Standard Operating Procedures for Arrest and Detention
Background
- Emanating from various consultative sessions which primarily aimed at reducing the number of incidence of civil claims through sustainable professional practice. Therefore, this necessitated Division: Visible Policing to develop a Standard Operating Procedure (SOP) for arrest and detention.
- A need was identified to standardise the way in which lawful arrest must be effected, when and how.
Purpose
- The aim of this instruction is to regulate the manner for effecting an arrest and the detention of persons. Police officials should note that an arrest may only be executed when authorised by law. Where an arrest is authorised without a warrant, the police official concerned is granted the discretion to arrest a person. A police official is therefore not compelled to make use of his/her powers to arrest. To do so, the police official must consider carefully what he/she wishes to accomplish by arresting the person.
- The effect of an arrest is that the arrested person is taken into lawful custody until he/she is lawfully discharged from custody. If a police official exceeds the provisions of the authorising legislation or the Constitution, the arrest is unlawful.
- General rule: As a general rule, the object of an arrest is to secure the attendance of such a person at his or her trial. A member may not arrest a person in order to punish, scare or harass such person.
Definitions and interpretations
In this instruction, unless the context indicates otherwise:
- “arrest” can be defined as depriving a person of his/her rights of freedom for the purpose of bringing him/her before court;
- “suspect” means a person reasonably suspected of having committed an offence; and
- “member” means a member of the South African Police Service appointed in terms of the South African Police Service Act, 1995 (Act No 68 of 1995), and includes a member of the South African Reserve Police Service, while such member is on duty in the Service.
Regulatory Frame Work
The Constitution of the Republic of South Africa, 1996
The Criminal Procedure Act, 1977 (Act No 51 of 1977)
The South African Police Service Act, 1995 (Act No 68 of 1995)
Standing Order (General) 341 - Arrest and Treatment of an Arrested Person until such Person is handed over to the Community Service Centre Commander
National Instruction 2 of 2002 - Search and Seizure
National Instruction 2 of 2010 - Children in Conflict with the Law
National Instruction 6 of 2014 - The Prevention and Combating of Torture of Persons
National Instruction 1 of 2016 - The Use of Force in Affecting an Arrest
National Instruction 8 of 2016 - Medical Treatment and Hospitalization of a Person in Police Custody
Requirements for Lawful Arrest
For an arrest to be lawful, the following requirements must be complied with:
- The arrest with or without a warrant must have been properly authorised.
- The member who makes an arrest must exercise physical control over the person who has been arrested.
- The person who has been arrested must be informed of the reason for his or her arrest and of the rights that he or she has as an arrested person, in terms of section 35(1) of the Constitution of the Republic of South Africa, 1996.
- The arrest must be recorded in the member’s Pocket Book, together with the fact that the arrested person was warned in terms of his/her constitutional rights.
- The person who has been arrested must be brought to an appropriate place as soon as possible i.e. to the police station or if he or she was arrested on a warrant of arrest, he or she must be taken to the place specified on the warrant.
- The person who executed the arrest must compile an arrest statement. The original arrest statement must be filed in the case docket or attached to the J534, while a copy must be submitted to the CSC Commander for filing.
Manner of Effecting an Arrest
- General Rule - Arrest with a Warrant
- An arrest should preferably be effected only after a warrant for the arrest has been obtained in terms of section 43 of the Criminal Procedure Act, 1977.
- In order to obtain a warrant of arrest a member must in writing apply to a magistrate or justice of the peace for the issuing of a warrant in terms of section 43 of the Criminal Procedure Act, 1977. A copy of the application must be filed in the docket.
- Once a warrant for the arrest of a person has been issued to a member, any member may execute such warrant. It is not necessary for the warrant to be executed by a particular member.
- Arrest without a Warrant
- It is only in exceptional circumstances where a member is specifically authorised by an Act of Parliament e.g. Section 40 and 41 of the Criminal Procedure Act, 1977 to arrest a person without a warrant. Any arrest without a warrant, which is not specifically authorised by law, will be unlawful.
- Section 40 (2) of the Criminal Procedure Act, 1977, determines that if provision is made in a statute for a member to arrest a person without a warrant, subject to certain conditions or to the provision or the existence of certain circumstances mentioned in the Criminal Procedure Act, 1977, those conditions must be present and those circumstances must exist before the arrest is made.
- Section 14 of the Criminal Procedure Act, 1977, provides that a member may call upon any person -
- whom he or she reasonably suspects of having committed any offence or having attempted to commit any offence; or
- whom may, in his or her opinion, be able to give evidence in regard to the commission or suspected commission of any offence, to furnish his or her full name and address.
- If the person referred to in paragraph (c), fails to furnish his or her full name and address, or the member reasonably suspects that a false name or address has been given, the member may forthwith arrest him or her. In the event that the person refuses to furnish his or her name and address, or furnishes a false name or address, such person is guilty of an offence and should be charged with the offence in the normal manner. All such information must be recorded in the member’s Pocket Book, as well as in the arrest statement.
