Can police arrest without warrant?

There are instances where the public agitates about arrests without a warrant.

The question for discussion in this article is whether a police officer can arrest without a warrant.

As law students at the Gambia Law School, Banjul, and the Ghana School of Law, Ghana, we examine this based on the Ghanaian and Gambian jurisdictions. 

We also examine the objective test of arrest without a warrant. 

Gambia jurisdiction

An arrest can be effected either with a warrant or without a warrant. In the case of the Gambia, police officers, judicial officers, and private persons are empowered before the law to effect an arrest without a warrant.

Also, members of the Gambia National Guard and the National Intelligence Agency are clothed with the powers of arrest without a warrant.

Section 15 of the Gambian Criminal Procedure Code (CPC) Act. 26 of 1933, provides the road map and grounds for arrests without a warrant by any police officer or any order from the magistrate. 

Ghanaian jurisdiction

Now turning to the Ghanaian jurisdiction, section 10 of the Criminal Procedure Code of Ghana (Act 30) gives the power to the police to arrest without warrant.

But the suspicion must be reasonable; in other words, the grounds for the suspicion must be reasonable to justify the arrest.

The common law principle in Christie v. Leachinsky is codified under Act 30 in Ghana and states that a police officer has a right to arrest, without warrant, any person whom he reasonably suspects of having committed a felony, although no crime has in fact been committed.

Objective test

In both jurisdictions, concerning an arrest without a warrant, the objective test is paramount.

In the Nigerian case of Chukwuka v Commissioner of Police (1964) NNLR 21, the court reasoned that: “The objective test is not what the police officer himself regards as reasonable but whether the facts within the knowledge of the policeman at the time revealed circumstances from which it could be reasonably inferred that the appellant had committed an offence”.

The Ghanaian court in the case of Solomon Joojo Cobbinah and others v. Accra Metropolitan Assembly and others [(2017) HR/238/2015] also sets out the test to determine the reasonableness of an arrest by the police without warrant as follows; “The test for reasonableness cannot be subjective; it must be objective.”

Also, in the Nigerian case of Jackson v Omorokuna(1981) 1 NCR 283, where the plaintiff was arrested because he was unable to explain to the policeman the whereabouts of his ignition key and could also not produce documents to confirm the ownership of the motorbike.

The court held that the arrest was lawful.  

In the case of Wiltshire v Barret (1965) 2 ALL ER 271, the Appeal Court reasoned that the arrest was lawful, as the police officer had to act at once.

On the facts as they appear on the spot and should be justified by the facts as they appear to them at the time and not any expost facto analysis of the situation.

In the Ghanaian case of Miller V. Attorney-General [1975] 2 GLR 31-45, the court making reference to the dictum of Scott L.J in the case of Dumbell v. Roberts [1944] 1 All E.R. 326, C.A. At p. 329, was of the view that, the power possessed by police officers to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanors or offences, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community.

Also a police officer, after arresting a suspect, does not have to take the suspect straight to the police station.

In Dallison v Caffery (1964) 2 ALL ER 610, the court held that the police officer was not liable for damages for false imprisonment for taking the appellant first to his house to search for stolen money and then to a friend’s house to confirm an alibi before taking him to the police station.

In conclusion, the police in both jurisdictions, have been empowered to arrest with or without a warrant.

However, for arrest without a warrant, the test that has to apply is the objective test.

He or she must act without passion or prejudice. 

The writers are law students at the Gambia Law School, Banjul, and Ghana School of Law, Accra, Ghana.  

E-mail: professor40naturopathy@gmail.com