Criminal Procedure And Evidence - Arrests (Ss 27-50) A. Without Warrant (Ss 27-36)

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PART VI
Arrests (ss 27-50)

A. WITHOUT WARRANT

(ss 27-36)

[Ch0802s27]27. Arrest and verbal order to arrest for offences committed in the

presence of judicial officers

(1) It shall be lawful for any judicial officer

who has knowledge of any offence by seeing it committed, himself to arrest the

offender or by a verbal order to authorize other persons to do so.

(2) The persons so authorized are empowered and

required to follow the offender if he flee, and to execute such order on him

out of the presence of such judicial officer.

[Ch0802s28]28. Arrest by peace officer for offences committed in his presence

and on reasonable grounds of suspicion as to certain offences

Every peace officer and every other officer

empowered by law to execute criminal warrants is hereby authorized to arrest

without warrant-

(a) every

person who commits any offence in his presence;

(b) every

person whom he has reasonable grounds to suspect of having committed-

(i) any

of the offences specified in the Cap. 08:01 Penal Code, other than the offences specified in such Code and the

other enactments as are set out in Part II of the First Schedule to this Act;

(ii) any

offence, other than an offence specified in the Penal Code, the punishment for

which may be a period of imprisonment exceeding six months, without the option

of a fine;

(iii) any

offence, other than an offence specified in the Penal Code, where the law

constituting that offence provides that such arrest may be made,

(c) every

person whom he finds attempting to commit an offence, or clearly manifesting an

intention to do so.

[Ch0802s29]29. When peace officer may arrest without warrant

(1) Any peace officer may, without any order or

warrant, arrest-

(a) any

person having in his possession any implement of house-breaking, and not being

able to account satisfactorily for such possession;

(b) any

person in whose possession anything is found which it is reasonably suspected

is stolen property or property unlawfully obtained, and who is reasonably

suspected of having committed an offence with respect to such thing;

(c) any

person who obstructs a policeman or other peace officer while in the execution

of his duty, or who has escaped or attempts to escape from lawful custody;

(d) any

person reasonably suspected of being a deserter from the Botswana Police Force;

(e) any

person being or loitering in any place by night under such circumstances as to

afford reasonable grounds for believing that he has committed or is about to

commit an offence;

(f) any

person reasonably suspected of committing or having committed an offence under

any law governing the making, supplying, possession or conveyance of

intoxicating liquor or of habit-forming drugs or the possession or disposal of

arms and ammunition;

(g) any

person reasonably suspected of being a prohibited immigrant in Botswana for the

purpose of any law regulating entry into or residence in Botswana;

(h) any

person reasonably suspected of being or having been in unlawful possession of

stock or produce as defined in any law for preventing the theft of stock or

produce.

(2) Whenever it is provided in any law that the

arrest of any person may be made by a police officer or constable or other

official without warrant, subject to conditions or to the existence of

circumstances specified in that law, an arrest by any peace officer, without

warrant or order, may be made of such person subject to those conditions or the

existence of those circumstances.

[Ch0802s30]30. Failure to give particulars of name and address to a peace

officer constitutes an offence

(1) A peace officer may call upon-

(a) any

person whom he has power to arrest;

(b) any

person reasonably suspected of having committed an offence; and

(c) any

person who may, in his opinion, be able to give evidence in regard to the

commission or suspected commission of any offence,

to furnish such peace officer with his full name and address.

(2) If any person fails on such demand to furnish

his full name and address, the peace officer making the demand may forthwith

arrest him; and if any such person on such demand furnishes to such peace

officer a name or address which such peace officer upon reasonable grounds

suspects to be false, such person may be arrested and detained for a period not

exceeding 24 hours until the name and address so furnished have been verified.

(3) Any person who, when called upon under the

provisions of subsection (1) or (2) to furnish his name and address, fails to

do so or furnishes a false or incorrect name or address shall be guilty of an

offence and liable to a fine not exceeding P60 or, in the discretion of the

court, to imprisonment without the option of a fine for a term not exceeding

three months.

[Ch0802s31]31. Arrest by private person for certain offences committed in his

presence

(1) Every private person, in whose presence anyone

commits or attempts to commit an offence mentioned in subparagraphs (i), (ii)

and (iii) of paragraph (b) of section 28 or who has knowledge that any

such offence has been recently committed, is authorized to arrest without warrant

or forthwith to pursue the offender; every other private person to whom the

purpose of the pursuit has been made known is authorized to join and assist

therein.

(2) Every person is hereby authorized to arrest

without warrant any other person whom he believes on reasonable grounds to have

committed an offence and to be escaping therefrom, and to be freshly pursued by

one whom such private person believes on reasonable grounds to have authority

to arrest the escaping person for that offence.

[Ch0802s32]32. Arrest by private person in case of an affray

Every private person is authorized to arrest

without warrant any person whom he sees engaged in an affray in order to

prevent such person from continuing the affray, and to deliver him over to the

police authorities to be dealt with according to law.

