What is an Arrest?

What is an Arrest?

An arrest is to seize someone and take them into custody, usually in response to the committing of a crime.

There are three important elements of a lawful arrest in New South Wales:

  1. You must be informed that you are being arrested;
  2. You must be told why, if it is not already obvious;
  3. You must be informed, either by words or conduct that you are not free to go.

The police must as soon as reasonably practical, provide you with their name and place of duty, and evidence that they are a police officer if they are not wearing a uniform.

Arrest without a warrant

The Law Enforcement (Powers and Responsibilities) Act provides police power to arrest without a warrant if they suspect, on reasonable grounds that you are committing an offence, or have committed an offence; and that officer is satisfied that an arrest is reasonably necessary. It is important that these two elements exist together.

An arrest will be considered reasonably necessary if:

  1. it stops you committing or repeating another offence;
  2. it prevents you from fleeing the location;
  3. enables police to establish your identity;
  4. ensure you appear before a court;
  5. obtain property that is connected to an offence which is in your possession;
  6. it preserves evidence or prevent the fabrication of evidence;
  7. it prevents harassment or intimidation of witnesses;
  8. it protects the safe of or welfare of any person, including yourself;
  9. the nature of the offence is serious. 

An arrest under s 99 must be made for the purpose of commencing proceedings.

You cannot be arrested for some other purpose, like questioning.

This common law principle has not been displaced by LEPRA, said the court High Court in Williams v R.

An example of this principle in practice:

In 2014, William Bennett appealed against conviction for assaulting police following an unlawful arrest. The arresting officer gave evidence that he suspected Bennett had committed an offence, though had only stopped him “for a chat” and had not intended to commence proceedings at that time. It was accepted that an arrest for this purpose is unlawful. You must not be arrested for questioning, or for investigations to take place. Therefore, the court held that evidence of the assault against police must be excluded. 

If you have been arrested under s 99, you must also be taken before an authorised officer as soon as reasonably practical. An authorised officer is a Magistrate or Registrar. This further reflects the common law’s position that an arrest is for the purpose of commencing proceedings, for a person to be dealt with according to law.


Arrest with a warrant

Under s 101 of LEPRA, Police may arrest or deal with a person if they act in accordance with a warrant issued under any act or law. They may do this whether or not they have the warrant in his or her possession.

A warrant is an order made my a judicial officer, either a Magistrate or a Judge or in some cases a registrar or authorised officer. It provides police power to arrest a person for the purpose of bringing them before the court for a number of circumstances such as:

  1. failure to appear before the court;
  2. breach of bond or other sentencing matters;
  3. pre-court arrest, where police cannot locate you to charge you with an offence;
  4. witness in proceedings, where you have failed to comply with a subpoena.

Once a warrant has been issued for your arrest this will display on all police and court databases.  In some cases, police may receive a system notification that there is a warrant issued for your arrest during routine traffic stops.

Police may discontinue an arrest at any time, if you are no longer a suspect or the reason for arrest no longer exists. They may also discontinue an arrest if it is more appropriate to deal with the matter in some other manner, such as a warning, penalty notice or court attendance notice.


Arrest as a last resort

The power to arrest is discretionary. Police may or may not, exercise this power. This is because the law recognises that applying the letter of the law to the practical and real life situations requires a certain level of discretion, and the ability to use their own judgment.

The law also holds that where there is a power to exercise discretion it must, at least be considered.

This means that it is not enough for an officer to suspect you have committed an offence; there must also be an ‘effectual exercise’ of their discretion to arrest you: Zaravinos v NSW [2004] NSW CA 320.

There is extensive case law which supports arrest as a last resort. This is because arrest is a deprivation of liberty, which is a fundamental human right. An arrest will not be appropriate for minor offences, or where a summons would suffice.

In DPP v Carr, a man was arrested for a minor summary offence of offensive language. The arrest was held to be improper because police knew his name and address, and there was no indication that a summons would not be effective in bringing the accused to court.


Arrest for breach of bail

Under s 77 of the Bail Act, police may arrest you without warrant if the reasonably suspect you have, or will fail to comply with a bail condition. In these circumstances, failure to consider another alternative to arrest will not always render the arrest improper. Particularly in circumstances where an offender flees the scene and there is not sufficient time for police to consider every other option.


Use of force

Police are empowered to use any reasonable and necessary force required to make an arrest or to prevent a person from escaping. However, they may not do anything that is likely to cause death or grievous bodily harm to a person unless they believe it is necessary to protect life or prevent serious injury to another.

As it stands, there is no authority that supports that the use of excessive force will make an arrest unlawful. However, the law holds that the force used must be proportionate to the offence.