Use of Force and Bill of Rights Flashcards
What act and what section relates to preemptive force?
Section 48 of the Crimes Act 1961
When excessive force is not proportionate what section would apply?
Section 62 Crimes Act 1961
What happens when you attack a person in an unjust manner?
You loose the right to claim self defense. It would have been under section 48 but now this falls under section 62
What does section 32 of the Policing Act 2008 state?
Police may use reasonable, necessary force to obtain fingerprints, DOB, address, name (non compliance they are liable for imprisonment not exceeding 6mth $5000)
What does the policing act 2008 state in relation to section 32?
The police may take a person’s identifying particulars if they suspect them of committing an offence and intend to bring court proceedings against them. By way of summons can be detained for a necessary period of time any place of detaining (non compliance they are liable for imprisonment not exceeding 6mth $5000)
How does the Search and Surveillance Act 2012 help regarding section 11?
A section 11 search is a person who is locked up. This is to remove anything that could harm themselves or any other and also an item that maybe of value.
What is a TOR?
Tor is a tactical options report. This has to be filled out by shift end in relation to any force that I have used on any of my jobs.
What is the pyramid of police tactical options?
Firearms Dogs Taser Batten OC spray Open hand tactics Handcuffing Tactical communications
When is a medical examination report required?
Minor in nature use of force
What is section 39 of the crimes act 1961?
The use of force when carrying out an arrest or executing a warrant or process. Reasonable necessary and proportionate
What is section 40 of the Crime Act 1961?
Use of force to prevent a person trying to avoid arrest, escape or being rescued. Reasonable proportionate and necessary.
What does the crimes act 1961 section 41 relate to?
This is the use of force to prevent suicide. This must be reasonable proportionate and necessary.
What is required in relation to use of force in the Crimes Act 1961 section 42?
A witness who saw it must be present.
What does section 42 of the Crimes Act 1961 state?
- Justification to those witnessing a breach of the peace to interfere.
- Using force if necessary to prevent the disturbance from re-starting
- who is every person
Reasonable necessary and proportionate
They must have witnessed it.
What is the difference between a subjective test in relation to section 48 of the Crimes Act 1961?
Objective = Another reasonable persons view in the same position
Subjective = Your own assessment of the situation
What does the Crimes act 1961 state in terms of section 48?
Justification for use of force in self defense and defense of another
Who = every person
Key words are = Reasonable, proportionate and necessary
Name all the use of force acts and what they do?
s39=Arrest, warrant or process s40=Escape or rescue s41=Suicide s42=Breach of the peace s48=Self defense and defense of another s62=When use of force is excessive PA2008s33=Identification PA2008s32=Fingerprints and photos
How does the Bill of rights fit in with questioning and the powers to arrest?
Note 2 state that whenever a member of the Police has sufficient evidence to charge a person in custody. The person must be cautioned. This relates to section 23 of the N.Z. Bill of Rights 1990 that the suspect must be cautioned and given a reason why. This ties in with section 316 of the Crimes act 1961 which is the persons duties when arresting.
When is arrest complete?
- You are under arrest for ………
- Do you understand and they afirm
- Physical touching of the person
When must the bill of rights be spoken to the offender?
- arrest
- detain
- statement
- charged
- confession of another offence interview
what does section 21 of the NZ Bill of Rights state?
“Everyone has the right to be secure against unreasonable search, seizure, whether of the person, property or correspondence or otherwise.
What does section 24 of the NZ Bill of Rights state?
“Every person charged with an offence shall be informed promptly and in detail of the nature and cause of the charge
Shall have the right to consult a lawyer without delay and in private as soon as impracticable”
What does section 23 of the New Zealand Bill of Rights relate to?
“Everyone who is arrested or who is detained under any enactment shall be:
- informed of the reason why
- Have the right to consult with a lawyer
- Have the right to refrain from making a statement”
What does section 22 of the New Zealand Bill of Rights state?