- (3) Physical Execution of an Arrest
- Exercise of physical control The member must confine the freedom of movement of the arrested person. Section 39 of the Criminal Procedure Act, 1977, determines that, unless the person who has been arrested submits to custody, an arrest is effected by actually touching his or her person or, if the circumstances so require, by forcibly confining his or her person. Under such circumstances, the relevant information must be recorded in the member’s Pocket Book, as well as in the arrest statement. Furthermore, the member must be clear on how he or she has administered force and whether the arrested person sustained any injuries, as well as a description of the injuries.
- Amount of force which may be used in effecting arrest
- As a rule, there should be no need for the use of force, and in every case where it may be necessary, only such force as may be reasonably necessary to overcome resistance to the arrest may be used. No justification whatsoever exists for beating, kicking or otherwise ill-treating an arrested person and there is no excuse whatsoever for a member to act in this manner. Any member found guilty of an offence as a result of the use of force while effecting an arrest where the use of such force cannot be justified must expect to be dealt with severely.
- Section 49 of the Criminal Procedure Act, 1977, provides for circumstances where the use of force by a member towards a person who is resisting arrest or fleeing from arrest, may be justified (for further information, refer to the instructions relating to the Use of Force in effecting an arrest set out in National Instruction 1 of 2016). Commanders must ensure that all members are trained properly in this regard and that members are always in possession of the necessary equipment (eg handcuffs, baton, pepper spray, etc) when on duty.
- Information that must be furnished to a person upon arrest
- In terms of section 35(1) of the Constitution, 1996, the information that must be furnished to a person at the time of or immediately after his or her arrest is as follows:
- The reason for his or her arrest.
- That he or she has the right to remain silent and that anything that he or she says may be used as evidence against him or her in a court of law.
- That he or she has the right to consult with a legal practitioner of his or her choice or that he or she may, if he or she so prefers, apply to Legal Aid South Africa to have a legal practitioner assigned to the case at state expense.
- That he or she has the right to apply to be released on bail.
- Section 39 of the Criminal Procedure Act, 1977, requires that the person who effects an arrest must, at the time of effecting an arrest or immediately thereafter, inform the person who has been arrested of the reason for his or her arrest. It is not necessary to use the actual words of the charge - mentioning the offence would be sufficient. If the arrest took place by virtue of a warrant, a copy of the warrant must, upon his or her demand, be handed to the person who has been arrested.
- The information in subparagraph (a) must be furnished to the arrested person in a language which he or she understands. For this purpose, the said information is printed on the first pages of the Pocket Book (SAPS 206) in all eleven official languages. To ensure that a person is fully informed of these rights, the arresting member must read this information from the Pocket Book to the arrested person in a language which the arrested person understands.
- If a member -
- is unable to establish what language the person understands, or
- cannot speak the language that the person understands, the member must read this information in English. In such a case, the member must, upon his or her arrival at the police station, inform the Community Service Centre Commander to ascertain what language the person understands in order to convey the information to the person in that language. A Pocket Book entry, as well as an Occurrence Book must be made to this effect. The Community Service Centre Commander must make an Occurrence Book entry when information is conveyed to the arrested person, mentioning in which language and by whom.
- Should a person volunteer any statement on arrest or prior to being formally charged at the Community Service Centre, he or she must, once again, be informed of his or her rights as set out in subparagraph (a).
- In terms of section 35(1) of the Constitution, 1996, the information that must be furnished to a person at the time of or immediately after his or her arrest is as follows:
Procedure after arrest
- Recording of the facts that the arrested person has been informed of his or her rights
- A member who arrests a person must, as soon as possible after having furnished the information in paragraph 6(4)(a) above, to the arrested person, record in his or her Pocket Book the fact that the information was so furnished.
- The member must request the arrested person to acknowledge that he or she has been informed of his or her rights and that he or she understands the contents thereof, by signing next to the recording in the Pocket Book, referred to in paragraph (a).
- If the arrested person refuses to sign in the Pocket Book, a third person (whether a civilian or another member) who witnessed the person being informed of his or her rights, must be requested to sign next to the recording to certify that he or she has witnessed this and that the arrested person refused to sign. If a third person is not available, the member must make a recording in the Pocket Book to the effect that a third person was not available to certify that the arrested person was informed of his or her rights and that the arrested person refused to sign the Pocket Book.
Presumption of innocence
- An arrested person has the right to be presumed innocent until proven guilty by a court of law. A member who arrests a person must therefore, at all times, control him or herself and must never allow his or her belief in the guilt of the arrested person to move him or her to treat the arrested person in a manner which would amount to punishing the person for what the member believes that the person has done.
- Even though an arrested person must be presumed to be innocent, a member must do everything which may legally be done in order to obtain evidence which could be presented in court to prove the guilt of the arrested person. A member must also take every precaution necessary in the circumstances to ensure that the person is not allowed any opportunity to escape.
Arrest and detention of children
- A child should only be arrested as a last resort and, if arrested, should only be detained for the shortest possible time.
