Arrest, Detention and Charging Decisions Flashcards
What are the requirements when arresting a person?
Use words of arrest and MUST:
- Formally touch the person being arrested or,
- Have the person’s agreement to the arrest e.g nod or actively walk with you to patrol car
What is arbitrary detention?
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 a detention essential for the person’s personal safety)
• the arrest or detention is unreasonable or unnecessary in the particular case, or while the initial detention was appropriate, the detention continued for an unnecessarily long time.
Detaining a person for questioning without their informed consent (given after clear advice that they do not have to stay and answer questions) and without lawful authority is arbitrary detention.
Who can arrest for breach of the peace offences?
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 any offence punishable by imprisonment
• have good cause to suspect the person has committed a breach of the peace or an offence punishable by imprisonment (e.g. excess breath/blood-alcohol driving offences specified in Part 6 Land Transport Act 1998).
s 315(2) Crimes Act 1961
Anyone who witnesses a breach of the peace can intervene to prevent the breach continuing, and detain the person until they can be placed in Police custody.
How do you gain good cause to suspect?
- your own observations
- statements from witnesses
- admissions from the offender
- examining the scene
- forensic evidence.
What is your justification for arresting without warrant?
Constables are justified (i.e. not guilty of an offence and not liable to civil proceedings) in arresting a person without a warrant when they either:
- have a power to arrest the person under section 315 Crimes Act 1961 or some other legislation, and had reasonable and probable grounds for believing 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.
When can you detain an intoxicated person?
When they are found a public place or while trespassing on private property, you can detain and take them into custody if you reasonably believe they are:
•incapable of protecting themselves from physical harm, or
•likely to cause physical harm to another person, or
•likely to cause significant damage to property,
When exercising a warrant when do you not need to follow the normal requirement?
unless compliance with these requirements would endanger the safety of any person or prejudice the successful exercise of the entry and execution of the warrant.
Rights of person arrested/detained are?
To:
•be informed of the reason for arrest or detention at the time of their 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 and to be released if it is not lawful
•be charged promptly or released
•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.
What are the three types of observation checks for people in custody?
Observation check: Observe through a cell view port to check the detainee’s well being. If unable to confirm this, complete a verbal check.
Verbal check: Verbally rouse the detainee to establish well being and if there is no response complete a physical check.
Physical check: Enter the cell and establish well being.
CCTV is not an authorised means of monitoring or carrying out checks of detainees.
•Detainees should not be physically roused at every check unless their risk assessment indicates they need specific care, are intoxicated or exhibit any risk identifiers.
•Continual waking without due cause could be deemed as inhumane treatment and a breach of the New Zealand Bill of Rights Act and Crimes of Torture Act 1989.
How often must detainees be monitored?
- No specific care, the detainee must be checked at least every two hours.
- Frequent monitoring, the detainee must be checked at least 5 times per hour at irregular intervals
- Constant monitoring, the detainee must be directly observed without interruption.
While restrained by one or more of the following a detainee requires care and frequent monitoring:
•a waist restraint belt
•an ankle restraint (by plastic ties)
•a vehicle leg restraint
when not linked to another restraint
While restrained by one or more of the following a detainee requires care and constant monitoring:
•a spitting hood
•a combination of either a rear wrist and ankle restraint, or a waist restraint belt and ankle restraint, that are linked
•a restraint chair.
Note: See ‘Time limits for removal of certain mechanical restraints’ in the ‘Mechanical restraints’ chapter for the maximum duration for these type of restraints and the requirements for any extensions.
Anyone arrested or detained in Police custody must be continually assessed and monitored to determine:
- their physical and mental health, particularly whether they have any medical condition or warning signs indicating suicidal tendencies or risks of self-harm
- the level of threat the person may pose to Police employees or other people in custody
- any risk posed to them by other people in custody (e.g. because of the nature of the charge against them or their sexual orientation, affiliations or vulnerability to intimidation)
- any other risk that may arise from being in custody.
What is a good charging decision?
A good charging decision is made when the charges chosen adequately reflect the nature and extent of the criminal conduct (disclosed by the evidence) and provide the court with an appropriate basis for sentence.
When is a prosecution required?
The evidential test - Is the admissible evidence sufficient to provide a reasonable prospect of conviction? If a court (either judge or jury) was presented with all the admissible evidence, could they reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed the offence alleged?
The Public Interest test - The prosecution is required in the public interest. It is not necessary or appropriate to prosecute all offences for which there is sufficient evidence. Police must exercise their discretion as to whether a prosecution is required in the public interest.
