In most cases where an arrest is carried out illegally or unlawfully, this does not affect the charge against the accused. However, the accused can choose to seek civil or disciplinary action against the arresting authorities.
1. CIVIL REMEDIES
The civil remedies available to the accused lie primarily in the torts of false imprisonment or malicious prosecution.
In order to determine if there has been false imprisonment, the court should first consider whether there was in fact arrest. If there was in fact arrest, whether there were lawful grounds for the arrest. The court will look at what provision of the law the arrest was carried out under and whether the criteria in that provision and been fulfilled.
In an action of malicious prosecution, the accused must first show that he was prosecuted by the defendant. This means that the law was set in motion against him on a criminal charge.
Secondly, the accused must show that the prosecution was determined in his favour. Thirdly, that there was no reasonable or probable cause. Fourthly, that it was malicious.
2. JUDICIAL REVIEW OF DECISION TO ARREST
Beyond these torts, the accused could also seek judicial review of the police decision to arrest. The decision to arrest is reviewable on the same grounds as any other exercise of discretionary power.
It is important to note that if the accused person’s arrest was wrongful, an accused person would be entitled to struggle against the arresting officers because he would be resisting an illegal or unjustifiable use of force towards him.
