The power of arrest vested in the police has been exercised in a somewhat erratic manner recently. This has had the unintended effect of causing confusion in the mind of the public. The arrest of former Minister Sithanen further confounded the confusion. The Prime Minister has reacted responsibly when he expressed his concern and promised to have a review of the law. Whilst not departing from the fact that each case must be decided in the light of its own merits, the exercise of any discretionary power, as was argued last week, has to be judicious and based on established criteria if the person vested with the power wants to be credible and enjoy the respect of those who are affected by his decision. In this present case the Commissioner of Police has every reason to enjoy the confidence of the general public.
The arrest of an individual is a serious matter as it deprives the person of his personal liberty guaranteed by section 5 of the Constitution. Indeed section 5(1) of the Constitution provides that no person shall be deprived of his personal liberty save as may be authorized by law, inter alia upon reasonable suspicion of his having committed, or being about to commit a criminal offence, or upon reasonable suspicion of his being likely to commit breaches of the peace, in execution of an 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 order.
Section 5 goes further in that it offers protection to a person who has been subject of an unlawful arrest by providing that the person unlawfully arrested shall be entitled to compensation. Article 9 of the International Convention for Civil and Political Rights of which Mauritius is a signatory similarly provides for compensation in the event of illegal arrest.
There are in addition judicial safeguards against the arbitrary arrest of a person. In any event any person arrested must be brought without undue delay before a court of law whose function is to ascertain that the deprivation of liberty is in accordance with the law.
In the case of Dahoo V Commissioner of Police 2007 SCJ 156, the court reminded the Commissioner that “even where there is power to arrest, it must not be exercised as a matter of course: the discretion to arrest must be exercised in a reasonable manner”.
Take for instance section 134 of the Road Traffic Act, which deals with the powers of arrest in relation to a road traffic accident. The section reads : “A police officer may, without warrant, arrest the driver of a motor vehicle found or reasonably suspected of having committed an offence under… section 123 B…”. Now section 123B concerns cases where “a person causes the death of another person by driving a motor vehicle dangerously on a road… having regard to all the circumstances of the case including condition and use of the road, the amount of traffic…”
Therefore it stands to reason that when a fatal accident has occurred the police must consider all factors to decide whether there has been prima facie a breach of section 123 B. That implies, firstly, that death has occurred as a result of the accident and, secondly, having regard to all the circumstances of the case it can be said that the accident occurred as a result of dangerous driving. If all these conditions are indeed present, the police officer may proceed with the arrest of the driver without warrant.
In a case where there is clear evidence of dangerous driving, the arrest of the driver would be amply justified. But let us, for argument’s sake, take the case of the suicidal pedestrian who all of a sudden throws himself on the road in front of an approaching car and dies as a result of the impact. To start with, it cannot be argued that there was dangerous driving. It is clear that, having regard to all the circumstances of the case, the driver of the car was not at fault.
Section 123 B would not have been satisfied and the power vested in the police under section 134 of the Road Traffic Act would not apply. Yet the police in all cases of fatal accidents indiscriminately arrest the driver of the motor vehicle. This is unlawful. The Commissioner of Police may be sued for compensation in such circumstances. But the trouble of that unfortunate driver does not stop there. Once the arrested driver is brought before a Court, the police may ask for a prohibition order to be issued as a matter of routine. Such an order curtails the freedom of movement of that person and can be a source of inconvenience and prejudice.
It is high time the police reviews their exercise of discretion when arresting citizens. In an era where hardcore pornography flows at the click of the button from your personal mobile phone or laptop, it is baffling that persons get arrested for using the F-word or the G-word in the course of a heated conversation. The earlier the wish of the Prime Minister is fulfilled the better for our sanity.
* Published in print edition on 25 June 2010