IN06: The Power of Arrest (Katie) Flashcards
What two things could you say to someone you are questioning that lets them know they are not detained?
- “You are free to leave at any time” and
* “You do not have to remain to answer any questions.”
What would you say when you are informing someone of their rights upon arrest?
You are under arrest for (state an offence). You have the right to remain silent. You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court. You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions. Police have a list of lawyers you may speak to for free. Do you understand?
What you would say when informing someone of their rights upon being detained under an enactment?
I have reasonable grounds to believe/suspect that you have …………….
Because of this I now intend to search/detain you under (Act).
You have the right to remain silent. You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court. You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions. Police have a list of lawyers you may speak to for free.
Do you understand?
What must you do when arresting someone?
Make a statement: “You are under arrest”
PLUS
Formally touch the body of the person being arrested OR obtain an agreement from the person being arrested that they will submit to the process
AND
Give them their BOR AS SOON AS PRACTICAL.
What is the purpose of an arrest?
Arrest is lawfully taking someone suspected of committing an offence into custody or temporarily taking their liberty away for any of these reasons:
1) safeguarding the public interest (e.g. preventing the person committing further offences or destroying evidence)
2) ensuring the person appears in court
3) protect the persons own interests.
To be lawful, the arresting officer must have a warrant for the arrest or be acting under a specific statutory power providing for arrest without a warrant.
What does Section 23 of the NZ BOR Act 1990 ensure?
A person who has been arrested must be given their rights/caution immediately following arrest.
Where are a Constables powers to arrest without warrant found?
Either:
- Crimes Act 1961 Section 315
OR
- Some other statute giving authority to arrest e.g. Section 39 of the Summary Offences Act 1981.
These are the two most used by Police.
Crimes Act 1961 Section 315(2)(a) states:
HE FINDS
Disturbing the public peace
OR
Committing any offence
Punishable by imprisonment
Crimes Act 1961 Section 315(2)(b) states:
HE HAS GOOD CAUSE TO SUSPECT
Of having committed a breach of the peace
OR
any offence
Punishable by imprisonment
Summary Offences Act 1981 Section 39(1) states:
HE HAS GOOD CAUSE TO SUSPECT
Of having committed an offence against this act
Except sections 17-20, 25, 30-28
Summary Offences Act 1981 Section 39(2) states:
WITHIN HIS VIEW
Does an act the constable believes is an offence against sections 17-20, 25, 32-38.
And fails to give name and address or gives false details. Arrest for the offence seen being committed (e.g. excreting in a public place).
What protections are there in place for arresting the wrong person without warrant?
A constable will not be subject to criminal or civil action for arresting, without warrant, the wrong person, provided the constable has acted on reasonable and probably grounds. For example:
- The Constable is satisfied they have been given the correct facts from the victim and/or witnesses
- The constable is satisfied that all the ingredients of the offence are present
- The lawful power to arrest exists
- The identity of the offender is known, even if the witness has made a mistake.
What are the time frames for which someone may be held for breaching the peace?
TBC
