WHERE DO ARREST POWERS COME FROM?
When the Police are exercising their powers for an arrest, they must comply with the Law. The Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) Part 8 deals with the statutory powers of arrest. When the Police exercise an arrest, they must comply in particular with section 201 of the Act which states that an officer must state the reason for the persons arrest. The physical element of the arrest may consist of:
– seizing or touching the person with a view to detaining them;
– words intended to convey to the person they are under arrest; or
– words or conduct that make it clear to a person that they are not free to go.
WHEN CAN YOU BE ARRESTED?
The Police can arrest you for the following reasons:
– There has been a warrant for your arrest;
– The officer believes on reasonable grounds that you are committing an offence; or
– You have committed an offence or are about to commit an offence.
CAN I BE ARRESTED WITHOUT A WARRANT?
Section 99 of the Act provides the general powers to arrest an individual for an offence, without a warrant. Under this section, you may be searched without a warrant if the arrest is reasonably necessary for any one or more of the following reasons:
– to stop the person committing or repeating an offence or committing another offence;
– to stop the person fleeing from a police officer or from the location of the offence;
– to ensure that the person appears before a court in relation to the offence;
– to obtain property in the possession of the person that is connected with the offence; and/or
– to protect the safety or welfare of any person (including the person arrested).
The officer must be able to clearly articulate their reason for the arrest and demonstrate that they were satisfied the arrest was reasonably necessary for the stated reason. An arrest made in contravention of section 99 of the Act will be unlawful.
SAFEGUARDS
When a Police officer exercises their power to arrest, they must comply with Part 15 of LEPRA (safeguards relating to powers). This requires the officer to provide the arrested person with the following:
– Evidence that they are a police officer (unless they are in uniform),
– Their name and place of duty, and
– The reason for the arrest.
You must do this as soon as it is reasonably practicable to do so.
CAUTIONING
Before questioning an arrested person, the officer must caution the person that they do not have to say or do anything but that anything they do say or do may be used in evidence.
USE OF FORCE
When exercising a power to arrest, the officer may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. The reasonableness of their actions will depend on the circumstances.
SEARCHING A PERSON UPON ARREST
A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything:
– That would present a danger to a person;
– That could be used to assist a person to escape from lawful custody;
– That is a thing with respect to which an offence has been committed;
– That is a thing that will provide evidence of the commission of an offence; or
– That was used, or is intended to be used, in or in connection with the commission of an offence.
AFTER THE ARREST
It is a requirement that an officer take the person arrested before an authorised justice. The officer must, as soon as is reasonably practicable, take the arrested person before an authorised officer to be dealt with according to the law.
DETENTION FOR INVESTIGATION
A person who has been lawfully arrested under this section may be detained under Part 9 by any police officer for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
Investigation period
The investigation period for which the person may be detained begins when they are arrested and ends at a time that is reasonable having regard to all the circumstances. Section 115(2) of LEPRA states that the maximum investigation period is 6 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.
Section 116 of LEPRA sets out the circumstances that must be taken into account in determining what is a reasonable time. It includes things such as the person’s age, physical capacity and condition and mental capacity and condition, and the number, seriousness and complexity of the offences under investigation.
Extending the investigation period
Before the end of the investigation period, the Officer may apply to an authorised officer for a warrant to extend the maximum investigation period. The person or their legal representative may make representations to the authorised officer about the application.
Section 118 of LEPRA states that the authorised Officer may issue a warrant that extends the maximum investigation period. The maximum investigation period cannot be extended more than once.
For more on potential threats to our liberty with search warrant amendments, check out our blog post here.
If you are either being investigated, have been arrested, or unlawfully arrested, have a read of our tips for choosing the right criminal lawyer.