5. Managing Suspects &offenders Flashcards
Section 39 Crimes Act 1961. Force used in executing a process or in arrest. How much force can be used?
such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner: Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.
What is Section 40 of the Crimes Act 1961
Prevent escape or rescue, May use reasonable force to prevent escape of a person trying to avoid arrest. To prevent the escape or rescue of that person after the arrest.
Prevention of Suicide - How much force can be used and by whom?
Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one
Section 202A of the Crimes Act 1961. What is the penalty?
(5) Every one is liable to imprisonment for a term not exceeding 3 years – (a) Who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or (b) Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence. (6) It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
Section 202A of the Crimes Act 1961. What is a disabling substance and what is an offensive weapon?
offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use. offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use. disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him for such use.
Tell me about Section 42 of the Crimes Act 1961. relating to Breach of the peace
Every one who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to give him into the custody of a constable: force reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal. (2) Every constable who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing it. (3) Every constable is justified in receiving offender
What was the outcome of case law around anticipated breach of the peace.
Waitangi day protest - These cases affirm that there is no power to arrest for an anticipated breach of the peace. The proper procedure where a breach is anticipated and the persons concerned fail to desist is to arrest for obstruction. So warn they will be arrested for obstruction if they do not desist.
What are the four key rules of the NZBOR?
When you are investigating an offence and you locate suspects or other people you think may provide useful information, you may ask questions but must not suggest that it is compulsory for the person to answer. If you want to question someone and you have sufficient evidence to charge that person with an offence, you must caution the person before inviting them to make a statement or answer questions. If you have arrested or detained a person pursuant to any enactment, you must caution them, even if you had already given the caution before the suspect was arrested or detained. There is no power to detain a person for questioning or to pursue enquiries,although a person can assist voluntarily with enquiries.
Freedom of expression and peaceful assembly- What are the five things police should consider?
Does the behaviour express a view on a matter of public interest? Does the behaviour intrude on the rights of others in a public space? Does this intrusion go beyond what a reasonable person, respectful of the rights to freedom of expression and assembly, could be expected to tolerate? Does the behaviour pose an actual risk of public disorder (e.g. is it intimidation, victimisation, bullying or pose a real risk of violence)? Does the behaviour warrant the intervention of the criminal law? Note: Before police become involved with a protester who has been asked to leave a government space, you should do your own assessment of the reasons why the official says that the protester has to be moved on. You should ask yourself, does the official’s reasoning make sense and does it justify police action, given an individual’s right to peaceful protest. If the protester is causing a hazard, or disrupting business, one option is to see if the protest action can be modified.
Under Section 21 of the Bill of Rights Act when is a search and seizure deemed reasonable?
Generally, a search or seizure will be reasonable if it is conducted under a statutory power and the public interest in administering criminal justice outweighs the individual’s privacy interest. Police have extensive search and seizure powers, with and without warrant, provided in statute
What is not considered a search?
Recent case law suggests a ‘search’ requires a conscious act of state intrusion into an individual’s reasonable expectation of privacy, as opposed to a mere observation. A search is not: kneeling and using a torch to observe an article secreted inside a car headlight asking a person to hold up a bicycle so the serial number can be checked asking a person to hold out their hands for inspection a voluntary request to a power company for aggregated monthly power usage data.
When is a reasonable search deemed unreasonable? Give an example.
A search that would otherwise be reasonable is unreasonable if it is carried out in an unreasonable manner (e.g. a strip search conducted in the street where there are no law enforcement considerations necessitating that approach and when the search could have easily been carried out in private).
Can a rub down search be carried out routinely?
NO- Unwarranted strip or rub-down searches may breach section 21 or s23(5) (see ‘Rights of people arrested or detained’). Deliberate degrading and repeated strip searching to punish a detainee may breach section 9 (see Right not to be subjected to torture or cruel treatment). The remedy for unjustified rub-down and strip searches is usually compensation, although this may be limited by the Prisoners and Victims Claims Act 2005.
Section 9 is particularly relevant to the treatment of prisoners. Why ?
Deliberate deprivation of a mentally unstable prisoner, or deliberately strip searching a prisoner in a public area in order to humiliate or subdue them, may breach section 9.
