Arrest, search, seizure and safeguards against unlawful detention
This domain is examined through scenarios: a warrantless search, a caution statement obtained after hours of questioning, a suspect held without a station diary entry. The examiner wants the source of the power, the limit on it, and the consequence of breach.
Arrest
- With warrant: issued by a court on complaint or information, identifying the accused and the offence, executed by showing the warrant where practicable.
- Without warrant: police may arrest on reasonable suspicion of an arrestable offence, to prevent escape, or where an offence is committed in the officer's presence; a private citizen's power is narrow and confined to serious offences.
- On arrest: inform of grounds, caution the suspect, record the arrest in the station diary, and produce the suspect in court within 48 hours.
Search and seizure
- Article 18(2) protects the privacy of home, property, correspondence and communication; interference must be in accordance with law and necessary in a free and democratic society.
- Premises: a warrant is the norm. Exceptions include consent, hot pursuit, search incident to a lawful arrest, and specific statutory powers such as narcotics and firearms legislation.
- Persons: a search incident to arrest is permitted for weapons and evidence; more intrusive searches need proper authority and propriety.
- Seizure: items must be relevant to the investigation; issue a receipt or inventory; preserve the chain of custody; apply to court for disposal or forfeiture.
Safeguards
Caution in the familiar terms; right to silence and to counsel; no 'verballing'; confessions must be voluntary, tested on voire dire. A retracted confession is admissible but is scrutinised closely and, as a matter of practice, the court looks for corroboration.
Worked example
Police receive an anonymous tip that Kofi keeps stolen phones at home. They enter without a warrant while he is out, search, and seize three phones. There is no statutory power on these facts, no consent, no hot pursuit: Article 18(2) is breached. But the phones are real evidence, and a Ghanaian court is not bound to exclude them automatically; the court retains a discretion. Defence strategy: attack the search in cross-examination, demand disclosure of the search record (there is none), argue unfairness, and pursue a complaint. If the phones are the only evidence, the breach strengthens a no-case submission only if the court accepts a fairness-based exclusion.
Traps that cost marks
- Assuming exclusion of evidence is automatic upon an illegal search.
- Advising a client to resist arrest physically.
- Failing to obtain or demand the seizure inventory and chain of custody.
- Confusing the moment of arrest with the moment of arrival at the station for the 48-hour computation.