The Power to Arrest

Police have the power to arrest people in certain circumstances. When exercising the powers of arrest an officer must comply with basic safeguards. These include that the person conducting the arrest must tell the person that they are under arrest and why they are being arrested.

It is a criminal offence to resist arrest, however the offence can only be proven if police are ‘in the execution of their duties’. What this means is that if a police officer is unlawfully arresting someone, a person charged with resisting that arrest will have a defence. 

When can a police officer arrest a person?

The NSW Supreme Court has held that police should exercise their arrest powers as a last resort. 

Police are permitted by law to arrest a person in certain situations:

• a court has issued a warrant for their arrest (the warrant need not be in the officer’s possession);
• they have committed or are about to commit an offence;
• the officer suspects on reasonable grounds that they have committed an offence;
• they have breached a bail undertaking or agreement, or the officer believes on reasonable grounds that they are about to do so;
• the officer suspects on reasonable grounds that they are unlawfully at large (other than because of escaping from lawful custody), meaning that they are at large at a time when they are required by law to be in custody in a correctional centre.

However, they can only do so where they suspect on reasonable grounds that arrest is necessary to:

• ensure the person’s appearance before a court in respect of the offence;
• prevent a repetition or continuation of the offence or the commission of another offence;
• prevent the concealment, loss or destruction of evidence relating to the offence;
• prevent harassment of or interference with a person who may be required to give evidence;
• prevent the fabrication of evidence in respect of the offence; or
• preserve the person’s safety or welfare.

What happens when someone is arrested unlawfully?

There are a number of rules outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) that govern arrests. Unlawful or improper conduct by a person carrying out an arrest can have significant consequences for the outcome of a person’s criminal case; it may result in evidence being excluded or may even provide a defence to a charge. In addition, a person may have a viable civil claim against police for an unlawful arrest. 

The factors detailed below may arise in the context of an unlawful arrest. 

The use of force

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person. The use of unreasonable force can render the arrest unlawful and may also constitute an assault. 

The decision to arrest rather than exercise an alternate power

Police don’t always need to arrest a person who has committed an offence. In some cases, they can warn a person, fine the person or issue them with a future court attendance notice. The courts have looked unfavourably on arrests that have been conducted in situations where an alternative power would have been appropriate. The NSW Supreme Court has held that a court attendance notice (CAN) or a summons is generally the appropriate way to deal with cases of alleged minor offences.

For example, in DPP v Carr, the court held that evidence of resisting, assaulting and intimidating police was improperly obtained because the accused was arrested for using offensive language in circumstances where a summons should have been used. Consequently, the magistrate was entitled to exclude such evidence and dismiss the charges.

No lawful basis to arrest

As explained above, police can only arrest a person in certain circumstances provided they have a reasonable suspicion the arrest is necessary for one or more of the specified purposes in s 99 of the Law Enforcement (Powers and Responsibilities) Act. If none of the relevant circumstances exist (for example, if there is no warrant, no offence committed or about to be committed or no breach of bail), or if the officer does not hold a reasonable suspicion the arrest is necessary, then the arrest may be unlawful. 

Special Arrest Provisions for Minors

The Young Offenders Act 1997 (NSW) provides that persons less than 18 years of age are entitled to be dealt with by way of a warning or caution rather than arrest.

This applies where the child has allegedly committed a summary offence (that is, one that is finalised in the Local Court) or an indictable offence that may be finalised in the Local Court.

These special provisions do not apply if the offence:

• is a traffic offence committed by a minor who was old enough to obtain a learner licence to drive the vehicle to which the offence relates;
• results in a death;
• is a sexual assault;
• is a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW);
• is a serious drug offence;
• involves violence; or
• would be more appropriately dealt with by another means because it is not in the interests of justice to deal with the offence by warning or caution in the opinion of the investigating official.

However, a child is not entitled to a caution if the child has been dealt with by way of caution on three or more occasions.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.