4.2 Arrest

1. Arrest refers to the lawful act of apprehending or charging a suspect for the alleged commission of an offence and taking them into custody. Arrest is a form of deprivation of liberty and is part of the daily function of police and other law enforcement officials. Other forms of deprivation of liberty considered in this practical resource toolkit include ‘stop and search’, ‘police custody’ and ‘transport’.
2. The effective implementation of legal and procedural safeguards upon arrest (set out below) is key to observing the dignity of persons being arrested and reducing the risks of abuse of power which can lead to arbitrary detention, torture or other ill-treatment. Respecting the rights of suspects during arrest reduces the chance of the charge being dismissed or any collected evidence (including confessions) being rejected by the courts because of an unlawful arrest and interview, thereby advancing and reinforcing the fairness and efficiency of criminal trials and the rule of law.
3. The right to liberty and security of the person imposes limits on who can carry out an arrest and when an arrest is considered lawful. An arrest can usually only be carried out by an authorised official (although, in some countries, a citizen’s arrest is possible), and the power of arrest is limited to those circumstances that are established in law and other regulations. The person being arrested must be informed that they are under arrest and of the grounds upon which the arrest is being effected. In many jurisdictions, the applicable standard permitting arrest is where there are reasonable grounds to suspect that a person has committed an offence, is in the process of committing an offence, or is about to commit an offence. Mere suspicion is not sufficient grounds for an arrest. Arrests that are carried out outside these strictures may be considered arbitrary and/or unlawful.
4. As far as possible, any arrest should be carefully planned to uphold the dignity of the suspect and reduce risks, for example, of absconding or violent confrontation. Police officers should, as far as possible, avoid arresting a suspect in front of their children, family or neighbours, for instance. Showing such empathetic considerations and respect can increase communication with the suspect and the flow of information. Whether an arrest should be effected will depend on the assessment of available information and alternative options. Alternatives to arrest, such as cautioning a subject, are appropriate for law enforcement officials to consider as part of such an assessment. Furthermore, not all arrests must result in being held in police custody or subsequent forms of detention, such as where the suspect has agreed to provide a statement or, having provided a statement, there are no longer justified grounds to hold the suspect (for example, the suspect may be innocent, or police can no longer argue that there are risks that the suspect may destroy evidence, influence or intimidate victims or witnesses, etc.). As an alternative to arrest, suspects may be given a summons to appear or be released on their own recognizance.
5. When an arrest is effected, it is important for law enforcement officials to respect the dignity, privacy and any particular vulnerabilities of the person being arrested, always taking into account that they are presumed to be (and, therefore, must be treated as) innocent until proven guilty by law. Additional safeguards or adjustments for individuals in situations of vulnerability are set out below.
6. International standards provide that law enforcement officials may only use force under the conditions provided in their legislation, when it is strictly necessary, and that any force used be strictly proportional to the seriousness of the offence and the legitimate objective to be attained (in this case, the arrest). Lesser means (such as information and communication) should always be applied first, unless such lesser means are obviously not sufficient to handle the situation and to carry out a lawful arrest. Any use of force should stop immediately when the arrest has been successful, keeping in mind that the highest considerations are the protection of the rights to life, liberty and security of the person and the preservation of public safety and social peace, and that principles of fair trial apply from the moment of arrest. (For more information, see also the resource note on ‘lawful use of force and firearms’)

This non-exhaustive list of safeguards aimed to help improve the protection of human rights during arrest procedures, to better regulate these practices, and to protect against unlawful deprivation of liberty or torture and other ill-treatment. They also help to reinforce the integrity criminal investigations, the fair administration of justice and the criminal justice system as a whole.

7. Legal basis: The practice of arrest has to be based on and in accordance with law which indicates with sufficient clarity and precision the scope of the power, the appropriate procedures, the maximum duration conferred on the competent authorities and the manner of its exercise..
8. Notify arrested person of their rights: Upon arrest, law enforcement personnel are to inform the persons arrested of their rights. Such information entails:

• the reason for the arrest and any charges laid against them, and the procedures that will be followed;
• their right to a lawyer, or to have one appointed to them should they not be able to afford one, or other arrangements available for legal counsel. (For more information on prompt access to a lawyer and on legal aid, see also the resource note on ‘police custody’);
• the right to remain silent;
• the right to have someone informed of their arrest, or to a phone call. (For more information on notification of family or a third party, see the resource note on ‘police custody’);
• where applicable, the right to interpretation;
• where applicable, the right to access consular services; and
• the right to be brought promptly before a judge to, depending on the national legal system, either confirm the arrest or custody period, or approve any extensions.

