Police Powers to Arrest without a warrant or court order
We have previously posted about your rights regarding police questioning and interviews and your rights when being questioned by police, now let us look at the powers of police to make an arrest.
The police have various powers to arrest a person however, the most common is the power of a police officer to arrest a person at any time of the day or night, without a warrant or a court order, if:
- the police officer finds a person in the act of committing a criminal offence; or
- the police officer has reasonable cause to suspect the person of having committed an offence or is about to do so.
A person who is arrested in accordance with a warrant issued by a Magistrate or a Judge does not have the same arrest rights as a person who is arrested under a suspicion of a crime, I will talk about this in a later article.
Generally, an arrest occurs when the police officer makes it clear (by words or by their actions) that you are under arrest or that you are deprived of your liberty.
When arresting you on suspicion, what are the police obligations and powers?
Upon arresting you on suspicion that you have committed an offence or are about to do so, the police officer who arrests you must clearly inform you of the fact that you are arrested and tell you the offence that you are suspected of having committed and they must do so in a way that you are able to understand.
The police officer must inform you of this regardless of whether you ask why you have been detained or arrested or not. Sometimes this cannot be done immediately, especially if the police are involved in some struggle with you although that will not often be the case.
At the time of being arrested it is advised you do not resist the arrest just because you do not think the police had a reasonable cause to suspect anything. Whether or not, at the time of making the arrest, the police officer did in fact have reasonable cause to suspect you had committed a crime or were about to do so, is a matter that will later be decided by a court.
The arresting officer(s) must take you and deliver you into the custody of a police officer who is in charge of the nearest custodial police station or designated police facility. That officer in charge then becomes responsible for your detention.
If you are arrested on suspicion of a ‘serious offence,’ namely an indictable offence or an offence punishable by imprisonment for 2 years or more, the arresting officer(s) have additional powers to detain you (before delivering you to an office in charge) for whichever is the lesser of the following time periods:
- The period of time it takes to complete the immediate investigation of the suspected offence for which you were arrested; or
- 4 hours from the time of your arrest.
How is the 4 hours calculated?
The police do not have to include any time spent:
- waiting for you to get legal advice from a lawyer (see below);
- waiting for a person whom you have requested be present during your detention to attend at the police station;
- while you receive any medical attention;
- the time that it took to convey you from the place of arrest to the police station where you are detained; or
- while you were being removed from the police station by order of a Magistrate.
(There is a right for the police to take you from the police station where you are detained but they need the authority of a Magistrate to do this).
A police officer who intends to issue an interim intervention order against you has the right to require you to remain at a particular place for so long as it may be necessary for the interim orders to be prepared and served on you.
(Our next article “Intervention Orders Issued by Police” will provide more details on police rights when issuing and serving intervention orders and your obligations under such orders)
When arresting you on suspicion, what are your rights?
If the arresting officer decides not to proceed to lay charges against you, even though you were arrested (and are now unarrested), then the police must return you to the place of arrest or such other place as you might reasonably nominate.
Your right to not answer questions
You have a right to not answer any questions the police may ask you, except those questions that you are required to answer as a matter of law, and the police must inform you of what those questions are. (You are always obliged to give the police your name and address when asked.)
You also have the following rights:
- To make one telephone call (in the presence of a police officer) to inform a nominated person of your whereabouts.
- To have a lawyer, a relative or a friend present during any interview. You must make this request and the police must facilitate the request and not commence interviewing you until the nominate person is present.
- If English is not your native language, and you are not reasonably fluent in English, you have a right to an interpreter and you are entitled to refrain from answering any questions until that interpreter is present and able to interpret for you.
- There are special rules for interrogation of a child that is arrested on suspicion of an offence, I don’t propose to set them all out here but primarily a parent or guardian must be present during any interview.
Before interviewing you, the police officer must inform you of all the above rights and must inform you that anything you do say will be taken down and used in evidence (usually whatever you do say is later used against you – although they do not say this).
Your right to apply for bail
As soon as you are brought before the officer in charge of the police station you have the right to apply for bail. You should be told of this right regardless of whether you raise this or not.
You are not eligible to apply for bail or be granted bail until the periods of detention set out above have expired.
The officer in charge of a police station has the right to give you bail. You should be granted police bail unless the police decide and give reasons why you should not. The reasons why police refuse bail are varied and many. Much depends upon the seriousness of the offence, your personal background, and the perceived risk to the alleged victim.
Refusing to answer questions is not a legitimate reason for refusing you bail. Because you answered police questions does not mean you will get bail or that it will be considered more favourably.
If you are refused bail by the police, you have a right to be brought before a Magistrate to apply for bail and the police are obliged to give their reasons why they refused you bail. Often you will not be brought before a Magistrate until the following day meaning you will likely spend at least one night in prison or police custody.
The Magistrates Court normally proceeds on the basis that there is an onus in your favour that you should be granted bail unless the police persuade the court otherwise or there are special circumstances.
In some special circumstances the right to bail is reversed in that you are not entitled to bail at all unless you prove that there are special circumstances why you should be granted bail.
There are so many situations where the onus of bail is reversed that we may have to make this the subject of a separate article.
If you are granted bail, it may contain a provision that you abide by the terms of any interim intervention order served on you. If the intervention order is invalid to the extent that it is inconsistent with any term of an order made in the Family Court, then possibly the bail condition is invalid also although I do not know of any case were this has been tested.
Warning
You must be very cautious not to make a bail application to the Court unless you are very well prepared because if you make the application in the Magistrates Court and are refused you will not have a further right to a bail application unless there are changed circumstances and that this may take some months during which time you will stay in custody.
If refused bail in the Magistrates Court, you have a right to a review of the bail decision to a single Judge of the Supreme Court and then that decision is final.
If you are about to be interviewed by police and you are concerned about being arrested and refused bail, it is essential that you have a consultation with a lawyer to determine your rights in the circumstances of your case, prepare a strategy on how to deal with a bail application if you are refused police bail and be advised of the legal costs of that strategy.
Free First Consultation at Northside Lawyers
If you have a need for urgent legal assistance prior to a police interview we can provide that advice and be present during any police interview, negotiate with the police over police bail and if necessary be present and represent you in relation to court ordered bail where police bail is refused.
At Northside Lawyers we can provide you with a free consultation to give you some insight into your situation together with an estimate of the costs of our assistance either during a police interview or negotiating with the police over police bail or making a court application if you are refused police bail.