Your rights when arrested
You are in trouble and the police are coming. What are your rights when you get arrested?
What is the definition of an Arrest?
There are four components involved:
- a seizure or touching of a person’s body
- followed by words such as “you are under arrest”
- the person’s submission to the compulsion and
- the police informing the person of the true grounds for his arrest.
To effect an arrest, a police must simply make clear to a person by what is said and done that he is no longer a free man.
The popular Television phrase called “Miranda rights” does not apply in Australia. That is an American legality.
There is no fixed formula when it comes to arresting a person but the arresting officer may have to use different procedures with different persons, depending on their age, ethnic origin, knowledge of English, intellectual qualities and physical or mental disabilities.
For example: The arrest by a constable of a totally deaf person who could not lip-read would be valid if the constable had done everything that a reasonable person would do in the circumstances.
An arrest constitutes an absolute restriction on a person’s freedom of movement. Hence every citizen has a fundamental right to know when he is under arrest.
Therefore, in order to avoid any doubt, as far as possible, the word “arrest” should be used by the arresting constable before he restricts your freedom.
Arrest by Warrant
Persons are seldom arrested by warrants these days. This is because of the statutory enlargements of the power to arrest without warrant. There are however two instances in which arrest by warrant occurs :
- where there is an “all-points alert” or “all-points bulletin” for some identified major offender who is wanted for some offence committed locally or interstate
- where a police officer is not immediately under pressure to make an arrest and has time to obtain a warrant to ensure that the arrest will not be held to be unlawful.
Arrest without Warrant
At common law, a private person’s power of arrest without warrant are extremely limited. A private person may arrest a person who has committed treason or felony or whom he reasonably suspects of having committed treason or felony.
A police officer’s power of arrest at common law are only slightly wider than those of a private person.
In Western Australia, the Criminal Codes provide that police officers may arrest, at any time, any person found committing an “arrestable” offence. An arrestable offence means an offence punishable with imprisonment, with or without any other punishment.
Force in Arrest
Sometimes a person to be arrested may resist arrest.
The force that can be lawfully used in effecting an arrest depends upon whether it is a “confrontation” arrest involving direct physical resistance, or a “fugitive” arrest involving flight.
The common law provides that in a “confrontation” arrest situation, the arresting officer can use an amount of force reasonably necessary to effect the arrest. Hence, the degree of force permissible will vary according to the degree of resistance to the arrest.
The common law applicable to “fugitive” arrest in cases of a person seeking to avoid an arrest for eg. the crime of treason, the arresting officer may be justified in killing the fugitive if he cannot be arrested in any other way.
In Western Australia, a police officer may lawfully cause death or grievous bodily harm to a person fleeing to avoid arrest where:
- the person to be arrested may be arrested without warrant
- the person to be arrested is reasonably suspected of having committed an offence punishable by death or life imprisonment
- the person to be arrested has been called upon to surrender.
After being arrested
After the arrest, a person may be searched. The search may extend to a medical examination of an arrested person.
It may also include fingerprinting or photographing or DNA profiling.
An arrested person has the right to remain silent when interviewed by the police.
This right to silence cannot be adversely commented on by the prosecution lawyers during the trial.
Of course, during questioning, if for example, the arrested person has an alibi, the sooner it is disclosed to the arresting officer, the earlier the arresting officer will have the opportunity to make the necessary enquiries to verify it.
A person arrested without warrant must be brought before a justice as soon as practicable after he is taken into custody. Where it is not practicable to do so within 24 hours, the arrested person must be brought before a clerk of petty sessions, inspector or sub-inspector of police, or a police officer in charge of a police station. These persons must enquire into the case and grant bail, except where the offence appears to be of a “serious” nature.
Practical Matters to Consider
Very often, a person who is arrested is faced with the following questions:
- Should I make a statement to the police? Statements to the police are usually made by way of a video tape interview or a signed statement. OR
- Should I maintain my right not to say anything.
Different lawyers handle those questions differently. For example, it could be argued that if you are innocent, the sooner you give the required information to the Police, the sooner they will see that you have not committed a crime and therefore release you or not proceed to charge you. That could sometimes save you time and legal fees.
However, there are some lawyers who believe that nothing should be stated to the police if you are arrested. That will ensure that nothing incriminating (no matter how innocent) is given to the police. By doing that, you get the police to prove their case against you and do not assist them to implicate yourself.
No one can tell you which is the better stance to take. Sometimes it can be said that if you make a statement immediately, you put your story across and it is more credible as it cannot be said that you have had time to fabricate a story to cover up. However, the down side is that you may say something that may implicate you in a crime.
Therefore the best course of action is to ask to see a solicitor immediately before making a statement to the police.
On the lighter side
Why does the law society prohibit sex between lawyers and their clients? To prevent clients from being billed twice for essentially the same service.
What do you call a lawyer who doesn’t chase ambulances? Retired. How many lawyers does it take to change a light bulb?
Six. One to change the bulb and five to write the environmental impact statement.
What do you call a smiling, sober, courteous person at a bar association convention? The caterer.
Why are lawyers like nuclear weapons? If one side has one, the other side has to get one. Once launched, they cannot be recalled. When they land, they screw up everything forever.
Many years ago, a junior partner in a firm was sent to a far-away state to represent a long-term client accused of robbery. After days of trial, the case was won, the client acquitted and released. Excited about his success, the attorney telegraphed the firm: “Justice prevailed.” The senior partner replied in haste: “Appeal immediately.”