Police Investigation Powers and Procedures
Police have wide powers to carry out investigations and arrest people suspected of committing an offence. If you are arrested, police are obliged to make it clear that an arrest is being made and why it is happening. When police place a person under arrest, that person is technically placed into the custody of the police. Police cannot use excessive force to make an arrest.
When Can a Police Officer Make an Arrest?
A police officer can arrest a person for a serious offence if they suspect that the person has committed, is committing or is just about to commit an offence. A serious offence includes one where the penalty is or includes a term of imprisonment of five years or more, or a breach of a Violence Restraining Order.
Where a police officer suspects that an offence has been committed or will be committed but the offence is not a serious offence, the police must also be satisfied that another condition will be met if the person is not arrested.
These include one of the following:
• it will not be possible to obtain the person’s personal details;
• the person will continue to repeat the offence;
• the person will commit another offence;
• the person will endanger another person’s safety or their own safety; or
• the person will interfere with witnesses or obstruct the course of justice.
Without these conditions being met, police cannot arrest a person. There is no power under the Criminal Investigation Act 2006 allowing police to arrest a person merely because they might be of interest to Police.
Once a person has been arrested, they become an arrested suspect. Police may detain that person in custody to investigate any offence suspected to have been committed, interview the suspect, conduct a search of the suspect’s property, or decide whether to charge the suspect with an offence. An arrested suspect will be given the opportunity to speak to a lawyer before participating in an interview with police. A person cannot be held for longer than six hours unless a senior officer determines that an extension of time is justified.
Accompaniment – section 28 Criminal Investigation Act
In some circumstances, police may ask a person to accompany them, but that person is not under arrest. Police may have formed the view that the person can assist with an investigation, but the person is not placed in lawful custody when accompanying police.
A police officer who requests a person to accompany them is obliged to advise the following:
• that the person is not under arrest; and
• that they do not have to accompany police; and
• if a person accompanies police, they are free to leave at any time.
However, if a person does accompany police and ‘assist’, the officer may then form the belief that they have been involved in the commission of an offence. The officer may then have the grounds to make an arrest.
For further information contact Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950, Shirley Casey on 0458 850 033 or Mel McEwen on 0437 030 713.