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ARREST TO INVESTIGATE AND ITS BAD CONSEQUENCES TO TAX PAYERS

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OVER the years we have seen a lot of lawsuit against government because of wrongful arrest. This has caused a lot of financial drain to government and therefore by extension the nation.

  The drain is through settlement of the lawsuits and or payments to the personnel that have to attend to the lawsuits and defend them. Can this be avoided without compromising the work of the investigating department? What can be done to achieve that?


The basic principle is that investigators (or anyone with the powers to arrest) must not arrest to investigate. Instead the investigators must investigate and then arrest after investigation. I know that the police, who are usually the investigators in our country, will say that it is what they do. But the question will arise, but why so many lawsuits emanating from unlawful arrest?

What is it that is done wrongly to attract this? The resources used here could go a long way in providing services to the suffering public. But I have to state here that the police are doing a good job in some instances but they need to improve on this as it will water down their efforts.


Before the police (used interchangeably with investigating officer) arrest a suspect, there must be probable cause. Probable cause means there must be enough evidence to indicate that the suspect has committed the crime for which he or she is arrested for.

That is to say the suspect is more likely than not to have committed the crime. Mere suspicions that the person has committed a crime do not suffice as probable cause. This, however, is not to say that there should be absolute certainty that the suspect did commit the crime. The investigating officer only has to be able to point to objective circumstances leading him or her to believe that a suspect committed a crime.


To guard against the arrest without probable cause, the police have to obtain an arrest warrant before they effect an arrest.  The arrest warrant will be issued by a judicial officer after there has been presentation of evidence of probable cause in a hearing. This procedure then helps as a filter or to make sure that chances of a wrongful arrest are minimised.


This will mean the police will have to investigate and take the evidence to a prosecuting officer who will look at the evidence and be convinced that indeed there is probable cause to arrest. This officer will draft the presentation of the evidence before a judicial officer. The judicial officer will look at the evidence and listen to the presentations and then decide that indeed there is probable cause. It is then that the judicial officer will issue or allow a warrant of arrest to be issued. So it is the judicial officer who has the last word on whether probable cause exists. It is not what the investigating officer believes that  establishes probable cause.


Going through this process may have great advantages because, the investigator is so involved in the investigation that he or she may not be objective enough in the decision he or she takes. Yet the prosecuting officer will be objective in going through the evidence presented to him or her. Further, as the officer that will be prosecuting the case, he or she must be sure that the evidence before him or her is sufficient to secure a conviction. The prosecuting officer will then take the matter further to the judicial officer who will also have to be convinced that indeed there is a case to be answered by the suspect. 


The establishment of probable cause is important to the investigating officer because even if the suspect is acquitted, the finding by a judicial officer that there is probable cause shields the police from lawsuits. There is, however, an exception to this procedure and the investigating officer may arrest without a warrant. One of those exceptions is when the offence is committed in the presence of the investigating officer.


I will have to point out that the process is cumbersome but it is my opinion that it is worth going through it. One reason I believe so is that it will reduce the loss of taxpayers’ money in settling lawsuits or time spent defending such suits yet they should be prevented in this process. The problem though is that we hardly use the same process unless of course it is the cases that are done by the Anti-Corruption Commission. We have heard of cases where the judicial officers of the country have refused to issue warrants of arrest because they are not convinced that there is probable cause.


This also assists the investigating and prosecuting departments from wasting time prosecuting what is a non-existent cases. But in most cases this does not happen. The investigator arrests without the evidence having been looked at by the prosecuting officer or a judicial officer and lawsuits then follow. Costly settlements or trials then follow yet this can be prevented. May be our Parliament must take this up with the investigating and prosecuting department to prevent public money lost in lawsuits. 

 

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