bulwark against the excesses of mob and state. It is a celebrated part of the decisive break the Constitution makes with the apartheid police state. And it is the same with checks on arrest powers.