This article was written by Aurhett Barrie - Solicitor – Sydney
As a former Judge’s Associate Aurhett has rare insight into how cases are heard and decided. This knowledge allows him to persuasively advocate for his clients’ interests, both inside and outside of a courtroom. He has spent his career practising exclusively in criminal and traffic law and has advised hundreds of clients on an extensive range of matters. He takes...
Police Powers
This article contains information on the police’s responsibilities in exercising their powers and the legal safeguards that ensure that police act within their powers and are held accountable for their actions. In particular, you will find useful information about a person’s rights in relation to answering police questions, arrests, searches, forensic procedures (e.g. DNA sampling) and bail determinations by police.
The police have broad powers to carry out their duties, but these are balanced by responsibilities and legal safeguards that protect an individual’s rights. If police do not comply with the required conditions before and when exercising power it may mean that they have acted unlawfully. In some cases, this may lead to the exclusion of evidence sought to be relied on by the prosecution and the prosecution being unable to prove its case.
In certain circumstances, the unlawful or improper conduct of police may give rise to the availability of a civil suit against police for compensation.
General Legal Safeguards
The large majority of police powers are provided under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly known as LEPRA. Other powers are provided by various pieces of legislation and the common law (judge-made law).
Requirement to Provide Certain Information
Perhaps the most basic and general condition that applies to the exercise of a range of police powers is that before (or as soon as reasonably practicable after) exercising most powers the police officer must provide a person with:
- evidence that he/she is a police officer (unless he/she is in uniform);
- his/her name and place of duty; and
- the reason for the power being exercised.
The police must do this when they:
- stop, search or arrest a person;
- stop or search a vehicle, vessel or aircraft;
- enter or search premises;
- seize property;
- require the disclosure of the identity of a person (including requiring the removal of a face covering for identification purposes);
- give or make a direction, requirement or request that a person is required to comply with by law;
- establish a crime scene at premises (other than a public place).
- police do not have to do this when they:
- enter or search a public place;
- execute a covert search warrant;
- detain an intoxicated person.
Requirement for Police Officers to Give Warnings
If the police officer is exercising a power that involves making a request or issuing a direction (for example a “move on” direction), he or she must, as soon as reasonably practicable after making the direction, requirement or request, provide the person with a warning that they are required by law to comply. Once the warning has been given, it is an offence not to comply.
A warning is not required if the person has already complied with or is in the process of complying with the direction, requirement or request.
To find out more about police powers please select the topic you are interested in from the list below:
If you feel that a police officer is acting unlawfully or beyond their powers, it is still advisable that you comply with police so that you do not expose yourself to criminal charges. As above, in certain circumstances, the unlawful or improper conduct of police may give rise to a defence to a criminal charge or the availability of a civil suit against police for compensation, so it is better to comply and pursue a remedy at a later stage.
If you require legal advice on police powers or any other legal matter, please contact Armstrong Legal.