Introduction to search and arrest

Most powers of arrest, search and interrogation are contained within statute. However, these powers are not limited to the police, but include other officials such as Parks and Wildlife Service officers, Custom officers and Fisheries officers.

The functions of arrest, search and interrogation exercised by police officers are standard procedures. There are limits to what a police officer can do, or require of a person. There is a complex set of rules which has evolved in an effort to strike a balance between protection of individual rights/liberties and effective law enforcement. A very basic description of these rules is that there is a need to consider the interests of justice and whether a police officer has abused their position of authority.

With some exceptions, the privilege against self-incrimination prevails throughout the process of arrest and interrogation. Indeed, the whole basis of the common law is the right of the individual to refuse to answer questions put by persons in authority and also to refuse to accompany those in authority to any particular place unless arrested.

Detention

The police have no power to detain a person to assist in their enquiries or for any purpose, unless they have been lawfully arrested. To detain a person other than by lawful arrest is ‘false imprisonment’ and is a civil wrong; however it is often difficult to prove unless the circumstances present a serious abuse of police powers. The police can ask a person to accompany them to the police station for questioning if it is made clear that the person need only go if they so wish. If a person is unwilling to accompany police when asked to do so, they should ask whether they are under arrest. Going along without asserting this right may mean the police acted lawfully. Always ask whether you are under arrest. When you are under arrest you have rights.

Police sometimes arrest a person on a ‘holding charge’. This means that the person is charged with a minor offence so that they can be interrogated on other matters at the police station. Whether or not the holding charge is eventually prosecuted does not matter so long as when the person was arrested they were at the time liable to a legal arrest by the person who arrested them (Broughton v Williams (1932) 28 Tas LR 1). This is why it is important to know your legal rights before answering any questions.

Your rights when you are NOT under arrest

You always have the right to silence, but police officers also have the right to ask you questions just as any person has such a right. When you are NOT under arrest you have the right to depart, unless the police officer who has stopped to question you has a reasonble ground to believe that you have committed an offence. Think about the situation you are in when a police officer stops you. If you are simply walking on the street and a police officer stops you and asks you for your name and address it is your right to choose whether or not to answer them. Remember to ALWAYS be courteous. Using abusive language to a police officer is an offence in itself.

You also have the right to refuse a search of your person, but remember – if you have been doing something that would cause an ordinary person to believe that you have committed an offence, then you are obligated to allow a police officer to search you. This is NOT an arrest.

If you believe that a police officer has stopped and searched you with no reasonable grounds and there is a subsequent charge that arises, such as assault police if you try to resist, you need to speak to a legal practitioner straight away. Police actions are carefully scrutinised because each police officer exercises such extraordinary powers to interfere with the privacy and liberty of the individual.

Having rights does not mean that if you are doing the wrong thing that you can get away with it by pointing a finger at a police officer.

Your rights when you ARE under arrest

When you are under arrest you have a number of rights. The first is that you are arrested with reasonable force (s26, Criminal Code). The second is that you are entitled to know the reasons for your arrest (s301(2), Criminal Code). A police officer will generally lay hands on you and indicate ‘you are under arrest for …’. You have the right to ask WHY. The arresting officer should also tell you something along the lines of ‘you have the right to remain silent, anything you say or do may be used against you in a court of law, do you understand?’. In criminal law, silence is golden.

If you believe that you are being arrested as a means of harassment you need to say something along the lines of ‘I do not believe you are arresting me lawfully.’ Be polite. Be calm. Be courteous. Make your concern clear to the custody officer at the police station. Do not be aggressive or rude. Police officers are people too.

Your other right is to communicate with a friend or relative AND a legal practitioner (s6, Criminal Law (Detention & Interrogation) Act). This is to ensure that someone knows where you are, and so that you can seek legal advice before being interviewed. You DO NOT have to consent to an interview. You can insist on having a lawyer present. There is NO power for an interview to be conducted in the absence of a lawyer. Silence, again, is golden.

If you do not want to be interviewed, you can indicate to the investigating officer/s that you would like to have your bail considered. Police have powers of reasonable detention (s4, Criminal Law (Detention & Interrogation) Act) where investigations are being carried out with your cooperation. If you are not consenting to the interview, your bail should be considered as soon as reasonably practicable. If the offence for which you have been arrested is a serious offence, you will likely remanded to the Remand Centre before the question of bail is considered, most probably by a justice or magistrate.

Search of the person

While there are restrictions on the extent of search to which a police officer can subject an individual, dependent on their reasonable belief or permission from a magistrate, when you are placed in a Remand Centre for any period of time there are mandatory protocols of search for entry into those centres. These protocols are in place for your safety, the safety of corrective officers, the safety of other inmates, and for police officers. These protocols involve a strip search to ensure that you are not in possession of any items that are either criminal, evidence of an offence or capable of causing harm to you or others.

These searches should be conducted with consideration for your dignity, and with as little interference with that as possible.