What is ‘arrest’?

Arrest is the process by which police may lawfully take a person into police custody. Usually, an arrested person will then be forced to accompany police to a police station or watch-house for processing before later being sent to a court or released on bail.

Process of arrest

If you are arrested it is in your best interest to co-operate with the police and assume that the police have the power to arrest you. Otherwise you may end up with further charges against you such as obstructing police. You can always challenge the legitimacy of arrest later.
 
Because a person’s liberty is at stake, arrest powers are strictly regulated.

You do not have to go with police to the station for questioning, unless you are actually arrested or formally ‘detained for questioning’ about an indictable offence (a separate process to arrest).

There are normally three key elements to an arrest:

1. the police officer states ‘you are under arrest’ (or similar words);
2. the police officer states the reason for the arrest; and
3. you either voluntarily give in to the officer’s control, or are physically subdued by the police officer.

Sometimes, the police will only tell you that you are under arrest after they physically take charge of you.

Warrants

You may be arrested by the police if they have a warrant (that is, written authorisation from the court signed by a judge, magistrate or justice) for your arrest.
 
However, in certain circumstances, police can arrest you without a warrant.
 
You may be arrested without a warrant if the police reasonably suspect that you have committed or are committing an offence and acting without a warrant is, in the police officer’s opinion, reasonably necessary for a number of set reasons, including:

1. to stop you from completing or repeating an offence;
2. to make enquiries about your identity;
3. to ensure that you are brought before a court;
4. to protect you or another person;
5. to stop you running away from the place of the offence;
6. to preserve evidence, to prevent you from making up evidence or destroying evidence, or to stop you from interfering with witnesses;
7. because you have disobeyed a police direction or you have assaulted or obstructed a police officer; or
8. because you are breaching a domestic violence protection order.
9. because the offence is- 

            (a) an offence of failing to comply with a direction to leave a prison; or 
            (b) an offence which is a security offence in a prison.

Police can also arrest you without a warrant because of the nature and seriousness of the offence you are suspected of committing.

Children

A police officer may arrest a child without a warrant if the police officer reasonably suspects the child is committing or has committed an indictable offence or for a less serious offence if arrest is necessary to prevent further offences, loss of evidence or to ensure the child’s appearance before a court.

Questioning

Police have a general power to question you if you have been detained or arrested. In response to questioning, you can assert your right to remain silent.

If you have been arrested for committing an indictable offence (a serious offence), or you are being questioned because you are suspected of having committed an indictable offence, the police must caution you about your right to remain silent. They also must advise you, before they question you, of the possibility that any statement you make might later be used as evidence against you.
 
If it appears that you need an interpreter, the police must enable an interpreter to be made available for you.

Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may:

• telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and
• telephone or speak to a lawyer of the person's choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person.
 
If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.

Unless special circumstances exist a delay of two hours may be unreasonable.

Police can only detain you for up to eight hours unless the period is extended by a court order. Police can only question you for up to four hours in that eight hour period.
Police can only question a child about a serious matter if there is a parent or independent person present.

Similarly, police must notify a legal aid organisation (such as ATSILS or LAQ) and make special arrangements for support for Aboriginal and Torres Strait Islander people before questioning begins.
People with impaired capacities must also be given an opportunity to speak with a support person, but questioning should not proceed if the person does not actually have legal capacity to continue with an interview.

People should not be questioned while they are still under the influence of drugs or alcohol.
Police are expressly forbidden from obtaining a confession by threats or by offering promises of any kind, such as no jail time or a reduced sentence.

Search

Police officer may search person in custody.

A police officer may seize from the person anything found during the search that the police officer reasonably suspects may provide evidence of the commission of an offence.

Also, the police officer may take and retain, while the person is in custody:

1. anything that may endanger anyone's safety, including the person's safety; or
2. anything that may be used for an escape; or
3. anything else the police officer reasonably considers should be kept in safe custody while the person is in custody

Identifying particulars

In most cases you will be obligated to provide identifying particulars by allowing police to take photographs, fingerprints and DNA where you are given a Notice to do so.

Release

The police must release you:

1. without charge or a court date to attend;
2. after charging and having you sign a bail undertaking to attend court on a specified future date;
3. on cash bail;
4. after issuing you a Notice to Appear at court on a specified future date.
5. refuse to give you bail and keep you locked up until you go to court for a bail hearing

At Masons Lawyers our Lawyers have extensive experience in advising parties about their rights and obligations during the arrest process. If you need assistance in any other criminal matters please contact the experienced criminal lawyers at Masons Lawyers.
 
Craig Mason
Director
Masons Lawyers Brisbane

Our experience is your advantage.