Arrest and detention - SUSPECTS Flashcards
What is arrest?
Lawfully taking a person suspected of committing an offence into custody or temporarily taking their liberty away for any of these reasons:
- safeguarding the public interest (e.g. by preventing the person committing further offences or from destroying evidence)
- ensuring the person appears in court
- protecting the person’s interests.
To be lawful the arresting officer must have a warrant for arrest or be acting under a specific statutory power providing for arrest without a warrant.
Arrest requirements
When you arrest a person, you must make it clear to the person by your words and conduct that they are being arrested and ensure the person knows they are no longer free to go as they please.
Words of arrest:
- formally touch the person being arrested e.g. place hand on shoulder
- have person’s agreement to the arrest or their submission to the arrest as a result of using force.
Note that other actions might be considered by a court to to be arrested if they caused the person to believe they were arrested. e.g. if you:
- physically restrained the person by handcuffing or holding on to them
- put the person in a locked interview room, cell, or Police car so they could not leave.
Words of arrest
Say to the person: “You have been arrested for (give reason) ….” and then advise them their rights as an arrested person.Use the caution printed on the insert card in your notebook as a guide on the advice to be given.
Detaining without arrest
Some legislation allows Police to detain a person without formally arresting them so that a legislation power can be exercised. e.g. police can detain people without arrest:
- to search for drugs under section 20 or 22 of the Search and Surveillance Act 2012.
- if they are exercising a search power in relation to a place or vehicle and need to determine if there is a connection between a person at the place or vehicle being searched and the object of that search. (s118 Search and Surveillance Act 2012)
- for breath and blood-alcohol testing under part 6 Land Transport Act 1998
- for care and protection while person is intoxicated and care cannot be provided by taking them to their place of residence of a temporary shelter (s36 Policing Act 2008)
- to obtain identifying particulars for summons under section 33 Policing Act 2008.
As with arrest, a detained person is deprived of their liberty and is not free to go as they please.
Words to convey detention
If you detain a person under a legislative power, say to the person “You have been detained for (give reason) ….” and then advise them of their rights as a detained person. Use the caution printed on the insert card in you notebook as a guide on the advice to be given
What is arbitrary detention?
Everyone has the right not to be arbitrarily arrested or detained s22 NZ BOR Act 1990
- Arbitrary detention is when you arrest or detain a person and you do not have a legislative power to arrest or detain that person an exception may be essential for the persons personal safety.
- The arrest or detention is unreasonable, the detention has continued for an unnecessarily long time.
- It may also be arbitrary detention if you arrest a person when in the circumstances of the case could have been by way of summons.
Detaining for questioning
You have no power to detain a person suspected of committing an offence for questioning or while enquiries are made, unless you are acting under legislation or you arrest them. Detaining a person for questioning without their informed consent is arbitrary detention.
Legislation allows particulars to be obtained
A person may be required to give their name, add,dob under section 176 sale of liquor act when you suspect the person is committing an offence against the act.
A driver of a vehicle may be required to give their name, add, dob and say who owns the vehicle if stopped under section 114 land transport act 1998.
A person may be detained and required to give particulars when a constable believes they have committed an offence and the constable intends to bring proceedings against them by way of a summons s33 Policing Act 2008
YOU MUST TELL THE PERSON THE REASON FOR YOUR REQUEST FOR PARTICULARS.
What are the consequences of arbitrary detention?
Statements made may be inadmissible in court.
The case against the person may be dismissed.
The arresting / detaining officer may be liable to civil litigation resulting in punitive damages.
Power of arrest without warrant
No one can arrest a person without a warrant except under the provisions of the crimes act 1961 or some other legislation expressly giving power to arrest without warrant s315 (1) Crimes Act 1961.
However while constables have a power to arrest without a warrant in many situations less serious resolutions should always be considered when appropriate
Arrests under the Crimes Act
Constables and anyone they call to their assistance may arrest and take a person into custody without a warrant when they
- find the person disturbing the public peace or committing an offence punishable by imprisonment.
- have good cause to suspect the person has committed a breach of the peace or an offence punishable by imprisonment.
Arrests under land transport act
In addition to land transport act where arrests can be made under section 315(2) Crimes Act 1961 e.g excess breath/blood alcohol you may arrest a person without a warrant under some land transport act 1998 provisions. e.g section 116 (1) failure to comply with directions given under section 113 e.g to provide name,add and other identifying particulars when asked or section 115 to prohibit driving. Section 120(1) when you suspect the person has committed an offence under section 58-62 of the act e.g driving under the influence or causing injury or death by carelessly using a vehicle.
Other legislation giving power of arrest?
Section 40 arms act 1983 - When a person is in possession of a firearm, pistol, air gun or restricted weapon and refuses to give or gives false particulars.
Section 50 Domestic Violence act 1995 when the person is suspected to committing a breach of protection order.
Section 59 Immigration act 1987 for the purpose of executing a removal order that has been served on the person.
MANY POWERS TO ARREST WITHOUT A WARRANT ARE RESTRICTED TO PARTICULAR CIRCUMSTANCES. ALWAYS CHECK THE RELEVANT LEGISLATION IF YO ARE NOT SURE.
Breaching Public peace
Breaches of peace occur when these events takes places or being threatened.
- serious disturbance or other forms of violence
- serious damage to property
You can arrest someone under section 315(2) Crimes Act who you witness breaching the public peace and the breach is continuing or you think is likely to be renewed.
However there is no specific offence for disturbing or breaching the peace once you have arrested the person you need to determine what other charges, if any should be filed against the person. e.g Release the person after one or two hours if you decide no charges will be filed.
GOOD CAUSE TO SUSPECT
- Own observations
- witness statements
- admissions from offender
- examining scene
- forensic evidence
Justification for arresting without warrant
Have a power to arrest the person under section 315 crimes act 1961 or some other legislation and had reasonable grounds to believe the person committed the offence or found the person committing a breach of the peace or received them into their custody from another person who they believe witnessed a breach of peace.
