The police must have lawful authority to arrest you.

If they do not have lawful authority, the arrest is unlawful. The lawfulness of an arrest can be a very significant factor in any case involving criminal charges.

If an arrest is unlawful, it can impact any evidence seized after the arrest occurred. It can also impact on the admissibility of any admissions you are alleged to have made to police after being arrested. It may also be a critical factor in a case involving an assault against a police officer who was purporting to arrest you.

There have been numerous instances of unlawful arrests in Western Australia, particularly when it comes to the use of tasers. Given this history of unlawful arrests and use of excessive force, there is a chance you may have been unlawfully arrested in your case.

There are numerous laws which give the police the power to arrest you. This article summarizes the main powers of arrest given to police in Western Australia.

Arrest powers under the Criminal Investigation Act

Both police and citizens are given powers to arrest others under the Criminal Investigation Act. This act is the main source of most of the powers of arrest given to police in Western Australia. Police may arrest you if:

• They reasonably suspect you have committed, are committing, or are just about to commit, a ‘serious offence’. This is an offence carrying a maximum penalty of at least 5 years’ imprisonment, such as breaching a data access order or assault occasioning bodily harm;
• They reasonably suspect you have committed or are about to commit an arrestable offence (any offence carrying imprisonment) – this power is given to any citizen; or
• They reasonably suspect you have committed, are committing, or are just about to commit any other offence, and if certain other criteria apply, such as that you will repeat the offence if not arrested or you need to be arrested to verify your personal details.

Power to detain under the Criminal Investigation (Identifying People) Act

This Act is commonly used by police to request the personal details of any person. This means their name, date of birth and address. Police may request these details from you if they suspect you have committed or are about to commit an offence; or they suspect you may be able to assist in the investigation of an offence or suspected offence.

However, not only can police request your personal details, but they may detain you for a ‘reasonable period’ to enable you to comply with the request, or to verify the correctness of any detail you have provided.

A refusal to provide your details when lawfully requested to do so is an offence carrying 12 months imprisonment, so police can also arrest you for the offence itself as well.

Arrest power under the Protective Custody Act

This Act gives police the broad power to arrest any person in a public place who appears to be intoxicated, and needs to be apprehended for their own safety or to protect any person or property. They may then be detained until they are no longer intoxicated.

Intoxicated means ‘affected by, or apparently by, an intoxicant to such an extent that there is a significant impairment of judgment or behaviour’. Plainly, this asks for a judgment call from arresting police and it might be arguable in a given case that someone was clearly not sufficiently intoxicated to be apprehended, yet they were anyway.

Arrest power under the Mental Health Act

Under this Act, police can arrest a person who they reasonably suspect has a mental illness, and needs to be apprehended for their own safety or to protect any person or property. A person arrested under this act must, as soon as practicable, be taken before a medical practitioner for assessment and treatment.

Both this Act, and the Protective Custody Act, give very broad arrest powers to police which can be argued by police to apply in many and varied situations.

Conclusion

Police have broad and extensive powers to arrest a citizen in a given case. However, they are not given the power to arrest any person at any time for any reason. In every criminal case, it is important to critically analyze the lawfulness of an arrest. Successfully demonstrating that an arrest was unlawful can have significant implications for your defence, and may mean the difference between successfully defending a matter or not. Those implications will be expanded on in our next article.

If you require expert advice concerning the lawfulness of the arrest in your case, don’t hesitate to contact James Jackson Criminal defence today.