Jevinder Singh compares the police powers of arrest in Malaysia and the UK and comes with some frank observations.
A police officer’s duty is to combat crime and provide protection to the citizens of the country. In order to carry out their duties well, they are granted certain powers. The most fundamental power given to them as police officers is the right to arrest. Arrest is the “restraint of a man’s person, obliging him to be obedient to the law and defined to be the execution of the command of some court of record or officer of justice” (Krishnan, 2008). Police officers are not allowed to abuse their power by simply arresting whoever they want because there are certain fixed guidelines as well as fundamental liberties granted to us as citizens. They will require proper grounds to take someone into custody for them to be able to conduct further investigations and to strengthen their case over the accused or suspected offender.
An arrest has to be done in line with the law of Malaysia because Article 5 of the Federal Constitution of Malaysia states that personal freedom is part of a citizen’s fundamental liberties and the Federal Constitution is the highest source of law in Malaysia. Malaysia has its own Criminal Procedure Code (CPC) that is used to govern the arrest procedure. There are two types of arrest which are known as an arrest with warrant and an arrest without warrant. An arrest without warrant is also known as a “seizable offence”. The third column of the First Schedule to the CPC shows that offences under the Penal Code which are punishable with imprisonment of three years and above are seizable offences. This means that the police may just arrest you without a warrant for any offence in violation of the Penal Code. An example would be theft. According to the Penal Code, the crime of theft is a seizable offence under s 379. section 23 of the CPC provides power to police officers to arrest without a warrant under certain circumstances. section 23(1)(a) is often the provision used by judges when deciding on a case. section 23(1)(a) states that the “police without an order from a Magistrate and without a warrant of arrest may arrest any person who has been concerned in any offence committed anywhere in Malaysia which is a seizable offence under any law in force in that part of Malaysia in which it was committed or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned”. In the case Tan Eng Hoe v AG, the claimant was arrested mistakenly for a fraud case because he matched the description of the actual offender. He then sued for wrongful arrest but Whitley J held that a reasonable man would have thought he was the offender due to the similarities. The police were justified for arresting him without a warrant. According to Sidhu (2008), “credible information” means that the information received by the police has to be reliable. A plain allegation without any other concrete evidence is not considered to be credible information. In Hashim bin Saud v Yahaya bin Hashim & Anor, an electricity generator was stolen and a report was lodged. The plaintiff was arrested as instructed by the first defendant, Inspector Yahaya without a warrant after information was given by an informant about a stolen cement mixer. The plaintiff then took action against the defendants for wrongful detention but Harun J held that the information that was given by the plaintiff had proven to be reliable and credible in the past. Therefore, the arrest of the plaintiff without a warrant was proven to be lawful.
A “non-seizable offence” is an offence where police officers are only allowed to arrest you with a warrant according to the third column of the First Schedule to the CPC. Therefore, a police officer is not allowed to arrest without a warrant if the punishment of the offence is less than three years. That being said, if there is any written law that states an offence is seizable even though the punishment is less than three years imprisonment is therefore seizable under the principle of generalia specialibus non derogant. This latin phrase means that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision (US Legal, n.d.).
Section 15(1) of the CPC states the procedure to arrest and remand. Under section 15(1), there are three ways a police officer may arrest you. Police may arrest by touching the body of the person to be arrested, confining the body of the person to be arrested or where there is submission to custody by word or action. In the appeal case of Shaaban & Ors v Chong Fook Kam & Anor, the Privy Council had the case to consider what elements constitute a valid arrest. Devlin LJ said that, “An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.” A police officer stopping someone to make an enquiry is therefore not considered an arrest (Sidhu, 2008).
The Federal Constitution of Malaysia grants Malaysians certain rights when it comes to police arrest. According to Article 5(3), as soon as someone is arrested, they must be notified of the grounds of the arrest. In the case of Christie & Anor v Leachinsky, the House of Lords explained that an arrested person must be informed of the reason of the arrest instantly. After which if the reason is withheld, the arrest as well as the imprisonment would amount to false imprisonment. Hence, the police officer that arrested the person would be held liable for false imprisonment. Besides that, according to Article 5(4) of the Federal Constitution, a person that is arrested must be presented to a Magistrates Court without any unreasonable delay within 24 hours excluding the travel time. The arrested cannot further remain in police custody without a Magistrate’s order. Under section 28(A) of the CPC, an arrested person has rights to be informed the basis of his arrest as soon as may be, a right to contact a legal practitioner within 24 hours of the arrest, rights to communicate with a relative or a friend to notify about his whereabouts within 24 hours of the arrest, as well as to be able to contact a lawyer. The lawyer is allowed to be present at the location of detainment before the police officers proceed with their questioning or recording of statements from the person arrested.
In the United Kingdom (UK), no written constitution exists. Instead, the UK uses a compilation of statutes, conventions, judicial precedents and treaties which form the British unwritten constitution. The British Constitution can be described in eight words: “What the Queen in Parliament enacts is law.” (Ucl Constitution, n.d.) What this means is that decisions made in Parliament with the power of the Crown cannot be challenged by anyone, making Parliament the most supreme in the UK. In the UK, there are three categories of lawful arrest — arrest under warrant, arrest without warrant under common law, and arrest without a warrant under statute. If a person claims that he had been wrongfully arrested and detained under statute and if he can prove it, he is entitled to damages as stated in the Police and Criminal Evidence Act 1984 (PACE), s 34; Criminal Justice (Scotland) Act 1980 (Barnett, 2011).