[Ch0802s33]33. Owners of property may arrest in certain cases

The owner of any property on or in respect to

which any person is found committing an offence, or any person authorized by

such owner, may arrest without warrant the person so found.

[Ch0802s34]34. Arrest by private persons for certain offences on reasonable

suspicion

Any private person may without warrant, arrest any

other person upon reasonable suspicion that such other person has committed any

of the offences mentioned in subparagraphs (i), (ii) and (iii) of paragraph (b)

of section 28.

[Ch0802s35]35. Arrest of persons offering stolen property for sale, etc.

Where anyone may, without warrant, arrest another

for committing an offence, he may also arrest without warrant any person who

offers to sell, pawn or deliver to him any property which, on reasonable

grounds, he believes to have been acquired by such person by means of any such

offence.

[Ch0802s36]36. Procedure after arrest without warrant

(1) No person arrested without warrant shall be

detained in custody for a longer period than in all the circumstances of the

case is reasonable; and such period shall not (subject to the provisions of

subsection (2)) unless a warrant has been obtained for the further detention

upon a charge of an offence, exceed 48 hours, exclusive of the time necessary

for the journey from the place of arrest to the magistrate's court having

jurisdiction in the matter.

(2) Unless such person is released by reason that

no charge is to be brought against him, he shall, as soon as possible, be

brought before a magistrate's court having jurisdiction upon a charge of an

offence.

(3) Nothing in this section shall be construed as

modifying the provisions of Part IX or of any other law whereby a person under

detention may be released on bail.

(4) Whenever a person effects an arrest without

warrant, he shall forthwith inform the arrested person of the cause of the

arrest.

B. WITH WARRANT (ss

37-43)

[Ch0802s37]37. Warrant of apprehension by judicial officer or justice

(1) Any judicial officer or justice may issue a

warrant for the arrest of any person or for the further detention of a person

arrested without a warrant on a written application subscribed by the Director

of Public Prosecutions or by the local public prosecutor or any commissioned

officer of police setting forth the offence alleged to have been committed and

that, from information taken upon oath, there are reasonable grounds of

suspicion against the person, or upon the information to the like effect of any

person made on oath before the judicial officer issuing the warrant:

Provided that it shall not be lawful for any

judicial officer or justice to issue any such warrant except when the offence

charged has been committed within his area of jurisdiction, or except when the

person against whom the warrant is issued was, at the time when it was issued,

known, or suspected on reasonable grounds, to be within the area of

jurisdiction of the judicial officer or justice.

(2) Every such warrant may be issued on a Sunday

as on any other day and shall remain in force until it is cancelled by the

person who issued it, or until it is executed.

(3) When a warrant has been issued for the arrest

of a person who is being detained by virtue of an arrest without a warrant,

such warrant of arrest shall have the effect of a warrant for his further

detention.

[Ch0802s38]38. Endorsement of warrants

Every judicial officer and every justice, on

production to him of a warrant or summons or other process relating to any

criminal matter issued by any other judicial officer or justice shall grant his

concurrence to it by an endorsement thereof. Thereafter the warrant, summons or

other process may be executed within the area of jurisdiction of the judicial

officer or justice so endorsing it:

Provided that, whenever there is reason to believe

that the delay occasioned by obtaining the endorsement of the judicial officer

or justice within the area of whose jurisdiction the warrant, summons or other

process is to be executed, will prevent its execution, the officer of the law

to whom it is directed may execute it, without such endorsement, in any place

beyond such area of jurisdiction.

[Ch0802s39]39. Execution of warrants

(1) Every peace officer is hereby authorized and

required to obey and execute any warrant issued by a judge of the High Court

under this Act.

(2) Every peace officer is hereby authorized and

required to obey and execute any warrant issued or endorsed by a judicial

officer or any justice of the district in which such officer has been appointed

to act.

(3) Every warrant issued by any judicial officer

or justice shall have effect and, when endorsed as provided in section 38 (if

such endorsement is necessary), may lawfully be executed anywhere within

Botswana by any peace officer.

(4) A peace officer or other person arresting any

person by virtue of a warrant under this Act shall, upon demand of the person

arrested, produce the warrant to him, notify the substance thereof, and permit

him to read it.

(5) A person arrested by virtue of a warrant under

this Act shall, as soon as possible, be brought to a police station or charge

office, unless any other place is specially mentioned in the warrant as the

place to which such person shall be brought, and he shall thereafter be brought

as soon as possible before a magistrate's court upon a charge of the offence

mentioned in the warrant.

