Law on arrest is complex and technical and many may not understand when he is under arrest and when under arrest, what should he do next and also what the arresting officer should do during and after arrest made. It is an area of law where liberty and live of persons are fundamental and are protected under Article 5(1) of the Federal Constitution and also under relevant laws.

When stopped by a police officer in a public place or while driving and you are at that moment prevented to go anywhere, the first question that you need to ask is “Am I under arrest?” A police officer has no power simply to stop and detain a person simply just to ask a question. If an officer detains a person who walks away after refusing to answer questions then it is likely this will amount to false imprisonment if the detention is based on nothing more than this – Samuels v. Commissioner of Police of the Metropolis (1999) 3 March, unreported. You may not be aware that at that moment you were already been put under arrest by the police officer arresting you. If doubtful, the best thing is to ask the police officer whether you were under arrest by him.

A police officer, although has power of arrest, cannot simply put a person under arrest. If he wants to arrest you, he must at that moment of arrest, as required by section 23(1)(a) of the Criminal Procedure Code, be possessed with reasonable complaint, or credible information or upon reasonable suspicion that you have committed or been concerned with a seizable offence under the law. Meaning that, not in all offences that an arrest could be made, unless the officer is armed with a court warrant. However, there are also instances where a police officer can arrest you although you may not be so concerned with a seizable offence.

When executing an arrest, you can also be handcuffed, but, is it a must that you be handcuffed? There is no decision yet on this issue that handcuffing is a must each time a person is arrested, but, it could be an exercise of excessive force when a person is handcuffed, especially, when the person submits to the arrest and that circumstances show that the person arrested never intended to escape from custody of the police officer. In UK, handcuffs can only be used when it is reasonably necessary to prevent an escape, or to prevent a violent breach of the peace by the prisoner – Lockley [1864] 4 F & F 155. For the practice relating to handcuffing in UK, see Home Office Consolidated Circular to the Police on Crime and Kindred Matters (1977) para 4.65   

After arrest, the police officer can always release you on bail or may just let you off, if the police officer, later on after investigation or queries conducted, is satisfied that you did not commit the crime that you had been suspected or complained of. If no investigation or queries made after arrest, the arrest and detention can be an act of mala fide, that is, the arrest and detention was made in bad faith.

If the police officer has reasons that you should be detained for purpose of facilitating police investigation into an alleged crime of which you had been suspected to have been involved, the police office can always detain you in the police station, but, not exceeding 24 hours from the time of arrest, unless he obtained an order of detention or remand under section 117 of the Criminal Procedure Code or under the relevant law.

Are you helpless when under arrest? Can you challenge the legality of the arrest even if there was a warrant of arrest? Yes! Your lawyer can always advise you whether the warrant of arrest was lawfully obtained and or lawfully been issued or whether the arrest was lawful, properly executed in accordance with procedures laid down by the law and whether the police officer had exceeded his power of arrest. The police officer when effecting arrest, could not use any force that is more than necessary during the arrest. Any arbitrary or unreasonable use of force in the execution of arrest will be unlawful and you can take step to sue the police officer and the government for damages.

Your liberty is precious and is a fundamental right and your liberty is protected under Article 5(1) of the Federal Constitution. Under the Federal Constitution, the police officer arresting or detaining you, must as soon as possible inform you in ordinary language in which you can understand that you are under arrest and that he is arresting or detaining you. When put under arrest or being detained, you are entitled to ask reasons why you are arrested and where he shall bring you to be detained. The police officer must also tell you even not asked, the reasons he was arresting you.

As soon as you are put under arrest, you have every right to remain silent and you have a privilege not to incriminate yourself. In the case of Leary v. United States 396 US 6(1969) where a professor was charged in court for a drugs case, the Supreme Court of the United States ruled that there is privilege against self-incrimination. It should be noted that guided by this case, the right of silence is a right against self-incrimination and may be protected by Article 5(1) of the Federal Constitution because a person’s life and liberty could not in our adversarial system of justice, be taken away “save in accordance with law”. In adversarial system of justice, it is for the prosecution to prove the case against you and not for you to supplement the prosecution evidence by way of incriminating yourself.

It is the duty of the police officer, if you are not released after being put under arrest, to immediately bring you to nearest police station. He could not bring you on a sight-seeing journey or detain you in his house, take a bath, have food before sending you to a police station. This will tantamount to unlawful detention and you can always sue for damages based on this. Under the law, the police officer could not also refuse your request to inform a relative or friend that you are under arrest and also a right to inform a lawyer to defend you. You can insist your lawyer to meet and talk to you, but, not in the hearing of police officers before the police can start to question you or to record a statement from you. However, under exceptional circumstances, the police officer can also delay your lawyer to see you. These rights are now also been entrenched in section 28A of the Criminal Procedure Code which came into force since September, 2007.

Under the Federal Constitution, you also have a fundamental right to be represented by a lawyer of your choice. You should not allow the police officer to choose a lawyer for you and neither the police officer has the right to choose a lawyer for you.