What are your rights when arrested

By National Criminal Lawyers


It may come as a surprise to learn that police powers of arrest are surprisingly wide and can vary widely depending on the alleged crime. National Criminal Lawyer (NCL) often gets asked what a person must or must not do when police alleged they have committed an offence and are being arrested.

This article deals with client’s rights when under arrest.

The power of police to arrest a person in NSW is found in the Law Enforcement (Power and Responsibilities) Act 2002 (“LEPRA”).

According to LEPRA, a police officer may arrest any person if the police officer suspects on reasonable ground that the arrest is required for :

  1. Preventing a breach of peace;
  2. To stop a person from committing an offence; and
  3. To preserve evidence;

National Criminal Lawyers has been very successful in having charges withdrawn because of police abusing their powers and not adhering to the provisions of LEPRA.

Who can arrest me and why?


A police officer does not require a warrant to arrest someone when they believe on reasonable grounds the person is in the process of (or have just committed) an offence. However, when the police have conducted surveillance or a covert-operation, the arrest will usually occur under a specific warrant.

Typically, the police will take the arrested person back to the station and then commence questioning.

A police officer can arrest you if, for example:

  1. You are committing an offence
  2. You have, or he/she has reasonable grounds to suspect that you have, committed an offence
  3. You are breaching the peace.
  4. You have breached your bail conditions
  5. A warrant (written authority) has been issued for your arrest
  6. He/she needs to serve an Apprehended Violence Order (AVO) on you or has a warrant for your arrest for serving an application for an AVO on you
  7. He/she wishes to apply for a provisional (urgent) AVO against you.

A private citizen can arrest you (citizen’s arrest) if:

  1. You are committing an offence
  2. You have committed an offence.

Police also have power under the Mental Health Act 2007 (NSW) to take you, using force if necessary, to a psychiatric hospital or unit if they deem necessary.

How should the police arrest me?

The person arresting you should:

  1. Tell you that you are under arrest;
  2. Tell you why you are being arrested;
  3. A police officer should also tell you his/ her name and place of duty; and
  4. Caution you that you have a right to remain silent and you have a right to say nothing.

The police officer may use reasonable force as necessary to arrest you however they cannot use unreasonable force. If you resist a lawful arrest you could be charged with an offence of “resist officer in execution of his/her duties”

What are your rights Under Arrest?


As a Person under Arrest, you are entitled to:

  • Any necessary medical treatment and procedures to be humane and in accordance with medical standards;
  • A reasonable degree of privacy from the mass media;
  • A reasonable opportunity to contact a relative or friend (this can be denied in certain circumstances);
  • A right to contact a lawyer;
  • An interpreter or other qualified person;
  • Right to silence (with exceptions) – See for example [hyperlink article to Right to Silence]
  • At the police station in which you are held you must be given a verbal and written caution ‘as soon as practicable’ after you are brought into custody and must be informed of your rights;
  • Application for Police bail;
  • In addition to the above, an arrested SUSPECT (someone not yet charged) is entitled to:
    • Be informed of the offence for which he/she has been arrested or any other offence he/she is suspected of having committed.
    • Be cautioned before being interviewed as a suspect.
    • A reasonable opportunity to contact a lawyer.
    • Not be interviewed until receiving the services of an interpreter (if non-English speaking) or other qualified person.

Additional Rights when aged under 18.


  • Police must notify your responsible guardian who is an adult that you have been taken into custody and keep them informed as to your whereabouts; and
  • The Police must make an attempt to contact your responsible adult guardian at the earliest opportunity of their intention to question you.


Police cannot do any of the following:


  • Use unreasonable force to arrest you;
  • Arrest you for a suspicion of a minor offence;
  • Use Arrest as a first resort when other options such as field can notice is available;
  • Refuse you medical assistance;
  • Refuse you to contact a lawyer
  • Detain you in custody for longer than 6 hours unless they have applied for a warrant or the charges are terrorism related.


Why is it important to contact National Criminal Lawyers when arrested?


If you have been arrested, our team at National Criminal Lawyers are well versed and specialists in representation while under arrest and at Bail. We provide a unique tailored made package with a number of options.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

ALWAYS obtain legal advice prior to agreeing to being questioned by police.

  • DO NOT answer any questions, except for providing your name and address;
  • DO NOT agree to be recorded;
  • DO NOT sign anything.



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