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Report No. 152

5.4. Formal and informal arrest.-

There has been considerable amount of discussion as to when an arrest takes place, a discussion which seems to have become necessary because of the practice adopted by police officers of "detaining, for inquiries" or "stopping and frisking" and the like. In an appeal from Malaysia,1 Lord Delvin stated the position thus:

"An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct, he makes it clear that he will, if necessary use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries."

In another case (in the House of Lords),2 Lord Diplock expressed himself as under:-

"Arrest is a continuing act; it starts with the arrest or taking a person into custody (by action or words restraining him from moving anywhere beyond the arrestor's control), and it continues until the parson so restrained is either released from custody, or having been brought before a Magistrate, is remanded into custody by the Magistrate's judicial act."

1. Shabban Bin Hussain v. Chong Fook Kam., (1969) 3 All ER 1626 (PC).

2. Holgate Mohd. v. Duke, (1984) 1 All ER 1054 (1056) (HL).



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