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Police powers to arrest and detain

 

What are police powers?

Police have powers that enable them to keep the peace, prevent crime and protect property from criminal damage. These powers are greater than the powers of an ordinary citizen and include the power to arrest and detain people, obtain information, carry out searches, seize things and obtain identifying information such as DNA.  It is important to understand what your legal rights and obligations are in these circumstances.

This page deals with police powers to arrest and detain people in Western Australia. There are other Legal Aid WA web pages that deal with the power to search, ask questions and obtain identifying information, such as DNA. These are referred to under the heading Where can I get more information? at the end of this page.

If you need information about the exercise of any powers of arrest or detention that are not referred to here, or you want to know whether police have exercised their powers appropriately in a particular situation, you should get legal advice.

When can police make an arrest?

An arrest may be made with or without a warrant. Most arrests by police are made without a warrant.

Arrest without a warrant

Arrestable offence

Police have the same basic power of arrest as an ordinary citizen, in that they can arrest you without a warrant if they reasonably suspect that you have committed or are committing an “arrestable offence”. An arrestable offence is one that has a penalty that is or includes imprisonment. 

Under these basic powers, they can also arrest you without a warrant to prevent violence, a breach of the peace or the commission of an offence, where they reasonably suspect one of these things will happen.

Serious offence

In addition to these basic powers, police have powers of arrest that are not available to ordinary citizens. These powers mean that police can arrest you without a warrant if they reasonably suspect that you have committed, are committing or are just about to commit a “serious offence”. A serious offence is an offence of breaching a Violence Restraining Order, or an offence that has a penalty of 5 years imprisonment or more, or life imprisonment.  Alternatively, police may arrest you without a warrant even if the offence is not a serious offence, as long as they can show that if they don’t arrest you, one of the following things will happen:

  • they won’t be able to find out who you are
  • you will continue to commit the offence
  • you will commit another offence
  • you will be a danger to another person or their property
  • you will interfere with witnesses or the course of justice
  • you will conceal or disturb something related to the offence
  • your safety will be endangered.

An arrest may be lawful even if it is later found that you did not commit an offence, as long as at the time, the officer who arrested you had a reasonable suspicion that you had committed, were committing, or were about to commit an offence.

Arrest with a warrant

An arrest warrant is a written authority from a justice of the peace, magistrate or judge for police to arrest a particular person. An arrest warrant can be issued against a person for a number of reasons including:

  • for a criminal offence
  • for failure to appear in court
  • to ensure they attend court as a witness.

An arrest warrant must specify the person to be arrested and cannot be used as authority to arrest any other person. If police are executing an arrest warrant against you, you should check that it refers to you and that it is signed by the justice of the peace, magistrate or judge who authorised it.

What should the police do if they want to arrest me?

If the police have decided to arrest you, they should:

  • tell you that you are under arrest, or
  • place their hands on you and tell you that you are under arrest, or
  • physically seize you.

Police should use only as much force as is reasonably necessary to arrest you. They should be as discrete as they can be in the circumstances and not humiliate you more than is necessary to carry out the arrest.

What should I do if I am being arrested?

If you are being arrested you should keep calm and be polite.

If you resist or struggle with police when they are arresting you, you can be charged with an offence of obstructing or resisting police.  

What should I do if someone I know is being arrested?

If you are present when someone you know is being arrested, you should keep calm and be polite.

If you interfere with the arrest or try to stop the police from making the arrest, you could be charged with an offence of obstructing police.

What force can police use to arrest me?

Police may use reasonable force to arrest you. If you think police have used unreasonable force when arresting you, as soon as possible you should:

  • write down as much as you can about what happened, including the name, rank and badge number of the police officers who arrested you.
  • ask a doctor to examine and document any injuries you suffered. If possible have photographs taken of your injuries and record the date the photographs were taken
  • if there is someone who saw you before and after the arrest and can confirm that there was no injury before the arrest, then note this person’s name and ask them to write down what they saw before and after the arrest
  • record the name of any person who witnessed the arrest and ask them to write down what they observed
  • get legal advice about your situation.

If police have used unreasonable force, you can make a complaint about their conduct. You may also be able to take legal action against them. If you have been charged with an offence and you are facing court, you should get legal advice before making a complaint or taking legal action.

For more information see Complaints about the police.

