WAS MY ARREST LEGAL?
When can the Police arrest me?
Arrests are a deprivation of liberty and should be carried out only when strictly necessary. An arrest (especially of a vulnerable person) can cause shame and embarrassment, regardless of the outcome of any charges. The decision whether to arrest is discretionary, meaning police have the power to consider all circumstances, including the effect an arrest will have on a person.
Police powers to make an arrest are derived from legislation commonly known as ‘LEPRA’[i], and common law cases. LEPRA was amended recently to lower the threshold for arrests by requiring police to only be satisfied an arrest is ‘reasonably necessary’, as opposed to the previous rule that police needed ‘reasonable grounds to suspect’ the person of committing a crime.
Police can arrest you in the following circumstances:
- They have a warrant for your arrest:
A warrant is a written authority from a Magistrate or Judge that allows the police to arrest you. When police ask the court for a warrant, they need to show they have a basis for it, which can be one of the below reasons.
- The officer suspects on ‘reasonable grounds’ you have committed an offence or are about to commit an offence:
Reasonable grounds are when police are relying on a tip from a source, or because of a police officer’s observation of you, and what you are doing.
Police cannot arrest you just because you are hanging around in a suspicious location. For example, a place where everyone knows drug deals often occur. They also can’t arrest you if you are acting suspiciously; for example, wearing a hooded jacket and running past them.
In this example, however, if you appear as though you are under the influence of drugs, your actions could give police ‘reasonable grounds’ to suspect you are guilty of a crime – namely possession of drugs.
Once police have ‘reasonable grounds’, they also need to be satisfied your arrest is ‘reasonably necessary’ for one of the following reasons:
- to stop you from committing or repeating the offence or committing another offence,
- to stop you fleeing from a police officeror from the location of the offence,
- to enable enquiries to be made to establish your identityif it cannot be readily established or if the officer suspects on reasonable grounds that the information you provided is false,
- to ensure that you appear before a court in relation to the offence,
- to obtain your property connected with the offence,
- to preserve evidence of the offence or prevent the fabrication of evidence,
- to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
- to protect the safety or welfare of any person (including you),
- because of the nature and seriousness of the offence.
- If the officer suspects on ‘reasonable grounds’ you have breached your bail conditions:
This type of arrest cannot be random; police need to know who you are, your pending charges and bail conditions to be able to prove they suspect you are in breach.
Police often carry out spot checks on defendants to make sure they are abiding by their bail conditions. For example, if your bail condition is that you need to live with your parents in Sydney, the police might visit your residence on the Central Coast. If they find you asleep there in the middle of the night, that could give them ‘reasonable grounds’ to suspect you are not living with your parents and have breached that bail condition. In those circumstances, police can arrest you.
- You have breached the peace:
Breaching (or disturbing) the peace basically means you are acting in a way in public, that is disruptive to other members of society. Examples include if you are threatening violence, fighting or yelling.
Police cannot arrest you to investigate whether you have committed a crime, or because they want you to answer their questions.
An arrest must be for the ‘purpose of commencing proceedings’ against you, meaning that when police arrest you, they must be intending to charge you with a crime. It also means they need to get you before a court ‘as soon as practicable’.
What are not grounds for arrest?
Police can’t arrest you because:
- Of your criminal record – no matter how long or serious it is;
- You have pending criminal charges; or
- Of the company you keep – if you are hanging around with someone who is a known criminal or has been convicted of a crime.
What if I think my arrest was unlawful?
Only courts have the power to declare your arrest was unlawful.
The result of this might mean police can’t rely on any evidence they found on you during the search and arrest. For example, if during an illegal arrest the police find a weapon on you, the court may not allow the weapon to be used as evidence against you at trial.
What do I do?
If you suspect your arrest was unlawful, be calm, cooperate with police, but then tell police you want to make a phone call. Speak to an experienced criminal lawyer – and fast. Call us 24/7 on 1300 679 063.
[i] Law Enforcement (Powers and Responsibilities) Act 2002
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