Article 15 of The Constitution of The Bahamas provides that “every person is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely__
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from deprivation of property without compensation, the subsequent provisions of this chapter shall have effect for the purpose of affording to the aforesaid rights and freedom subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedom of others or the public interest.
The Royal Bahamas Police Force is one of the most important arms of The Bahamas Government.
Section 4 of the Police Act (Chapter 191) provides:
“The Force shall be employed in an through The Bahamas for the maintenance of Law and Order, Preservation of Peace, the Prevention and Detection of Crime, the Apprehension of Offenders and the Enforcement of all Laws with which it is charged. For the performance of these duties it shall be lawful for Police Officers to be issued with and to carry such arms and ammunition as the Commissioner may direct”.
As can be seen this Section defines the functions of the Police Force but also grants the power of the Police Force to bear arms. However, in order to carry out their mandate the Police Force has been granted a number of other important powers. These powers, their use and misuse are often the subject of many public debates.
The powers that bring the Police into contact and conflict with the public are primarily the power of Arrest and the power of Search and Seizure.
The Power of Arrest
(1) The Police Power of Arrest is usually based on a Warrant lawfully issued authorising the arrest of individuals. However, the Police also have the power to arrest without a Warrant.
(2) By Section 31 of the Police Act, a Police Officer is given the power to arrest without a Warrant any person who within view of any such officer shall offend in any manner against any law and who, when requested by such Police Officer so to do, refuses to give his name and address or give a name and address which such Police Officer has reason to believe is false.”
(3) By Section 103 of the Penal Code (Chapter 77) a Police Officer is granted the power to arrest and take persons into custody without a Warrant in the following cases: –
(a) any person whom he finds committing an offence against the person or against property as to which it is provided under the Code that the offender may be punished by imprisonment.
(b) any intoxicated or idle or disorderly person whom he finds in any way disturbing the peace, whether in a public or private place and causing public annoyance, or guilty of any other offence against the law which may be an outrage of public decency or morality;
(c) any person whom he finds during the night lying or loitering any highway, yard or other place and whom he shall have good cause to suspect of having committed, or being about to commit, any offence against this Code;
(d) any person whom any other person positively charges or states that he suspects of having committed any crime or the offence of stealing or obtaining goods by false pretences, or receiving stolen goods, or the offence of cruelty to or causing injury to an animal, if the charge or suspicion appears to the peace officer to be well-founded and the informant is willing to accompany the peace officer and at the police station is willing to enter into recognizance conditioned to prosecute the charge;
(e) any person whom any other person charges with having committed an aggravated assault, if the peace officer has good reason to believe that such an assault has been committed, although not within his view, and that by reason of its recent commission a warrant could not have been obtained for the apprehension of the person charged.
4. Under various other Statutes a Police Officer is given power to make arrests without a warrant i.e. The Firearms Act (Chapter 198) Section 41(4) gives the right to arrest any person whom a Police Officer has reasonable grounds for suspecting to be committing an offence under Part VI of the Firearms Act.
5. In making an arrest a Police Officer 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.
If the person to be arrested forcibly resists the attempts to place him under arrest the Police Officer may use all means necessary to effect the arrest.
Provided that nothing 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: Section 10 – Criminal Procedure Code.
6. A Police Officer may use any force which is necessary for the arrest, detention or recapture of a Felon, and may kill him, if he cannot by any other means be arrested, detained or retaken: Section 102(1) – Penal Code.
NB A Felon is a person who is responsible for a crime, The conviction for which he may receive three (3) Years or more.
The Power of Search and Seizure
This covers two areas (1) the Search of Persons and (2) the Search of Premises.
1. A Police Officer may search any person whom he has arrested and place in safe custody all articles other than necessary wearing apparel found upon him: Section 14 of the Criminal Procedure Code.
2. If a Police Officer has reasonable cause to suspect any person of having a firearm with him and to be committing or about to commit an offence under Part VI of the Act, the peace officer may search that person and detain him for the purpose of searching him: Section 41(2) of the Firearms Act (Chapter 191).
