The search of the premises of Akil Bissessur and his arrest raise once more the powers of the police to deprive citizens of their liberty. In her book on Provisional Charges, Ms. Touria Prayag has dealt extensively with the power of the police to arrest an individual and the abuse made of provisional charges.

As the law stands, an arrest may be made if there is reasonable suspicion that a person has committed an offence. There is no magic yardstick to assess what reasonable suspicion amounts to. There has been a number of pronouncements by national courts and the European Court of Human Rights on the standard of reasonable suspicion.

In a case decided in 1989, the Supreme Court held that a police officer effecting an arrest must take into consideration the totality of the circumstances including the explanations of the suspect and that, whatever suspicion the police may harbour against the suspect, should be weighed against any factors which tell in favour of the suspect. A total neglect of the explanations that the suspect may have to offer may well lead to the conclusion that the suspicion is not reasonable.

In a case in England, it was held that: “Whether the constable had reasonable suspicion must be determined according to what he knew and perceived at the time; reasonableness is to be evaluated without reference to hindsight.” Unfortunately, in Mauritius, in many instances, the police proceed to an arrest and then they start to look for evidence that would justify such deprivation of liberty. This is a common feature when a court is hearing a motion for release on bail. The police would just state in court that they are still looking for evidence or that the inquiry is still going on. Unfortunately, most magistrates, with the exception of a few, go along with the police stand.

In a ruling she issued in the case of Dayal on 27 April 2016 at the District Court of Port Louis, Magistrate (Ms.) Hamuth clearly explained the justification for the reasonable suspicion test: “The ‘reasonable suspicion’ requirement is a valuable protection to the community and it is an essential safeguard against arbitrary arrest and detention. Hence, the police shall before, arresting a person satisfy itself that there do in fact exist reasonable grounds for suspicion of guilt.”

It would appear that many of the court pronouncements are not followed by the police. This is either because they perhaps believe that these pronouncements do not have any legal significance in their eyes, or because they choose to ignore them as they may have an agenda of their own, or they are just unaware of these pronouncements. This is why it is imperative that the government give urgent attention to the Police and Criminal Evidence Bill which was drafted in 2013. Since then, there has been an evolution in the manner in which the police conduct themselves when arresting an individual. The bill should be revised by a team of experts with a view to bettering the rights of arrestees and to afford more protection to victims of crimes.

In the bill as drafted in 2013, it is stated in the explanatory memorandum that the main objects of the bill are to bring together in one enactment, subject to certain exceptions, the provisions which relate to the exercise by police officers of the powers to stop, enter, search, seize, arrest and detain and the treatment and questioning of detainees; provide for a statutory basis for provisional information; and to better guarantee the citizen’s constitutional rights to liberty, protection of property, freedom of movement and protection of the law.

A police officer still has the power to arrest an individual who is about to commit or in the act of committing an offence or whom he has reasonable grounds to believe to be about to commit or to be committing an offence; or whom he has reasonable grounds to believe to have committed an offence. The bill, however, makes an innovation in that it provides that the power of arrest is exercisable only where the police officer has reasonable grounds to believe that it is necessary to arrest the person so as to ascertain the person’s name or address. Far too often the police arrest an individual on a mere allegation. This would change with the new bill. A police officer shall not arrest a person on the basis of the mere allegation of a third party unless he has carried out the necessary investigations to verify that the arrest can only be justified to prevent injury to the person or to others or to a child. Whilst this new provision is welcome, there should be included in the new bill a provision to compel the police to take into consideration the totality of the circumstances including the explanations of the suspect and that, whatever suspicion the police may harbour against the suspect, should be weighed against any factors which tell in favour of the suspect, as decided by the Supreme Court in 1989 and by other judgments recently both nationally and internationally.

«The police would just state in court that they are still looking for evidence or that the inquiry is still going on. Unfortunately, most magistrates, with the exception of a few, go along with the police stand.»

The conditions surrounding the detention of a suspect will also undergo changes. Today, when an individual is arrested, he is “hidden” as it were from his lawyers and relatives and is transported from one police station to another. Under the bill, it would not be permissible to keep a person in detention for more than 24 hours without being charged with an offence. The delay may be extended in the case of a suspected drug offence. The bill establishes a post of custody officer who would be based at a place of detention and who should not be below the rank of inspector. Where a person is in detention without charge, the custody officer shall determine whether he has sufficient evidence to warrant detention. Where there is insufficient evidence to warrant detention, the custody officer shall arrange for the release on parole of the person subject to a number of exceptions as in the case of bail. It is significant to note that the custody officer must ensure the safety of the detainee. Under the bill, a review of the detention must periodically be conducted by the custody officer, with a view to determining whether or not to authorise his continued detention. The first review shall be not later than six hours after the detention started. The second review shall be not later than nine hours after the first review. Subsequent reviews shall be at intervals of not more than nine hours. A review may be postponed for not more than three hours.

It is a well-known fact that the moment a person is arrested, a provisional information is lodged against him. That person may remain in detention or be on bail for quite a long time until a decision is taken in his case. There may be genuine cases where there is a need to file a provisional charge against an individual. But in recent times, this procedure has been used in an indiscriminate and abusive way by the police. As Ms. Touria Prayag states in an interview in the weekly Mauritius Times of 12 June 2016, following the publication of her book on Provisional Charges, there were “decent hapless citizens whose lives were overturned overnight when they were arbitrarily arrested and detained and saw their basic human rights snatched away from them and their freedom withdrawn. They suffered the worst imaginable humiliation and violations of their dignity and intimacy”.

The new bill keeps the practice of provisional information that should specify the charge and the details of the charge. Under the bill, a provisional information shall lapse after a period of six months. It may be extended on good cause shown to a magistrate to allow the police a further period of investigation, provided the magistrate is satisfied that the delay should be extended. The new provision would bring a provisional information under the direct supervision of a magistrate. That means that the police would need to put forward strong reasons to justify an extension of the provisional information. The new provision would put an end to the abuse generated by provisional information provided magistrates do not simply rubber stamp the request for delay. Under the bill, a magistrate would also have the power to strike out or dismiss a provisional information either after six months or after the delay granted for further investigation or earlier. That means that the police would no longer be able to allow inquiries to drag on.

A long time has gone by since the draft of the bill was prepared. It is high time it was revived and revamped in the interest not only of suspects but above all in the interest of the police.