What must the police do once they have arrested me?

As soon as possible after you are arrested, the officer in charge of the investigation must tell you what your rights are. Your rights are different depending on whether you have been arrested as a suspect or not.

In every case when you are arrested by police you have the right to:

  • any necessary medical treatment
  • a reasonable amount of privacy from the mass media
  • a reasonable chance to communicate with or try to communicate with a relative or friend to tell them where you are, and
  • assistance from an interpreter or other qualified person if you are unable to understand or communicate well enough in spoken English.

If you are arrested as a suspect, you have the right to:

  • be told what offence you have been arrested for and any other offences police suspect you have committed
  • be given a reasonable chance to communicate with or try to communicate with a lawyer
  • if an interpreter is needed, wait for the interpreter to be available before police interview you, and
  • be cautioned before you are interviewed as a suspect.

The police can refuse to let you contact a person if they reasonably suspect the contact will mean an accomplice will get away from police, evidence will be destroyed or hidden or someone will be put in danger.

In addition, it is police policy that your safety and welfare should be checked regularly once you have been arrested and that you should be treated in a dignified and humane way.

What if police do not do these things?

If police do not tell you what offence you have been arrested for, or do not give you medical treatment, or do not allow any of the things that are listed as requirements above, you can request that they do give you the information or allow the thing to happen.

If they refuse, you should ask to speak to the officer in charge of the investigation or the officer in charge at the police station where you are being held and make the request again.

If police continue to refuse, you should ask that a note of the refusal be made in your custody record and you should ask for a copy of this note. You should also make your own note of the refusal as soon as possible. Later, you will have the option of making a complaint to the Ombudsman in relation to the conduct of the police. For more information see Complaints about the police.

What are the reasons police can keep me in custody after arresting me?

Police can keep you in custody after arresting you in order to:

  • search you, your property and your premises
  • investigate any offence they suspect you have committed
  • interview you, or
  • decide whether or not to charge you.

If possible, you should be kept in custody in the company of a police officer, rather than in a police cell.

How long can police keep me in custody before charging me?

If you are in custody because police suspect you have committed an offence, police may keep you in custody for a reasonable time to investigate the offence, question you about it, carry out searches and decide whether to charge you. In deciding what is a reasonable time, a number of things may be considered, including things such as:

  • the time required to transport you to a place where you can be interviewed properly
  • the need for you to receive medical treatment
  • the need to let you recover from the effects of alcohol or drugs
  • the number of offences and how complicated they are
  • the need for police with special knowledge to travel to attend the investigation, and
  • the need to interview witnesses or other suspects.

Apart from this reasonable time limit, police must also ensure that they do not keep you in custody for more than six hours, unless they get the approval of a senior officer. If they get approval, they are then allowed to keep you in custody for no more than another six hours, making a total of twelve hours. After twelve hours, police may only continue to keep you in custody if they get approval from a magistrate.

Commonwealth offences

Police in WA also have the power to arrest and detain you in relation to Commonwealth offences, such as offences under the Crimes Act 1914 (Cth), Customs Act 1901 (Cth) or Quarantine Act 1908 (Cth). The powers police have in relation to Commonwealth offences are very similar to State offences, but there are a few differences in relation to how long you can be kept in custody. 

For Commonwealth offences, police can only keep you in custody for a “reasonable time” but this is otherwise limited to:

  • two hours if you are under 18 years old or you are an Aboriginal or Torres Straight Islander, or
  • four hours otherwise.

Police may apply to a magistrate or justice of the peace to extend this to a maximum period of 8 hours and they can only apply for an extension once.

When must police release me from custody?

Police must immediately release you if they decide not to charge you or if they have not received approval to keep you in custody for more than the time allowed. 

If you are charged with an offence, you may or may not be released, depending on the seriousness of the offence and whether police consider bail is appropriate.

What if I am kept in custody when I should not be?

If you are kept in custody without a proper reason or for longer than is allowed, you should ask to be released. If police do not release you when they should, you may have a civil action against them for false imprisonment. If you think you have been taken into or kept in custody when you should not have been, you should seek legal advice.

What if I am charged but not released?

If you are charged but not released on bail to attend court, you will be taken to court in police custody. You will then have a chance to apply for bail in court.

