The common law gives police the power to arrest persons who:
- They reasonably suspect has committed a crime;
- They reasonably suspect is committing a crime;
- They have a warrant arrest; and/or
- To prevent a breach of the peace.
An example of the powers in relation to a breach of the peace would be a person arrested inside a football ground for aggressive behaviour. The police can arrest such a person, escort them out of the ground and then release them, preventing a breach of the peace.
Do not attempt to resist arrest.
Resisting a lawful arrest can lead to charges of resisting arrest or assaulting police, so it is generally advisable not to resist arrest. Even if you think that the Police have no right to make an arrest (because for instance you do not think they have reasonable grounds to suspect you), it is best not to resist arrest.
Notification of Reason for Arrest
The police must notify the person arrested of the reason for the arrest.
If the person arrested created a situation where it was not possible for the police officer to tell them the reason for the arrest then this would not make the arrest unlawful. Police are sometimes confronted with situations where people attempt to flee or assault the police, and in such situations the conduct of the offender prevents the police officer from being able to discharge that responsibility.
Police Powers to Conduct Searches
While the Police do not have a general power to stop and search a person prior to arrest, searches of persons lawfully detained in custody are the subject of separate rules. Persons in custody may be searched and re-searched as is necessary to locate, seize and retain items which may:
- be evidence of the commission of an offence
- be used to facilitate escape
- endanger anyone’s safety
A police officer may take all particulars that are necessary to identify a person who is in lawful custody for an offence. If the person is over 14 years of age, the particulars may include fingerprints, palm prints and a photograph
Release on Bail
For less serious matters, a person charged with an offence will be released on bail from the police station. The station sergeant or the officer in charge of the police station has the power to make a decision to refuse or grant bail.
Bail can be unconditional bail (simply to turn up to court when required), or conditional upon meeting requirements about the lodging or agreed forfeiture of money (among other things).
If bail is refused by the police then the police must bring the offender before a Court as soon as is reasonably practical. The Court will then consider whether to grant or refuse bail.
Immediately after you have been detained, the police by law, must comply with the following:
- You must be advised of your right to communicate with a lawyer, friend or relative.
- You may request for the police to provide you with a telephone to communicate with a lawyer, friend or relative
- The police must halt any interrogation until the nominated lawyer, friend or relative arrives at the police station;
- You must be advised that a friend, relative, or your lawyer is seeking information about your whereabouts.
- You have the right to an interpreter.
- You have the right to medical attention.
- You have the right to reasonable refreshments and facilities.
Every person has the right to silence
The only exception to this is that a person must provide the police with their name and address, and in the case of a car accident, details of the accident. Otherwise, it is advisable not to discuss anything with the police before speaking to a lawyer, even for a person who believes they are completely innocent.
Sometimes when a person refuses to give the police a statement, the police will request to record that refusal on ERISP – Electronic Record of Interview of a Suspected Person (a machine which records the audio and video of an interview with police).
A person under arrest is not obliged to let the police record that refusal and we advise against letting the police do so. If the refusal is to be recorded on ERISP it is very important to make sure that questioning by the police does not go beyond asking whether the person wants to give a statement. Any other question should be answered “no comment”.
Contact Your Lawyer
A person under arrest has the legal right to be given access to a phone to contact a lawyer. A lawyer should be contacted by a person under arrest (or a friend or relative of theirs on their behalf) as soon as possible.
Depending on the situation, a lawyer may need to come to the police station or may simply be able to give advice over the phone.
At Brazel Moore Lawyers we have Lawyers experienced in criminal law who are able to help you in these situations.