9. Procedural guidelines: Sometimes, the provision of information on rights is denied or delayed, such as where officers stop short of arresting a person, and instead wrongly assign them a procedural status, such as ‘person of interest’, or treat them as a witness. Denying or delaying access to such information could lead to any evidence collected being thrown out in court, or even the whole case against a suspect being discontinued on grounds of breach of fair trial rights. Clear guidelines spelling out the treatment of suspects, witnesses and victims, and especially when and how to handle any change in their legal status, are considered good practice.
10. Notification of relatives: Notification of and communication with relatives or a third party upon arrest also ensures that any necessary assistance can be organised, such as arranging to bring food and/or warm clothes, which may be required in certain detention facilities, and to contact a lawyer and/or legal aid provider on behalf of the detained person.
11. Time limits on custody and questioning: Time limits on how long someone can be held for questioning should be clearly set out in law and monitored, and the suspect informed accordingly. Many systems impose a limit of 48 hours prior to requiring a court order either permitting any extension or requiring release. Only in exceptional circumstances should time limits beyond 48 hours be allowed, and these should be prescribed by law. Arrests that result in being detained beyond the set time limits for questioning give rise to additional safeguards and rights. (For more information, see the resource note on ‘police custody’).
12. Non-discrimination: All of these safeguards are important for persons arrested, irrespective of their alleged crime, their age, gender, state of health, nationality, physical or mental disability, or any other protected status or characteristic which may make a person particularly vulnerable. Legislation and guidelines that allow and positively encourage authorities to adapt their procedures as needed to ensure that these and other groups can avail themselves effectively of their rights are recognised good practice. Furthermore, any possibilities offered to the authorities to delay the exercise of one or other of the arrested person’s rights in order to protect the interests of justice should be clearly defined in law, and their application be strictly necessary, proportionate and limited in time.
13. Use of force and restraints: Force may sometimes be necessary to make an arrest or prevent a suspect from absconding. Police and other law enforcement personnel may only use force when it is lawful and necessary to achieve a legitimate objective, and also proportionate to the seriousness of the offence and the objective to be achieved. Lesser means (e.g., information and communication) should always be applied first. Restraints, such as handcuffs, leg cuffs and body cuffs, can also constitute force, and their use should be carefully regulated, as with all other types of force. (For more information, see also the resource note on ‘lawful use of force and firearms’).
14. Safety for transportation: Moving a person from the point of arrest into a custody environment can present certain risks both for the arrested person and the law enforcement personnel carrying out the arrest. Good practice is that, prior to transporting a detainee in a police vehicle, an assessment is conducted which considers the physical condition of the individual to be transported and any vulnerabilities, as well as the potential for the person to use violence or attempt to escape, the length of the journey, and staff resources during the transport. The law enforcement officials carrying out the arrest benefit from being sufficiently trained on safety matters and first aid. Where it is strictly necessary that a child be arrested and transported to a police station, the child must not be transported with an adult who is in police custody. At all times during transportation the child should be accompanied by a police officer. (See also the resource note on ‘transport procedures’).
15. Frisking (pat-down) body searches: As part of an arrest, suspects are often frisked or patted down to locate and remove dangerous or prohibited goods or substances (e.g., weapons or drugs). Good practice is to inform the person about the purpose of the search, and ask the person if they are carrying anything that is illegal – providing them with an opportunity to hand it over without additional embarrassment. (For more information on frisking/pat-down of women and children, see the resource note on ‘stop and search’. For more information on intrusive body searches, such as strip and body cavity searches, see the resource note on ‘police custody’).

• United Nations Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, adopted by General Assembly resolution 43/173, 9 December 1988.
• Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, September 1990.
• UN Human Rights Council Resolution 31/31 on safeguards to prevent torture during police custody and pretrial detention, A/HRC/RES/31/31, 21 April 2016, in particular, paras. 5, 6 and 9.
• UN Human Rights Council Resolution 46/15 on the roles and responsibilities of police and other law enforcement officials, A/HRC/RES/46/15, 1 April 2021, in particular, paras. 3, 4, 14.

• Luanda Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, adopted by the African Commission on Human and Peoples’ Rights (ACHPR), 2014, in particular, Checklist 1, Category 1: Legislative, policy and administrative framework for arrest.
• Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, approved by the Inter-American Commission on Human Rights, 2008.
• European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT standards on Police/Law enforcement.
• Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013.

• African Commission on Human and Peoples’ Rights (ACHPR), Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines) Trainer Manual, 2017.
• European Union Agency for Fundamental Rights, “Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings”, 2019.
• United Nations Office of the High Commissioner on Human Rights (OHCHR) and United Nations Office on Drugs and Crime (UNODC), Resource book on the use of force and firearms in law enforcement, 2017, pp. 136, 140-150.
• European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “Preventing police torture and other forms of ill-treatment – reflections on good practices and emerging approaches”, 2019, CPT/Inf(2019)9-part, paras. 64, 66 and 85.