Criminal Procedure Assignment 1

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CRIMINAL PROCEDURE
Assignment 1
1. The peace officer must be duly authorised by statute to arrest the suspect, with or without a warrant . In order to affect an arrest, the arrestor must exercise physical control over the arrestee . Except for situations where the arrestee submits to the control of the arrester, the arrester may affect the arrest by touching the person of the arrestee or detaining his person by force . The degree of force legally permitted in arresting or attempting to affect an arrest is provided for in section 49 of the Criminal Procedure Act . Either at the time of the arrest, or immediately after the arrest, the arrester must inform the arrestee of the reason for the arrest, or hand the arrestee a copy of the warrant
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The point of arrest is not to be punitive, but to bring the accused before a court of law . The ConCourt came to the conclusion that the use of force in effecting an arrest should only be used in situations where it is necessary to effect an arrest i.e. where the suspects attempts to flee the scene or attempts to resist lawful arrest. Where the force is required, the least amount of force to affect the arrest must be used. All the circumstances must be taken into account when deciding how much force is reasonable and necessary, including the nature of the offence that accused has committed or is suspected of having committed, and the threat of violence that the accused poses to the arrestor or others . It has already been determined that the police have a right to use force to affect an arrest under section 49 , on condition that the use of force falls within principles that have been laid down in the courts. Furthermore, the police are obliged under the Regulations of Gatherings Act to diffuse the situation and try to get the protesters to leave by asking them to do so ‘within a time specified by him’ . Once this specified time has expired, only then may members of the police force be ordered to use force by the officer in command in order to get the crowd to disperse . SAPS Standing Order No. 262 makes provision for procedure to be followed in situations where a public gathering may necessitate the use of force. With regard to the SAPS Standing Order No. 262 , there is a clear assertion that the use of force must be avoided, and that the police officers must display ‘the highest degree of tolerance’

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