An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.
Arrest warrants in the United States
Warrants are typically issued by courts but can also be issued by houses of the United States Congress or other legislatures (via the call of the house motion) and other political entities.
In the United States, an arrest warrant must be supported by a signed and sworn affidavit showing probable cause that:
a specific crime has been committed, and
the person(s) named in the warrant committed said crime.
Hence, the form and content of an arrest warrant may be similar to the following:
Municipal Court, Springfield Judicial District
To any peace officer of the realm: Complaint upon oath having been brought before me that the crime of larceny has been committed, and accusing Nelson Muntz of the same, you are hereby commanded forthwith to arrest and bring that person before me. Bail may be admitted in the sum of $1,000.00. Dated: 15 May 1997. /s/ Bill Wright, presiding judge.
In most jurisdictions, an arrest warrant is required for misdemeanors that do not occur within view of a police officer. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony.
A bench warrant, sometimes also called a "capias," is a variant of the arrest warrant. A bench warrant usually commands the arrest of someone for failing to show for a required court appearance.
Arrest warrants in Canada
Arrest warrants are issued by a judge or justice of the peace under section 83.29 of the Criminal Code. The judge must be satisfied that the person named in the warrant is (a) is evading service of the order, is about to abscond, or did not attend the examination, or did not remain in attendance, as required by the order.
Once the warrant has been issued section 29 of the Code requires that the arresting officer must give notice to the accused of the existence of the warrant, the reason for it, and produce it if requested.
Mittimus
A mittimus is a writ issued by a court or magistrate, directing the sheriff or other executive officer to convey the person named in the writ to a prison or jail, and directing the jailor to receive and imprison the person.
An example of the usage of this word is as follows: "... Thomas Fraser, Gregor Van Iveren and John Schaver having some time since been Confimed by the Committee of the County of Albany for being Persons disaffected to the Cause of America and whose going at large may be dangerous to the State, Ordered Thereupon that a Mittimus be made out to keep them confined till such time as they be discharged by the Board or any other three of the Commissioners." Minutes of the Commissioners for detecting and defeating Conspiracies in the State of New York, Albany County Sessions,1778-1781. (Albany, New York: 1909) Vol. 1, Page 90
Showing posts with label Arrest. Show all posts
Showing posts with label Arrest. Show all posts
Tuesday, July 10, 2007
Arrest
An arrest is the action of the police, or person acting under the law, to take a person into custody, usually so that they may be forthcoming to answer before a tribunal for the commission of a crime. In many legal systems, an arrest requires mere verbal information to persons that they are under arrest; the laying of hands or restraints upon the arrested person is usually not required to effect an arrest. Also, there are certain non-criminal arrests that allow for the seizure of representatives not present in the legislative body lacking a quorum, and the forfeiture of property.
For serious crimes, the police typically take suspects to a police station or a jail where they will be incarcerated pending a judicial bail determination or an arraignment. In other instances, the police may issue a notice to appear specifying where a suspect is to appear for his arraignment.
While an arrest will not necessarily lead to a criminal conviction and a state sanction such as imprisonment, the arrest itself may have serious ramifications, such as a loss of a job due to inability to pay bail, loss of public housing, and social stigma. (Such effects are amongst the collateral consequences of criminal charges.) Arrests should therefore not made lightly, as a wrongfully arrested person may sue the arresting authority for damages.
[edit] Legal cautions
The reading of the Miranda warning or similar "caution" to an arrestee advising him or her of rights is not legally required upon arrest. A legal caution is required only when a person has been taken into custody and is interrogated. Legal cautions are mandated in the US, most Commonwealth and other common law jurisdictions, and countries where the right to legal counsel, the right to silence, and the right against self-incrimination have been clearly established.
In the United Kingdom a person must be 'cautioned' when being arrested unless impractical due to the behaviour of the arrestee i.e. violence or drunkenness. The caution required in England and Wales states,
“ You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you do say may be given in evidence. ”
The person must also be told what crime they are being arrested for and why it is necessary to arrest them, and they may be asked if they understand the caution. Some officers, however, do not ask this question so the suspect does not have the option to claim he or she did not understand the caution as a form of defence. In R v Fiak (2005) EWCA 2381, the police found the appellant sitting in the driver's seat of a stationary BMW car. He was alone, leaning out of the front door, vomiting into the roadside. When challenged, the appellant denied that he had been driving and walked towards his adjacent house inviting the officers to confirm that he had been home all night. The officer said, "You are being detained in order for us to establish whether an offence has been committed. Now stay where you are." When the appellant's wife finally opened the door, he attempted to force his way in. There was a struggle. Only later were the words of the caution administered. The defence argued that the only power to arrest arose under s4(6) Road Traffic Act 1988, which provides, "any constable may arrest anyone he has reasonable cause to suspect of having committed the offence of ... being in charge of a vehicle when under the influence of drink or drugs." and that, until the appellant was lawfully arrested, he was at liberty to resist any unlawful attempt to restrain him. The general rule flowing from Holgate-Mohammed v Duke (1984) AC 437 is that an arrest takes place when an individual is taken into custody, and words or actions restrain him from moving anywhere beyond the control of the person effecting the arrest.
"Whether a person has been arrested depends not on the legality of his arrest but on whether he has been deprived of his liberty to go where he pleases."
