In previous articles, we have referred to the police powers of arrest, and to a person’s rights when they have been arrested. A further question which commonly arises is how much force can the police use to arrest a person? Is there any limit?
In Western Australia, the principal power of arrest for police officers arises under the Criminal Investigation Act. That Act gives the police the power to ‘use any force against any person or thing that it is reasonably necessary to use in the circumstances —
(a) to exercise the power of arrest; and
(b) to overcome any resistance to exercising the power (of arrest) that is offered, or that the person exercising the power reasonably suspects will be offered, by any person’.
The use of force may be such as causes damage to the property of another person.
Any force used in an arrest is subject to The Criminal Code Chapter XXVI. This chapter deals with the provisions relating to defences to assaults including self-defence and provocation, amongst others. This means that that those defences can apply to the force used by police in an arrest situation.
What this all means is that police can use any force that is reasonably necessary to either arrest a person, or to overcome any resistance to the arrest that the person offers. This is an objective test. It means police can’t just do whatever they like during an arrest, such as badly assault a person for no reason. The use of force must be reasonable and it must be connected to the need to either arrest the person or overcome their resistance to being arrested.
There are various other powers to arrest people in Western Australia that provide similar powers of arrest.
The effect of a police officer using excessive force is that the use of force is no longer lawful. This means two things:
- the officer can be subject to criminal charges for the excessive force used, which could include charges such as common assault, grievous bodily harm or worse depending upon the injury sustained; &
- the person who suffers the excessive force but defends themselves may have a full defence to any charge that the police bring against the person, such as assault public officer.
Police officers are also subject to section 609 of the Police Force Regulations. That law provides that a police officer must not:
(a) make any unlawful arrest; or
(b) use any unnecessary force on any prisoner or other person with whom the member may be brought into contact in the performance of his or her duty.
So any officer who makes an unlawful arrest or uses excessive force can be subject to disciplinary action within the police. They can also be subject to criminal charges as outlined.
In Western Australia there have been various cases of excessive force being used in arrests, such as an incident of choking by a police officer or another incident of ‘bundling’ a person into the back of a police van without justification. It is important to critically analyze the force used in a given case as it may well have been excessive and unlawful.
The lawfulness of the force used in an arrest may have significant implications in a criminal case. It may mean that a charge cannot be proved, or that there is a full defence to a charge. If your case involves a forceful arrest, don’t hesitate to contact James Jackson Criminal Defence for expert advice today.