INTRODUCTION
Handcuffs are a standard tool used by the police for restraint. However, under Ghanaian law, handcuffing is not automatically lawful. When police officers use handcuffs without legal justification, it may amount to false imprisonment, assault, and a violation of constitutional rights. This article explains when handcuffing crosses the line from lawful restraint to an unlawful act.
WHEN IS HANDCUFFING LAWFUL?
Ghanaian law permits the police to restrain a person, including through the use of handcuffs, only in specific circumstances:
1. During a Lawful Arrest
Section 3 of the Criminal Procedure Code, 1960 (Act 30), allows police officers to use handcuffs where a suspect may resist arrest, escape, or cause harm.
Section 3 states:
“In making an arrest, a police officer or any other person making the arrest shall touch or confine the body of the person to be arrested, unless there is a submission to custody verbally or by conduct.”
2. Preventing Escape
Section 6 of the Police Service Act, 1970 (Act 350), permits the use of reasonable force to detain a person and prevent escape.
3. Protecting Safety
Handcuffs may be used if a person is violent, self-harming, or poses a danger to others.
The key word in all these situations is “reasonable.” The level of force used must be proportionate to the risk involved.
WHEN HANDCUFFING BECOMES UNLAWFUL
1. Without Arrest or Lawful Authority
Handcuffing a person who has not been lawfully arrested, or failing to inform the person of the reason for the restraint, may amount to false imprisonment under common law. Section 96 of the Criminal Offences Act, 1960 (Act 29), also addresses unlawful detention.
2. As a Form of Punishment
Article 15(2) of the 1992 Constitution provides that:
“No person shall be subjected to torture or other cruel, inhuman, or degrading treatment.”
Using handcuffs to punish, humiliate, or “teach a lesson” to a person before a court conviction is unconstitutional. Handcuffs are meant for restraint, not punishment.
3. Excessive or Reckless Use
Where handcuffs are applied too tightly, left on for an excessive period, or cause injury without appropriate medical attention, the conduct may constitute assault under Section 84 of the Criminal Offences Act, 1960 (Act 29). Police officers have a duty to monitor circulation and loosen restraints when necessary.
4. Public Humiliation and Media Parading
Parading handcuffed suspects before the media prior to trial undermines the constitutional presumption of innocence under Article 19(2)(c) of the 1992 Constitution, which states:
“A person charged with a criminal offence shall be presumed innocent until he is proved guilty or has pleaded guilty.”
The Commission on Human Rights and Administrative Justice (CHRAJ) has consistently regarded such practices as violations of the right to dignity. Suspects must be treated as innocent until proven guilty by a court of law.
5. Use on Vulnerable Persons Without Justification
Handcuffing children, elderly persons, pregnant women, or persons with disabilities requires additional justification. Where there is no genuine risk of escape, violence, or harm, such restraint may amount to cruel, inhuman, or degrading treatment.
LEGAL CONSEQUENCES OF UNLAWFUL HANDCUFFING
Civil Liability
A victim of unlawful handcuffing may sue the Attorney-General and the Ghana Police Service for damages. In Mensah v Attorney-General [1996-97] SCGLR 320, the court awarded damages for unlawful arrest and detention.
Disciplinary Action
A police officer may face internal disciplinary sanctions under the Police Service Regulations.
Criminal Liability
Where injury results from unlawful restraint, the officer may face criminal charges, including assault or causing harm.
BEST PRACTICE GUIDELINES FROM CHRAJ AND THE GHANA POLICE SERVICE
- Use handcuffs only when necessary and not as a routine measure.
- Inform the person of the reason for the restraint.
- Avoid handcuffing behind the back where there is a medical risk; front-cuffing may be appropriate in such cases.
- Remove handcuffs once the risk of escape or violence has ceased, such as when the person is securely in custody or before the court.
- Maintain proper records explaining why restraints were used.
CONCLUSION
Handcuffing, in itself, is not unlawful. What makes it unlawful is the absence of a legal basis, the use of excessive force, or its use as a tool of humiliation. The 1992 Constitution seeks to balance police powers with the protection of human dignity. For law enforcement officers, the guiding principle is simple: restrain to protect, not to punish. For citizens, unlawful handcuffing is a violation of rights that can be challenged in court or reported to CHRAJ.
Djandoh Oliver
LLB, MBA, Credit Analyst, Project Analyst, LL.M Candidate
