Criminal Law

Are there any guidelines associated with handcuffing an alleged criminal?

Published in: November 2017

One of the most obvious signs that a person is under arrest can be gauged via the actions of a police officer slapping on the handcuffs on an alleged perpetrator. Some of us will also probably assume, that handcuffing a person is one of the automatic procedural elements that is associated with placing a person under arrest – but we’d be wrong. Believe it or not, there are many considerations that need to be taken into account by an arresting officer on whether or not to slap on the handcuffs. The actual approach is nuanced, and rather quite interesting.

Handcuffing a person who has been arrested is not mandatory  

There exists no general rule or requirement that a police officer must handcuff a person who is being arrested.

It might come as a surprise to readers that there is no obligation to handcuff a person who is arrested. However, the biggest revelation is perhaps that there is also no requirement for an officer to handcuff a person who is being transported from a goal, to the courthouse! 

When deciding on whether a person should be handcuffed, case law has stated, that the choice to handcuff a person lies within the surrounding circumstances, and that officers should always take the proper precautions to ensure the safety of themselves and the public. Additional circumstances in which placing handcuffs on a person may be deemed to be necessary, is to prevent the person from either committing any further offences, or stopping them from escaping.

Perhaps the most revealing aspect of the absence of a mandatory rule to handcuff a person, relates to the the fact that there is no general rule that an individual conveyed from a police station to a courthouse, also must be handcuffed, as Williams J noted in Leigh v Cole. His Honour remarked that handcuffing every person attending court, “seems to me to be an unjustifiable view of the law, and one which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publically through the streets.”

It should be noted however, that a judge who is presiding over a proceeding in court, can order a person to be handcuffed if he or she deems the action necessary due to the demeanour or mood of the person put in front of him or her, because ultimately it is the judge who is in charge of security within the courtroom, after all.

Can an arrest be invalidated due to unreasonable handcuffing?

Since the rule of handcuffing a person may not correlate with some of the assumptions we may hold, it is a sensible question to ask, whether or not the unreasonable handcuffing a person invalidates an arrest?

In Kumar v Minister for Immigration, Lockhart J in this particular case did feel that the handcuffing of the applicant was unreasonable. However, it still did not “vitiate the arrest of the applicant who was lawfully arrested, though not lawfully handcuffed.” 

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