Under Section 22 _ Not to be arbitrarily arrested or detailed. When is a person considered to be detained? List three
‘Detention’ A person will be regarded as ‘detained’ if: • there is physical deprivation of a person’s liberty, or • there are statutory restraints on a person’s movement, or • they have a reasonably held belief induced by police conduct (or other official conduct) that they are not free to leave. Examples of arrest or detention include when a person has been: • formally arrested • handcuffed • locked in a room or building, or put in a place that they cannot leave voluntarily • placed in a police vehicle against their will.
When does holding a person in custody become arbitrary?
An arrest or detention will be ‘arbitrary’ if it is capricious or without reasonable cause. Also if the arrest/detention was unlawful or proper procedures were not followed. Before an arrest is made, the arresting officer must be clear in their own mind that the arrest is justified and reasonable, and that alternative action, such as a summons, is not appropriate. A failure to consider the discretion to arrest will be arbitrary.
Can you stop a vehicle to undertake general enquiries? Why or why not?
NO- It may be classed as an arbitrary detention. You can stop a vehicle to enforce any of the provisions of the Land Transport Act or Traffic Regulations under section 114 of the Land Transport Act 1998. You are entitled to stop a vehicle under section 9 of the Search and Surveillance Act 2012 for the purpose of arresting any person in the vehicle, if you have good cause to suspect that person of having committed an imprisonable offence or of being unlawfully at large (e.g. a person for whose arrest a warrant ) NOT a fines warrant. Any deviation from the above procedure will be viewed as an arbitrary detention, and any evidence seized as a result is likely to be ruled inadmissible
What should occur if a suspect wants to exercise the right to speak with a lawyer?
If the suspect indicates a desire to exercise their rights, the interview must be stopped until they have contacted a lawyer. Once the suspect has invoked the lawyer access right, Police are under a duty to refrain from attempting to elicit evidence from that person until they have had a reasonable opportunity to consult a lawyer.
Explain what a seizure is?
Seizure is ‘removing something from the possession of someone else’.
Section 23 what are the rights of a person arrested of detailed?
•be informed of the reason for arrest or detention at the time of the arrest or detention •consult and instruct a lawyer without delay and to be told of that right •have the arrest or detention’s validity determined by the Court by way of habeas corpus and to be released if it is not lawful •after arrest, to be charged promptly or released •if not released after arrest, to be brought before a court or tribunal as soon as possible •refrain from making any statement and to be informed of that right • be treated with humanity and respect.
How much time should be given to contacting a layer ?
You must make a reasonable, honest and determined effort to contact a lawyer. However, police are under no obligation to find for the suspect their lawyer of choice when the contact phone number cannot be found.
**What must questioning not amount to?( Practice note on Questioning)
Any questions you put to a person in custody, or in respect of whom there is sufficient evidence to file a charge, must not amount to cross-examination
Previously the Courts had permitted limited (not excessive) cross- examination of persons in custody. This Guideline is effectively a re- statement of Rule 7 of the Judges’ Rules. Depending upon the nature/extent of the breach, answers to questions obtained under cross-examination may be held to be inadmissible, particularly if the questioning is oppressive, overbearing or unfair.
Under the evidence Act 2006 when is a statement not admissable
Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30. These sections are: • the reliability rule (s 28) • the oppression rule (s 29), and • the improperly obtained evidence rule (s 30)
When must a judge exclude a statement?
“Once a breach of section 23(1)(b) has been established, the trial judge acts rightly in ruling out a consequent admission unless there are circumstances in the particular case satisfying him or her that it is fair and right to allow the admission into evidence.”
What does oppression mean in a legal sense?
oppression means— (a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or (b) a threat of conduct or treatment of that kind. Oppression is to be judged from the perspective of the defendant. The state of mind of the alleged oppressor is irrelevant in the sense that he or she could be unaware that their behaviour is oppressive
Explain the two tests a judge must apply to ascertain improperly obtained evidence?
determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
How should I record a statement
Where a person in custody or in respect of whom there is sufficient evidence to charge makes a statement, that statement should preferably be recorded on video or DVD. If not, the statement must be recorded permanently on audiotape or in writing. The person making the statement must be given the opportunity to review the tape or written statement or to have the written statement read over, and must be given the opportunity to make corrections and or add anything further. Where the statement is recorded in writing the person must be asked if they wish to confirm the record as correct by signing it
**What must police not suggest when speaking to people. ( Practice note on Police questioning)
Police may ask questions of any person to assist with inquiries. However, Police must not suggest that the person must answer.