Flashcards in Prosecutions and Police Service to Victims Deck (20):
What is arrest?
Arrest is lawfully taking a person suspected of committing an offence into custody or temporarily taking their liberty away.
What are some of the reason you would arrest someone suspected of committing an offence?
- To safeguard the publics interest
- Ensure the person appears in court
- Protecting the persons own interest
When you arrest a person you must make it clear to that person that they are the person who is being arrested and make sure they understand. how can you do this?
Tell them that they have been arrested for (Offence) and advise them of their rights/caution and ether:
- Formally touch the person on the shoulder, or
- Have the person's agreement to the arrest (e.g. they nod or walk towards the police car) or their submission to the arrest as a result of using force.
In some instances you will detain someone who is not being arrested. In these instances what should you do?
Explain to the person that they are detained and they are not free to go, give them their rights/caution.
What is arbitrary detention?
Arbitrary detention is when you arrest or detain someone and:
- You do not have a legislative power to arrest or detain that person.
- The arrest or detention is unreasonable or unnecessary in the particular case, or while the initial detention was appropriate, the detention continues for an unnecessarily long time.
When you have no power to detain someone you wish to question what should you do?
- If you have legislative power to, arrest them.
- Give them clear advice that they do not have to stay and answer any questions before questioning them.
If you hold anyone for questioning when you don't have any power to do so this is arbitrary detention.
What could happen if you arbitrarily detain someone?
- Statements made by the person may be inadmissible in court
- The case against the person could be dismissed
- The arresting or detaining officer may be liable to civil litigation resulting in punitive damages
The power to arrest from the crimes act 1961 allows you to arrest someone when?
- You find someone disturbing the peace or committing an offence punishable by imprisonment
- You have good cause to suspect the person has committed a breach of the peace or an offence punishable by imprisonment.
What are some way you can gain good cause to suspect an offence has occurred?
- Your own observations
- Statements from witnesses
- Admissions from the offender
- Examining the crime scene
- Forensic evidence
When dealing with an offender and you have identified they can be arrested, under what circumstances should you not arrest them?
- When they can be brought before the court by way of summons. If the offence is not imprisonable and there are no aggravating factors then a summons is more likely the better way of starting prosecution
- When a warning, caution, counselling or referral to another agency is the best solution for the situation.
When you decide to summon someone instead of arrest what else should you consider doing?
Obtain the person's identifying particulars, obtain their fingerprints and photographs as per the Policing act 2008.
If you have a power of arrest for an offender you have other associated powers. What are they?
- Use reasonable for making the arrest
- Enter a premises to carry out the arrest
- Stop and search vehicles in limited situations
- Exercise warrantless search powers after arrest
- Search and seize items being carried or in the person's possession or control
Failure to advise an arrested or detained person of their rights using the correct caution could cause what to happen?
- A finding that the evidence obtained was improperly obtained and exclusion of the evidence
- The case against the person being dismissed
When you arrest or detain a person what is your responsibility with regards to that persons welfare?
You are responsible for keeping them safe. You must protect them from self-harm and/or suicide or harm from others e.g. other people in police custody.
When you have arrested or detained someone when does their safety stop being your responsibility?
Until you have handed the custody of that person over to the custody officer, person in charge of the station, or any other employees taking over responsibility for the person's custody.
What are your options for dealing with someone once you have arrested them and they are in police custody?
- Charge and hold them in for the next available court date
- If bailable, you can charge and bail the person to a future court date, you have to have permission from the officer in charge of custody to do this.
- Pre-charge warn the person if the relevant criteria is met.
There are some situations where you must immediately release a person from custody. What are these reasons?
- You discover there was no power of arrest
- There is no longer reason to believe the person committed the offence
- You believe the detention is no longer justified for whatever reason
- The person arrested on a charge that does not proceed
- The person is found not to be the person named in the arrest warrant
If an offence has been committed, and a warning is not appropriate, you must consider whether to commence prosecution. There are two steps required by the Solicitor-General's Prosecution Guidelines to make this decision, what are they?
1 - The evidential test
2 - Th public interest test
What are five factors to consider when determining the public interest?
- Seriousness of the offence
- Likely penalty on conviction
- The circumstances of the defendant
- The likelihood of the offence being continued or repeated
- The circumstances of the victim