[Ch0802s40]40. Telegram stating issue of warrant authority for execution of the

same

(1) A telegram from any officer of any court or

from any peace officer, stating that a warrant has been issued for the

apprehension or arrest of any person accused of any offence, shall be a

sufficient authority to any peace officer for the arrest and detention of such

person until a sufficient time, not exceeding 14 days, has elapsed to allow the

transmission of the warrant or writ to the place where such person has been

arrested or detained unless the discharge of such person be previously ordered

by a judicial officer:

Provided that any such judicial officer may, upon

cause shown, order the further detention of any such person for a period to be

stated in such order, but not exceeding 28 days from the date of arrest of such

person.

(2) Nothing in this section shall be construed as

derogating from the provisions of this Act or of any other law whereby a person

so arrested may be admitted to bail.

[Ch0802s41]41. Arresting wrong person

(1) Any person duly authorized to execute a

warrant of arrest, who thereupon arrests a person believing in good faith and

on reasonable and probable grounds that he is the person named in the warrant,

shall be protected from responsibility to the same extent and subject to the

same provisions as if the person arrested had been the person named in the

warrant.

(2) Any person called on to assist the person

making such arrest and believing that the person in whose arrest he is called

on to assist is the person for whose arrest the warrant was issued, and every

gaoler who is required to receive and detain such person, shall be protected to

the same extent and subject to the same provisions as if the arrested person

had been the person named in the warrant.

[Ch0802s42]42. Irregular warrant or process

Any person acting under a warrant or process which

is bad in law on account of a defect in substance or in form apparent on the

face of it, shall, if he in good faith and without culpable ignorance and

negligence believes that the warrant or process is good in law, be protected

from responsibility to the same extent and subject to the same provisions as if

the warrant or process were good in law, and ignorance of the law shall in such

case be an excuse:

Provided that it shall be a question of law

whether the facts of which there is evidence may or may not constitute culpable

ignorance or negligence in his so believing the warrant or process to be good

in law.

[Ch0802s43]43. Tenor of warrant

Every warrant issued under this Act shall be to

apprehend the person described therein and to bring him before a judicial

officer as soon as possible upon a charge of an offence mentioned in the

warrant.

C. GENERAL (ss

44-50)

[Ch0802s44]44. Assistance by private persons called on by officers of the law

Every male inhabitant of Botswana between the ages

of 16 and 60 is, when called upon by any policeman, authorized and required to

assist such policeman in making any arrest which by law such policeman is

authorized to make, of any person charged with or suspected of the commission

of any offence, or to assist such policeman in retaining the custody of any

person so arrested. Any such inhabitant who, without sufficient excuse, refuses

or fails when called upon to do so shall be guilty of an offence and liable to

a fine not exceeding P40 or, in the discretion of the court, to imprisonment

without the option of a fine for a term not exceeding one month.

[Ch0802s45]45. Breaking open doors after failure in obtaining admission for the

purpose of arrest or search

It shall be lawful for any peace officer or

private person who by law is authorized or required to arrest any person known

or suspected to have committed any offence, to break open for that purpose the

doors and windows of, and to enter and search, any premises in which the person

whose arrest is required is known or suspected to be:

Provided that such officer or private person

aforesaid shall not act under this section unless he has previously failed to

obtain admission after having audibly demanded the same and notified the

purpose for which he seeks to enter such premises.

[Ch0802s46]46. Arrest: how made, and search thereon of person arrested

(1) In making an arrest the peace officer or other

person authorized to arrest shall actually touch or confine the body of the

person to be arrested unless there be a submission to the custody by word or

action.

(2) A peace officer or other person arresting any

person under the provisions of this Part may search such person and shall place

in safe custody all articles (other than necessary wearing apparel) found on

him.

(3) Whenever a woman is searched on her arrest,

the search shall only be made by a woman and shall be made with strict regard

to decency. If there is no woman available for such search who is a police

officer or is a prison officer, the search may be made by any woman specially

named for the purpose by a peace officer.

[Ch0802s47]47. Resisting arrest

(1) Where a peace officer or other person

authorized to arrest a person (such latter person being hereinafter in this

section referred to as "the offender") endeavours to make such

arrest, and the offender forcibly resists the endeavours to arrest him, or

attempts to evade the arrest, such peace officer or other person may use all

means necessary to effect the arrest.

(2) Nothing contained in this section shall be

deemed to justify the use of greater force than was reasonable in the

particular circumstances in which it was employed or was necessary for the

apprehension of the offender.

[Ch0802s48]48. Power to retake on escape

If a person in lawful custody escapes or is

rescued, the person from whose custody he escaped or was rescued may

immediately pursue and arrest him or cause him to be pursued and arrested in

any place in Botswana.

[Ch0802s49]49. Saving of other powers of arrest

Nothing contained in this Part shall be construed

as taking away or diminishing any authority specially conferred by any other

law to arrest, detain, or put any restraint on, any person.

[Ch0802s50]50. Saving of civil rights

Nothing contained in this Part shall, except as is

otherwise expressly provided, be construed as taking away or diminishing any

civil right or liability of any person in respect of a wrongful or malicious

arrest.