Criminal law - What are your rights and procedures if you are arrested?

Under Australian criminal law, there are very important procedures and rights attached to an arrest. While it is essential to co-operate with the police it is extremely important that you understand your rights and do nothing to prejudice yourself whilst in custody.The powers of arrest given to the police are extensive and allows them to arrest any person whom they reasonably suspect of having committed an offence or is about to commit an offence. Despite the reach of this power, you cannot be arrested simply for questioning except in relation to police suspicion that you possess stolen goods. Should the police wish to interview you then exercise your right to silence until your legal representative is present. Should police wish to arrest you they should make this clear to the suspect before being arrested. The power to arrest for an offence should not be exercised unless it is necessary to ensure the accused’s attendance before the court and only where a summons would be inappropriate.The person being arrested is entitled to know why they are being arrested and must be told the reason unless they make this practicably impossible. It is not necessary for the exact offence to be nominated and the arrest does not become illegal because later some other offence is charged. An arrest is not unlawful just because at some later stage the person arrested is acquitted of the charge. An arrest for any other purposes is unlawful including an arrest for the purposes of questioning. An unreasonable delay in taking an arrested person before a justice or releasing them on bail can result in the person being unlawfully detained. Resisting arrest is a serious offence and should be avoided. Do not struggle or dispute with the police officer arresting you, their right right to arrest you. This could constitute the serious criminal offence of resisting arrest.The New South Police arrests can either proceed by way of warrant or without one. Under the NSW Crimes Act a police officer can arrest a person without a warrant or if the arresting officer has a reasonable basis to believe that the person has or is about to commit an offence. The police have specific powers in relation to prohibited drugs and can search a person if they have a reasonable suspicion that an individual possesses a prohibited drug.When a person is arrested they are normally taken to a police station Basic details are obtained including name, address and occupation. The police will fingerprint, take photographs and in some cases attempt to have the accused take part in an identification parade which they do not have to do. The police custody manager will inform them of their rights and they should be allowed to contact a relative, friend or legal representative. The investigation period is normally limited to four hours with a further extension being sought in some cases. The investigation period is the time the police can hold someone prior to charging them. Following this there will be a period of intensive questioning where the police will ask the suspect detailed questions about the crime hoping to obtain confirmation. Often the police will have carried out substantial enquiries well before anyone is arrested and what they are seeking is confirmation of what they already know. The police must charge or release a suspect after expiry of the investigation period.Suspects are entitled to have a legal representative present during the interview and they do not have to answer any specific questions unless it is unlawful to do so. Police can request that a person provide their name and address where this is an unknown and it is an offence to refuse to do so. In motor vehicle cases the police are also entitled to know the identity of the driver. The suspects are entitled to exercise their right to silence without adverse impact. Should the suspect agree to answer questions then the police should warn them that answers they may give may be used in evidence against them in court. The custody manager at the police station is required to caution the suspect and summarise the provisions about detention. He is required to provide facilities for the suspect to communicate with a friend, relative or lawyer. If the police want to record a record of interview then always say you want to speak to a lawyer first. The only time police don’t have to permit communication is where there is a reasonable fear that it might lead to an accomplice escaping or evidence being destroyed. Remember, police are experts in interrogation and a suspect needs to exercise great care not to prejudice themselves as a result of manipulative questioning techniques exercised by police and the only true safeguard is to retain a competent criminal lawyer from the beginning.

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