- A member, who is authorised to arrest a child in terms of the Child Justice Act, 2008 (Act No 75 of 2008) and National Instruction 2 0f 2010, may decide not to arrest the child, but rather to have the investigation completed and the docket referred to the prosecutor to decide whether the child should be prosecuted or not, and if so, to have a summons issued to secure the attendance of the child at a preliminary inquiry.
- In considering whether the child should be arrested or whether the investigation should be completed and the docket referred to the prosecutor to decide whether the child should be prosecuted and to have a summons issued, a member may consider any information that may be contained in the Diversion Register. The Diversion Register is maintained by the Department of Social Development and contains information on children’s criminal cases that have been diverted. This information may assist the member in deciding whether it would be appropriate in the circumstances, bearing in mind the information obtained from the Diversion Register, to arrest the child or to rather follow the summons route.
Arrest and detention procedure of transgender persons
All arrested persons must be detained in terms of Standing Order (General) 361.
However, the following additional principles apply in respect of transgender persons:
- All transgender persons should be detained in separate detention facilities at the police station where the person was arrested. An Occurrence Book entry must be made to this effect.
- In the event of a separate detention facility not being available at the police station where the arrest was effected, the transgender person must be transported and detained at an identified detention facility within the specific cluster.
- An arrested transgender person must be recorded in the gender column of the Custody Register (SAPS14) with a red pen as “T”.
- All searches must be conducted in terms of Section 29 of the Criminal Procedure Act, 1977 (Act No 51 of 1977) with strict regard to decency.
- A member must determine from the transgender detainee in a sensitive manner what his or her sex gender is.
- The member must explain to the detainee that a biological male person will be searched by a male police official and a biological female person will be searched by a female police official;
- The member will proceed to conduct the search in a decent manner having due regard for the status of the person;
- Transgender persons should not be subjected to unnecessary undressing and in the event a transgender person needs to be subjected to an intimate search, the provisions of Standing Order (General) 361 paragraph 11(2) must be complied with. It states as follows:
- An intimate search may only be authorised by a Station Commander if he/she has reasonable grounds to believe that a person in custody has concealed a dangerous weapon on his or her person; that such a person has concealed on his or her person an article which may afford evidence of the commission of an offence; or that such person has concealed on his or her person an article which may be used in attempt to affect an escape.
- An intimate search must be conducted by a registered medical practitioner or a registered nurse.
- Station Commanders must ensure that mechanisms are put in place to ensure compliance with instructions in this regard.
- Station Commanders must compile Station Orders with the assistance of Legal Services to address the specific circumstances of the station with the view of ensuring that effect is given to these instructions.
- Cluster Commanders are to ensure that designated detention facilities referred to above are put in place.
- All officers who visit stations should give specific attention to ensure compliance with these instructions.
Arrest Statements
- As soon as is reasonably possible after arrival at the police station. The member who made the arrest must complete an Arrest Statement (SAPS 3M(i)).
- An Arrest Statement must be completed after the arrest of every suspect by the member who made the arrest. If the arrest was made by someone other than a member, the member to whom the arrested person was handed, must complete the statement. In such an event a statement must also be taken from the person that effected the arrest.
- The instructions printed at the beginning of the Arrest Statement (SAPS 3M(i)), must be strictly adhered to.
- After the Arrest Statement has been completed, it must be filed under part “A” of the case docket. In the event that no docket has been opened or is not readily available, the arrest statement must be kept in an “Arrest Statements” file at the Community Service Centre for this purpose.
- A copy of every Arrest Statement must be made and kept in the “Arrest Statements” file at the Community Service Centre in sequence according to the SAPS 14 (Custody Register) numbers. Relief Commanders and other commanders must compare this file with the SAPS 14 when visiting cells to ensure that no person is detained in the cells without an Arrest Statement being completed.
B-Crimes
- As a general rule, the object of an arrest is to secure the attendance of such a person at his or her trial. A member must rather use an alternative method to secure the attendance of such a person at his or her trial, and the current practice at many stations to arrest persons unnecessarily, even sometimes in order to punish, scare, or harass such persons, is unacceptable and must be stopped with immediate effect.
- In light of the above, it is therefore not necessary to record the particulars of a suspect in the Custody Register (SAPS 14) when a J 534 is issued to such a person.
- Where a member has indeed decided to make an arrest as a result of a Bcrime (petty offence) which was committed in his or her presence and detained the person in the holding facilities at the police station, the accused must be released on a J 534 as soon as possible and without any unnecessary delay. The only reason to detain such a person should be to verify his or her address when the member reasonably suspects that such a person furnished a false name or address. This provision must not be seen as an excuse by members to detain a person unnecessarily and for a longer period than is necessary.
Conclusion
- An arrest constitutes one of the most drastic infringements of the rights of a person. The rules that have been laid down by the Constitution, 1996 (Act No. 108 of 1996), the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and other relevant legislation, concerning the circumstances when a person may be arrested and how such person should be treated, must therefore, be strictly adhered to.
- Non-compliance with these instructions will be considered as serious misconduct and commanders are instructed to investigate and take appropriate disciplinary steps in cases of non-compliance in terms of the South African Police Service Discipline Regulations.
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