Thus, Fiak was arrested when the officer told him in unequivocal terms that he was being detained and that he should stay where he was, and physically sought to prevent him from going into his home. At that time he knew precisely why she had given him that instruction, but she was willing to check his story that he had been in his home all evening, and as he asserted, neither driving nor in charge of his vehicle. If it were true, that would have been the end of the incident. There would have been no need to remove the appellant to the police station with the appropriate statutory procedure to follow. The appellant could simply have returned to his home, without any inconvenience to anyone. But if it were untrue, then the implementation of the statutory procedure would continue to its proper conclusion. Arrest can thus be considered to have been a continuous process from the moment of detainer to the pronunciation of the formal words of the caution.
[edit] Non-criminal arrests
Breach of a court order can be civil contempt of court, and a warrant may issue for the person's arrest. Some court orders contain authority for a police officer to make an arrest without further order.
If a legislature lacks a quorum, many jurisdictions allow the members present the power to order a call of the house, which orders the arrest of the members who are not present. A member arrested is brought to the body's chamber to achieve a quorum. The member "arrested" does not face prosecution, but may be required to pay a fine to the legislative body.
Ordinarily only human beings can be arrested, but recent and somewhat controversial changes to criminal codes have allowed for the arrest not only of the usual "contraband, evidence, fruits, and instrumentalities" of crime, but also of inanimate objects such as money, automobiles, houses, and other personal property under asset forfeiture.
For serious crimes, the police typically take suspects to a police station or a jail where they will be incarcerated pending a judicial bail determination or an arraignment. In other instances, the police may issue a notice to appear specifying where a suspect is to appear for his arraignment.
While an arrest will not necessarily lead to a criminal conviction and a state sanction such as imprisonment, the arrest itself may have serious ramifications, such as a loss of a job due to inability to pay bail, loss of public housing, and social stigma. (Such effects are amongst the collateral consequences of criminal charges.) Arrests should therefore not made lightly, as a wrongfully arrested person may sue the arresting authority for damages.
[edit] Legal cautions
The reading of the Miranda warning or similar "caution" to an arrestee advising him or her of rights is not legally required upon arrest. A legal caution is required only when a person has been taken into custody and is interrogated. Legal cautions are mandated in the US, most Commonwealth and other common law jurisdictions, and countries where the right to legal counsel, the right to silence, and the right against self-incrimination have been clearly established.
In the United Kingdom a person must be 'cautioned' when being arrested unless impractical due to the behaviour of the arrestee i.e. violence or drunkenness. The caution required in England and Wales states,
“ You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you do say may be given in evidence. ”
The person must also be told what crime they are being arrested for and why it is necessary to arrest them, and they may be asked if they understand the caution. Some officers, however, do not ask this question so the suspect does not have the option to claim he or she did not understand the caution as a form of defence. In R v Fiak (2005) EWCA 2381, the police found the appellant sitting in the driver's seat of a stationary BMW car. He was alone, leaning out of the front door, vomiting into the roadside. When challenged, the appellant denied that he had been driving and walked towards his adjacent house inviting the officers to confirm that he had been home all night. The officer said, "You are being detained in order for us to establish whether an offence has been committed. Now stay where you are." When the appellant's wife finally opened the door, he attempted to force his way in. There was a struggle. Only later were the words of the caution administered. The defence argued that the only power to arrest arose under s4(6) Road Traffic Act 1988, which provides, "any constable may arrest anyone he has reasonable cause to suspect of having committed the offence of ... being in charge of a vehicle when under the influence of drink or drugs." and that, until the appellant was lawfully arrested, he was at liberty to resist any unlawful attempt to restrain him. The general rule flowing from Holgate-Mohammed v Duke (1984) AC 437 is that an arrest takes place when an individual is taken into custody, and words or actions restrain him from moving anywhere beyond the control of the person effecting the arrest.
"Whether a person has been arrested depends not on the legality of his arrest but on whether he has been deprived of his liberty to go where he pleases."
Thus, Fiak was arrested when the officer told him in unequivocal terms that he was being detained and that he should stay where he was, and physically sought to prevent him from going into his home. At that time he knew precisely why she had given him that instruction, but she was willing to check his story that he had been in his home all evening, and as he asserted, neither driving nor in charge of his vehicle. If it were true, that would have been the end of the incident. There would have been no need to remove the appellant to the police station with the appropriate statutory procedure to follow. The appellant could simply have returned to his home, without any inconvenience to anyone. But if it were untrue, then the implementation of the statutory procedure would continue to its proper conclusion. Arrest can thus be considered to have been a continuous process from the moment of detainer to the pronunciation of the formal words of the caution.
[edit] Non-criminal arrests
Breach of a court order can be civil contempt of court, and a warrant may issue for the person's arrest. Some court orders contain authority for a police officer to make an arrest without further order.
If a legislature lacks a quorum, many jurisdictions allow the members present the power to order a call of the house, which orders the arrest of the members who are not present. A member arrested is brought to the body's chamber to achieve a quorum. The member "arrested" does not face prosecution, but may be required to pay a fine to the legislative body.
Ordinarily only human beings can be arrested, but recent and somewhat controversial changes to criminal codes have allowed for the arrest not only of the usual "contraband, evidence, fruits, and instrumentalities" of crime, but also of inanimate objects such as money, automobiles, houses, and other personal property under asset forfeiture.
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