Arrest
NOTE: The information below is general in nature, and does not substitute legal advice. Contact a Legal Service for advice.
About Arrests
The police can arrest you if they reasonably suspect you have committed, are committing, or are about to commit an offence (an illegal act).
While the police may employ certain tactics, they must make it clear, by words or actions, that you are under arrest. If you are unsure, ask whether you are under arrest or are free to go. If not under arrest, you are free to go. If you are under arrest, you are not free to go until the police or a court releases you.
The police must not use excessive force when arresting you, but they can use force that is reasonably necessary, including using handcuffs or restraints.
The police can:
Arrest you without a warrant.
Arrest you without warning you first (but they often will warn you first).
Decide whether to arrest you and/or whether to charge you with an offence – either keeping you in custody or releasing you on bail. If you are charged (formally accused of a crime), you will receive a summons from the court advising when you must appear in court. The summons may also list the offence(s) with which you are charged, or you may be advised of these at a later date prior to the date when you must appear in court.
Detain you for up to 4 hours if you are suspected of committing a serious offence (which is an indictable offence or an offence punishable by imprisonment for two years or more (Summary Offences Act 1953 (SOA) s 78(10)).
A magistrate can grant the police power to detain you for a further 4 hours. The time spent in custody before being charged may be longer than 8 hours due to transport delays, time spent organising a lawyer, or any delay occasioned by allowing the person to receive medical attention (SOA s 78(2a)).
Refuse to offer you a phone call at the police station if they believe it might cause or contribute to offending or tampering with evidence (eg deleting footage from a mobile phone) (SOA s 79A(2)(a)).
It is an offence to give a police officer false information, so provide your real name, address, and date of birth if requested (SOA s 74A).
Before or instead of arresting you, the police may invite you to come with them or to answer questions voluntarily. If you ‘voluntarily’ choose to go with them (to a police station or elsewhere) or to answer their questions, you can still be arrested at any point. Remember that answering police questions is unlikely to work in your favour. Even if their questions seem harmless, or you are just having an informal conversation, or you feel that you might be able to just ‘clear things up’ - this is rarely the case and it is impossible to know the direction a ‘conversation’ may take.
It is an offence to resist arrest or hinder the arrest of other people (see below). If you think the arrest may be unlawful for any reason, such as the use of excessive force, you can raise this at a later stage. Try to remember exactly what happened, what reasons were given for your arrest, and the identities of the police involved, by ID number or a description. Write these details down as soon as possible.
Aside from having to provide your real name, address, and date of birth, you have the right to remain silent, regardless of whether you are under arrest, a suspect, or simply a witness. If you are arrested, it is recommended that you do not provide any additional information (even if you think it may help) without first speaking to a lawyer or having a lawyer present.
If you intend to remain silent, you can say “I will not answer any questions without a lawyer present”, except for providing your name, address, and date of birth. Apart from providing your name, address, and date of birth, do not answer any questions, even if they sound harmless and you feel pressured. Remember to be polite, even if the police are not.
You may have your photo and fingerprints taken, along with a cheek swab or finger-prick to obtain a DNA sample. You do not have the right to refuse a request for these simple identity procedures, and it is an offence to resist. Police can use reasonably necessary force if you refuse to cooperate.
If someone you know is arrested and invites you to support them during a police interview, be aware that you might not be given time alone with the arrested person. Police may want you to be silent during an interview. Your role is to support your friend. Be polite but assertive. Usually, it is best to remind the arrested person that they do not have to answer questions and that it is best to get legal advice before speaking with the police.
Being arrested
If the police choose to take you into custody, this is the usual process:
You may be handcuffed.
You may be taken in a police vehicle (marked/unmarked vehicle, police van or a prisoner bus). People may be separated by gender.
You may be taken to the City Watchhouse or police station.
Your property will be confiscated and held by police until you are released. They will note your property on a receipt and ask you to sign for it. You must sign the receipt to have your property returned to you on release.
You may be kept in a holding cell. You may share the cell with others or be held alone.
You are likely to be searched and items may be seized, such as your mobile phone, banners, climbing gear, lock ons, notebooks etc.
Cells may be too hot or cold. There may be bright lights on 24/7 and there will probably be a security camera.
If the police think you are at risk of harming yourself, they may place you in a padded cell and remove any clothing that you could use to harm yourself, and they may arrange for you to attend a doctor or hospital.
You can ask to use the toilet, which may not happen immediately or in private.
You may have your photo and fingerprints taken, along with a cheek swab or finger-prick to obtain a DNA sample. You do not have the right to refuse a request for these simple identity procedures, and it is an offence to resist. Police can use reasonably necessary force if you refuse to cooperate.
You may be asked questions about your health to determine if you have any medical needs, such as regular medications. If you do have health conditions, you should tell the police, as this may require a medical examination and/or your use of prescription medications.
Your Rights
You have a right to make two phone calls; one to a friend or relative, and one to a lawyer.
You may be asked to answer questions, to be interviewed, or to provide a statement. This is a request and is not a requirement. It is usually recommended that you refuse to answer questions – but you must provide your name, address, and date of birth.
You have a right to have a lawyer, friend, or relative present during a police interview. You should seek legal advice before agreeing to a police interview. There may be a duty solicitor available, or you can contact the Legal Services Commission, or a legal support person may be made available by your organisation, or you can organise a private lawyer for advice. If you choose not to participate in an interview, police may be chatty and courteous and make you feel uncomfortable, disrespectful, or like you have something to hide. You can say ‘No comment’ or ‘I do not wish to make a comment until I speak to a lawyer.’ There is no such thing as an ‘off the record’ conversation with police. Be polite and respectful even if the police are not. You have a right to silence and you should exercise this right.