Society is partly organized along a number of rigidly enforced lines. For instance, certain constitutional powers are jealously guarded and reserved for particular bodies only. Thus, the policymaking power is entrusted to the Cabinet solely; the legislative power to Parliament and the Governor General acting as Her Majesty’s representative; and the judicial power to those who have been so appointed according to law.
However, there may be some exception to this assignation of roles in some respects. So that while the constitutional deprivation of liberty of the citizen on a criminal charge is reserved to the courts of the land, it is possible to resolve a civil dispute by alternative means of resolution such as conciliation, mediation and arbitration.
Likewise, while the power of arrest may be legally conferred by statute on the police, it is generally accepted that the common law also empowers the citizen sometimes to restrain the freedom of movement and personal liberty of another in certain circumstances without any insult to the detainee’s constitutional rights in either respect.
Hence, while section 21(1) of the Constitution provides that “No person shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Barbados…”, section 21 (2) qualifies this to the extent that “…any restriction on a person’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section”.
Similarly, section 13 (1) states that “No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases…” One of those cases authorized by law is to be located within s. 13 (1)(e), that is, “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Barbados…”
So long as a detention is lawful, a private citizen may arrest an individual, although this entitlement is limited to the circumstance where the arrestee is in the act of committing an indictable offence or is reasonably suspected of having committed such an offence. The power of arrest upon reasonable suspicion that an individual is about to commit a criminal offence is confined to members of the police force solely.
So as to preclude a rampant vigilantism, other restrictions have been grafted onto the civilian power, one such being that the person making the arrest has reasonable grounds to believe that that the arrest is necessary to prevent the person being arrested from making off before an officer can assume responsibility for him or her.
What has engendered this unsolicited lecture on the citizen’s power of arrest, my readers may be asking. It is because on no fewer than three occasions within the past six months, twice in Antigua & Barbuda and most recently in Barbados last week, citizens have taken it upon themselves to effect the arrest of individuals whom they reasonably suspect of having committed criminal offences.
In March, in Antigua, a group of residents of a community held and tied up a man whom they alleged had attempted to attack a woman with a cutlass.
The Police spokesman cautioned rightly, “regardless of how much you think you may or would have assisted or prevented or averted a particular situation from happening, it must be something that, at the end of the day, can stand up in the court”.
This is sound advice, especially since the private citizen must also establish that the alleged offence was indeed committed, even if not by the arrested person himself or herself. In an old case, Sir Rufus Isaacs CJ commented that even if the offence “were not committed by (the arrested person) but by some person else, yet if (the citizen) hath probable causes to suspect (the arrested person) to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because (sic) if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.”
And last Monday, in the same jurisdiction, a private citizen placed an air rifle to an individual’s head until the police arrived. He had suspected the arrested man of having stolen his motor vehicle. Again the police reaction was one of caution. One former Commissioner of Police there noted, perhaps in too broad a formulation, “every citizen has an obligation to assist in the apprehension or prevention of crime”, although he also issued a warning against the citizen’s arrest becoming “the order of the day”.
Barbados, it appears, has not been slow to have its own experience. Last Wednesday, it was reported in another section of the press that a local civilian pounced on a man he claimed had assaulted his (the arrester’s) daughter and held him in a headlock until police arrived.
There was no immediate comment from the local police spokesman on the matter, but the law here is identical to that in Antigua. Practically, any intervention may be accompanied by the use of reasonable and appropriate force and the arrested person must be given some idea of why he or she is being arrested. The arrester should, where possible, also effect it in the presence of witnesses so as to avoid later credible allegations of assault by the victim of the arrest. Moreover, the citizen is not entitled to carry out investigations into the offence while detaining the individual.
It seems to me that in the interest of good order, there is much force in an argument that the citizen’s power of arrest should be limited to those cases where the offence is being committed in plain sight only. However, the common law, as has been stated, is too firmly fixed to be overthrown by a side-wind (Lord Denning MR, 1951) and the citizen’s arrest will therefore remain a part of our law until removed by statute.