“Everyone has the right not to be arbitrarily arrest or detained”
What are the two thing that you need to check before arresting with a warrant?
a-Identity
b-The warrant is valid
What must be cleared after a successful arrest for warrant?
Indicate on the warrant itself that it has been executed and then return it to the court.
What does the summary offences act 1981 section 39(2) say regarding powers to arrest?
Within his/her view
Does an act which the constable beleives is an offence against sections 17-20, 25, 32-38 and fails to give name & address or false details
What does the crimes act 1961 section 315(2)(b) say about the powers of arrest?
Good cause to suspect
Having committed a breach of the peace
Or
Any offence punishable by imprisionment
What does the summary offences act 1981 section 39(1) say regarding the powers to arrest?
Good cause to suspect
Having committed an offence against the act
except 17-20, 25, 32-38
What does the crimes act 961 section 315(2)(a) say about the powers of arrest?
Any person she/he finds
Disturbing the public peace
OR
Committing an offence punishable by imprisionment
What is the crimes act 1961 section 62 verbatim?
“Everyone authorised by law to use force is criminally responsible for any excess. According to the nature and quality of the act that constitutes the excess”.
What does the crimes act 1961 section 316 state?
Any person who is arrested must be informed of the reasons why.
Unless it is obvious or it is impractical to do so
What legal protection do I have as a member of the Police regarding arrest?
As long as I have acted in good faith. I am protected from civil or criminal action.
What does the Crimes Act 1961 section 315(2)(a) state about the powers to arrest?
Any person he finds
Disturbing the public peace
OR
Committing an offence punishable by imprisonment
What doe ssection 24 of the New Zealand Bill of Rights states?
Relates to the charging of an offense
-every person charged with an offence shall be informed promptly and in detail the nature and cause of the charge
What is the mnemonic for practice notes?
A-ask C-caution C-cross examination E-explain R-record
What does practice note 3 relate to?
Questions of a person in custody or in respect of whom there is sufficient evidence to file a charging document
Questions should not amount to CROSS EXAMINATION
What does section 23 of the New Zealand Bill of Rights State?
Must be informed at the time of the arrest or detention WHY + CR
What does section 21 of the New Zealand Bill of Rights state?
Everyone has the right to be secure against unreasonable search and seizure whether of the person, property, correspondence or otherwise
What does section 22 of the 1990 New Zealand Bill of Rights state?
Everyone has the right not to be arbitrarily detained
You are free to leave at anytime
You do not have to remain to answer questions
What does practice 1 state?
A police member may ask any person a question of whom they thought useful information may come.
But may not suggest that it is compulsory to answer.
What dopes practice note 4 state?
Whenever a person is questioned about statements made by others or about the evidence or substance of the statements must be fairly explained.
What are the consequences for breaching the practice notes on police questioning?
1-Evidence maybe inadmissible
2-The case maybe dismissed
3. Your creditably
4. My behavior could result in adverse publicity, formal complaints, criticism, police inquiry or possible charges.
What is the difference between admission and confession?
Admission - anything the offender says
Confession - a signed statement/DVD that the offender has done something
What does practice note 5 state?
Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge
1-Video
2-Changes must be initiated by the person
3-I must sign each page and endorse the statement.
What does practice note 2 state?
Whenever a member of police has sufficient evidence to charge a person in custody. The person must be cautioned.
Before inviting a statement
What are the powers of the New Zealand Police?
Search Detain-interview Arrest Seize Detain-mental/EBA
What is the definition of a breach of the peace?
an offence
- a person
- a person’s property in the presences of that person
- that they fear they will be harmed
Explain the hierarchy of evidence?
100%-Beyond reasonable doubt
60%-Reasonable grounds to believe
30%-Reasonable grounds to suspect
30%-Good cause to suspect
Explain all the Bill of Rights sections?
21-Unreasonable search
22-Arbitrarily arrest detained
23-Why - Caution rights
24-Everyone charged with offence informed nature and cause + caution rights