3. The foregoing are the two main instances in which the Police have power to search individuals. In other cases they should first obtain the consent of the person to be searched. If that consent is refused and the Police Officer has reasonable ground for believing that an arrestable offence has been committed by that individual, the Police Officer may place him under arrest and then search him.
4. Whenever, it is necessary to cause a woman to be searched, the search shall be made by another woman, who need not be a Police Officer, and with strict regard to decency: Section 15 of the Criminal Procedure Code.
5. A Police Officer has the Power to enter any premises to which a person who he is in the process of arresting has taken refuge. Section 11 – Criminal Procedure Code.
6. Section 34 of the Police Act gives Police Officers the right in cases of extreme urgency to enter premises occupied by a convicted person to seek stolen goods.
7. Under Section 37 of the Police Act an Officer may search any vessel or aircraft when he has reasonable grounds to believe that there is aboard the said vessel or aircraft Uncustomed Goods, stolen goods or other prohibited items.
8. A Police Officer may search any vehicle which is in a Public place and which he suspects contains a firearm or is being used in connection with an offence involving firearms: Section 41(2) of the Firearms Act.
Other Police Powers of Significance
(1) Section 44 of the Police Act gives the Police the power to erect barriers (roadblocks) and to take reasonable steps to prevent any vehicle being driven past any such barriers.
(2) A Police Officer may detain an arrested person for up to forty-eight (48) hours after arrest for the purpose of conducting investigations prior to laying charges against him. See Section 17 of the Criminal Procedure Code.
(3) Every member of the Police Force is invested with all the powers of a Customs Officer under the Customs Management Act to prevent smuggling and shall be entitled to the same immunity as a Customs Officer. Section 40 of the Police Act.
(4) It shall be the duty of the Force to regulate and control traffic and to divert all or any particular kind of traffic, when, in the opinion of an officer in charge of Police, it is in the public interest to do so. Section 43 of the Police Act.
These are the basic powers of the Police Department and as long as they are exercised in the public interest, in a reasonable manner, in the appropriate circumstances, the citizens’ rights under the Constitution are not infringed. The aforesaid powers are in fact vested in the police for the benefit of the citizen, as the force is the institution mandated to protect and serve the members of society.
The practical difficulty however, is that some police officers do not properly understand the ambit of their powers while others deliberately abuse these powers. By the same token some citizens do not appreciate the ambit of the police powers while some that do, actually resent the fact that the police are so empowered. This has been the cause of much conflict between the police force and the general public.
It is important therefor for each citizen to know and understand his rights. At the same time he ought to know and understand the scope of the powers that have been vested in each police officer with, whom he comes into contact with. The police officers should like wise know and understand the rights guaranteed to each citizen he comes into contact with. The officer should also obviously know and understand the scope of the powers, which come with the position, which he holds.
Unfortunately, over the years there have been incidents, which clearly demonstrate that the mutual understanding and co-operation necessary between the police and the public has been woefully lacking. These have resulted in persons being injured in their self-esteem, public image and in their health. A natural progression of this fact is that the courts have been beset with a flood of litigation involving disputes between individuals who claim their rights have been violated and the police officers who stand accused of the same.
The phenomenon of litigation alleging police abuse of powers has also had the negative effect of (i) consuming much of the time of the legal officers in the Office of the Attorney-General and (ii) depleting the financial resources of the State by the settlement of judgements and successful claims against the Crown in some of these cases.
The final point, which I would like to make, is that the administration of justice and the general detection and prosecution of crimes can also be adversely affected by a failure to understand the relationship of police powers and individual rights. A police officer that fails to act in accordance with his powers may be in some cases responsible for the courts having to release persons who may very well be guilty of the offence with which they were charged. In other cases the individual resentful or ignorant of police powers may obstruct the police in their execution thereof resulting in criminals not being detected.
It is the above reasons together with many others which dictate the need for public to be educated relative to their rights as well as the powers and duties of the police force. If this is done then who knows we may have come a long way in dealing with the issue of crime in our country as well as other social ills.
By Milton A. Evans, The Nassau Guardian