If you do not have a lawyer and you want legal assistance to make a bail application, you may tell the custody staff at court that you wish to see a Legal Aid duty lawyer. The duty lawyer will visit you in custody to advise you and can then represent you in court. If there is no duty lawyer at the court on that day you can ask the court to put your bail application off to another day when a lawyer is available.

You can choose to make the application for bail yourself, without advice or representation from a lawyer, but you should be aware that if bail is refused, you may not be given another chance to apply for bail. For this reason it is best to get legal advice before you apply for bail.

For more information about appearing in court see Appearing in court on a criminal charge and Duty Lawyer Service.

Can police take my fingerprints and photograph?

If you are under arrest for an offence, police have the power to take your fingerprints and photograph. For more information see DNA samples and identifying information.

What powers do police have in road traffic matters?

Police have special powers under the Road Traffic Act 1974 (WA). Some of these powers are outlined here.

Providing a preliminary breath test

If police reasonably suspect that you are the driver of a vehicle, they can require you to stop your vehicle and provide a sample of your breath to see if you have been drink driving. To enable this to happen, they can ask you to wait and if necessary, to get out of your vehicle. 

If you refuse to or cannot provide a sample of your breath, you can be required to accompany police to a police station or other suitable place to provide a sample for analysis. 

Accompanying police for a breath, blood or urine test

If your preliminary breath test shows a reading above the limit allowed for you, or you cannot or will not provide a preliminary sample of breath, police can require you to accompany them to a police station or other suitable place to obtain a sample of your breath, blood or urine for analysis. During this time, you are in the custody of police and you are not free to leave until the procedure is completed and you are released from custody.

It is an offence to refuse to provide a sample for analysis.

Dealing with intoxicated people

In addition to the power to arrest, police and appointed community officers have the power under the Protective Custody Act 2000 (WA) to stop and detain you if you are in a public place or trespassing on private property and you:

  • are intoxicated (affected by alcohol, drugs or another intoxicant, to the extent that your judgement is significantly impaired), and
  • need to be apprehended to keep you or any other person safe, or to prevent you from causing serious damage to property.

A railway security officer may exercise these same powers, but only on railway property, not elsewhere.

While being detained under the Protective Custody Act 2000 (WA), police cannot question you about any offence you are suspected of committing, they cannot do any forensic procedure on you, such as taking a photo, fingerprints or DNA sample and they cannot charge you with an offence. Any information they obtain from you while you are being detained cannot be used against you. If police wish to get information from you or charge you, they must do it at another time, after you have been released.

Move on orders

In addition to the power to arrest, police also have the power to order you to leave a particular public place or public transport for up to 24 hours. This is called a “move on order”. A police officer may issue a move on order if they reasonably suspect that you:

  • are doing, or are about to do, something violent
  • are committing a breach of the peace
  • are preventing or hindering a lawful activity by another person
  • have committed, are committing or will commit an offence.

When issuing a move on order, police must consider the impact of the order on you, including whether it affects your ability to get to the place where you live, work or shop, or your ability to access transport, health, education or other essential services. A move on order must be in writing.

It is an offence to fail to comply with a move on order, unless you have a reasonable excuse for not complying. The maximum penalty is a fine of $12,000 and imprisonment for 12 months.

If you are charged with this offence you should seek legal advice. You can obtain advice from a Legal Aid WA duty lawyer at court. For further information see Duty Lawyer Service.

Accompanying police when not under arrest

Police may request that you accompany them to assist in the investigation of an offence. In this situation they must inform you that you are not under arrest, that you do not have to accompany them and that if you do accompany them, you are free to leave at any time.

Can I complain about the conduct of police?

Yes, if you feel that the police have not behaved properly towards you or have abused their powers, you can make a complaint about them.

If you have been charged with an offence and you are facing court, you should get legal advice before making a complaint.

For more information on how to make a complaint, see Complaints about the police.

Where can I get more information?

See the following web pages under Information about the law on the Legal Aid WA website:

See the following information sheets and pamphlets, available from any Legal Aid WA office or by contacting the Legal Aid WA InfoLine on 1300 650 579:

  • Police powers of arrest and detention
  • Answering questions from police
  • Police powers to search
  • DNA testing by police
  • Complaints about the police

Contact the Legal Aid WA InfoLine on 1300 650 579 for information and referral.

 

Last reviewed: 12/06/2013

Last Modified: 17/09/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.