The UK has the PACE and the accompanying codes of practice which assist them in providing the core context of police powers and safeguards around stop and search, arrest, detention, investigation, identification and interviewing detainees. Code G of the PACE code is the code of practice for the statutory power of arrest by police officers. The power of arrest must be used fairly, responsibly, with respect for people suspected of committing offences and without unlawful discrimination as stated in s 1.1 of Code G. The Elements of Arrest under s 24 of the PACE states that a lawful arrest requires two elements. The first is to arrest a person, there must be an involvement, suspected involvement or attempted involvement in the commission of a criminal offence and also reasonable grounds for believing that person is worthy of an arrest. Both of these elements have to be fulfilled for an arrest to take place and nobody can ever be arrested without any reasonable grounds. In the case of Hough v Chief Constable of Staffordshire, the police officer that carried out the arrest got the information from the police national computer. This was in fact wrong. However, the court held that there was reasonable suspicion.
Section 1(1) of the Magistrates’ Courts Act 1980, states that a warrant for arrest can only be issued if the person is suspected of having committed an offence. The warrant is issued after a written submission by a police officer has been verified on oath by a magistrate. It must identify the suspect and the offence that the suspect had committed. In the case that the police officer does not have the warrant at his disposal, he is allowed to carry out the arrest first but he is obligated to present the warrant before the person arrested as soon as possible in accordance to the Magistrates’ Courts Act 1980, section 125(3). Once the warrant is issued, a police officer is allowed to search the premises and surroundings to make an arrest. The officer may use reasonable force if deemed necessary.
As mentioned earlier, the UK can arrest a person without warrant under the common law. That being said however, an arrest without a warrant under the common law can only be carried out if there is reasonable grounds for suspicion that a breach of the peace is about to occur or has been committed and is likely to continue or to reoccur. If a breach of peace has occurred, but has come to an end, the power to arrest ceases. In Bibby v Chief Constable of Essex Police, a bailiff had gone to the premises of a debtor under a liability order issued by a magistrate’s court to seize assets. The debtor however retaliated and threatened to call his friends to prevent the seizure of his assets. A police constable was called to the scene. Fearing a breach of peace, he ordered the bailiff to leave. He arrested the bailiff when he refused to leave with handcuffs and took him to the police station but was released without any charge. The bailiff sued the constable for assault and wrongful imprisonment. The Court of Appeal held that the bailiff was acting lawfully. Neither the arrest nor the use of handcuffs was justified. The same verdict was held in Redmond-Bate v Director of Public Prosecutions.
The police can also arrest without warrant under statutes. The police powers of arrest under the PACE are based on the concept of the importance of the offence in question. Sections 110 and 111 of the Serious Organised Crime and Police Act 2005 (SOCPA), however, amend these powers. Section 110 provides a replacement for section 24 of the PACE. The power of arrest without a warrant for an ‘arrestable offence’ is replaced with the power of arrest without warrant for an ‘offence’ (Barnett, 2011). Under the new section 24(1), a constable has the power to arrest without a warrant in relation to anyone who is about to commit and offence, anyone who is in the act of committing and offence, anyone whom he has reasonable grounds of suspicion of being about to commit an offence and anyone he has reasonable grounds for suspecting to be committing an offence. A failure to give reasons for the arrest would make it unlawful. In Christie v Leachinsky, the House of Lords ruled that a person must be notified of the grounds of arrest, although it is not necessary to be done if the situation is obvious and if it is difficult to communicate with the arrested person.
While the law is objective, it can be viewed from a subjective point of view. I feel that there can be rooms of improvement and amendments that can be done to make it more effective. I personally feel that the power granted to the police to arrest without warrant is a breach of privacy. Reasonable suspicion is not reliable and it differs from everyone’s point of view. There have been many cases where reasonable suspicion has panned out the wrong way as well proving it to be unreliable and not concrete enough to bring justice. Besides that, I feel that the rights of the person arrested should be upheld at all times, and it is upheld and protected more in the UK compared to Malaysia. The best example would be the case of A. Kuhan. He was a suspected car thief who died while in police custody. According to media reports at that time, the death of Kuhan was the 126th death under police custody in the past 10 years. The police owe the people they arrest a duty of care. If everyone who is arrested gets treated like Kuhan and the other 125 who died, the public will lose faith in the police force, which is rather ironic since they are the ones who are supposed to safeguard us.
Besides that, the arrest of the innocent people who participated in the Bersih rallies clearly proves that the police in Malaysia do abuse their power. In the Federal Constitution, Article 10 provides Malaysians with freedom of speech, assembly and association. Yet the police intervened and arrested many innocent and harmless people, as well as beat them up. The CPC states that a use of reasonable force is allowed. Based on video evidence that has since circulated through the internet, it is evident that it was not “reasonable force” that had been administered. Firing tear gas and shooting water cannons at citizens who are fighting and upholding justice for their own country is an inhumane thing to do. The police are part of the executive body in the separation of powers in Malaysia. Their duty is to implement the law, but it is evident that there is abuse to the power granted to them.
To sum everything up, it can be said without a shadow of a doubt that the law in the UK preserves the rights of the citizens of the UK as well as actively providing the police with a more than sufficient amount of power to carry out their duties, which is to provide a safe environment for the citizens and to ensure that their safety is not at jeopardy. As Malaysians, we should fight for our rights and not sit back and relax. John F. Kennedy once said, “The rights of every man is diminished when the rights of one man is threatened.” I hold those words in very close regard to our current situation now. I hope that amendments can be made and justice be served to everyone. If this continues, the country will be affected in more ways than you can imagine in time to come. In the wise words of Hunter S. Thompson, “We cannot expect people to have respect for law and order until we teach respect to those we have entrusted to enforce the laws.”
Featured image from The Guardian
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