Tuesday, March 24, 2015

Police powers & your rights

This section covers in detail the powers that police have to arrest, charge, or question you before and during an arrest.

The formal power of police is less than is popularly imagined, and can be challenged. Much police power depends on bluff and bullying. When police insist on your "cooperation" they really mean that they want your obedience.

Police have a sworn duty to stop or prevent a "breach of the peace", which means that they may intervene, for instance, to stop damage to property or to stop a fight.

It is rare for police to exercise this power in anticipation of a breach of the peace.

The power to prevent breaches of the peace does not necessarily entitle police to take you away somewhere, or take your property (such as a banner) unless this is absolutely necessary to stop or prevent a breach of the peace.

While recent amendments to the Summary Offences Act have broadened police powers to move people on, those powers are inapplicable in certain circumstances - mostly in relation to freedom of speech and assembly. Move on powers do not apply to people who, whether alone or with others are:
  • Picketing a place of employment
  • Demonstrating or protesting about a particular issue
  • Speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue
Note, however, that the recent amendments also introduced a broad offence for “disorderly conduct”. A person can be arrested for disorderly conduct.

For a short guide on your basic rights when arrested go to Activist legal rights - a short guide in the Support team resources section.

Police use of force


The police are only entitled to use “reasonable force” and may only use force when it is lawfully justified. The police use of force may be unlawful if it is found to be ”excessive”.
Section 462A of the Crimes Act1958 (Vic) provides as follows:
“462A. A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.”
This section is relevant to all members of the public (including Victoria Police members).
Sections 459 and 459A of the Crimes Act1958 (Vic) also confer special powers of arrest, entry and search upon members of the Victoria Police which are more extensive than the powers of ordinary members of the public and, in particular, the powers of arrest conferred upon members of the public by section 458 of that Act.

Police use of force is often justified under the common law principle that police have a duty to prevent a breach or a threatened ”breach of the peace”.

Ultimately, what constitutes “reasonable force” is decided by the courts when police action is challenged.

Also see Complaints against the police

Policing standards

The United Nations Code of Conduct for Law Enforcement Officials states that "law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons" (Article 2) and they "may use force only when strictly necessary and to the extent required for the performance of their duty".


The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials also include the following:

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply nonviolent means before resorting to the use of force and firearms. 

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a)Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; 

7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

Police approach

At private premises

The police usually need a search warrant to enter and search private property, unless:
  • You agree to the police entering
  • The police have a reasonable belief that a serious offence will be or has been committed and entry is necessary to make an arrest
  • Entry is necessary to stop a breach of the peace
  • There has been a breach of an intervention order
  • The police are chasing someone who has escaped from custody
  • The police have a warrant for arrest
  • The police have a reasonable belief that illegal drugs are on the premises
See also What if ASIO visit 

To get a search warrant, police must apply to a magistrate and provide sworn evidence, either in person or by affidavit. Once they have a warrant, police are only authorised to search a particular premises for specified items. There will also be an expiry date on the warrant. The police must serve an adult occupier of the house with a copy of the warrant.

Police cannot legally, for example, come to your house with a warrant for stolen electrical goods, and then attempt to take your address book. However if they come across evidence of an offence (for instance a marijuana plant) while searching they are entitled to take that and arrest you.

Name & address

Under section 456AA of the Crimes Act1958 (Vic) the police can ask for your name and address if they believe that you:
  • Have broken the law
  • Are about the break the law
  • Are able to assist them with information about an indictable offence
If the police demand your name and address they MUST give you reasons for doing so. You should ask for these reasons.
The police must also tell you their name, identification number, police station and rank. You should always ask for this information and ask that it be provided in writing.
The police may also demand your name and address without giving a reason if you:
  • Are driving a car, motor bike, boat or push bike
  • Are on public transport or public transport property (public transport officers can also ask for your name and address)
  • Are in a hotel or licensed premises
It is an offence with a maximum penalty of a fine of $500 to refuse to give your name and address or to give false details to police, public transport officers and authorised National Parks officers.

If you give a false name and address when arrested and taken into custody, it may increase the time you are held for questioning and verification of your identification, and also affect whether you are granted bail.

Being searched

Generally, the police can only search you if you agree or if they have a warrant.

The police can search you, your possessions and your car without consent or a warrant if you are in a public place and they believe you are carrying illegal drugs, volatile substances, weapons, graffiti implements, or firearms. Note that “weapons” can include any object which has been either modified to enable it to be used as a weapon or any object carried with the intent of being used as a weapon. If you are within a “designated area” the police do not need to have a reasonable suspicion that you are actually in possession of or intend to use a weapon in order to search you. If you are not within a designated area, however, there must exist a reasonable suspicion or evidence on which their decision to search you has been based. The police can include in their reasons to search you that you are in an area with a high rate of violent crime. Police can't legally stop and search you on a whim or because they don't like you - although this often occurs.

Police may conduct a ”pat-down search” of the outside of your clothes and ask you to empty your pockets.
If the police reasonably suspect you are carrying a weapon and you refuse to produce it, you could be charged and fined.

If you are in custody or under arrest you can be searched for things that could be used as evidence for the offence you have been arrested for. Police may conduct either a ”pat-down search” or a ”strip search” in a private place.

Police must not undertake an internal search without first obtaining a court order.

Searches are required to be conducted, so far as reasonably practicable, by police officers of the same sex as the person to be searched. In other words, women, including people who identify as women must be searched by female police officers. This does not always occur - the unfortunate reality is that male police often strip search female suspects as a form of harassment and intimidation.

The International Covenant on Civil and Political Rights (ICCPR Article 17) protects against arbitrary and unlawful interference with privacy. Many searches are arguably random (and therefore arbitrary), aimed at the general population rather than specific individuals suspected of criminal offences.

Where possible, refuse to be searched, but if police insist then closely monitor them. Try to have as many witnesses as possible to follow and observe each police officer (there will usually be several). Use cameras and tape recorders, if you have them.

Check every item police attempt to take away, and ensure your witnesses see that police don't plant or falsely "find" anything. Insist on a detailed receipt for anything that is taken - this can be cross-referenced with the report to the magistrate. Do not countersign this receipt if it is not accurate or not fully detailed.

If property is taken from you during an arrest or at a demonstration, have a lawyer write a letter to police immediately, demanding return of the property. Raise the matter before a magistrate, if you are charged. Put on record as soon as possible what was taken, where it was taken and by whom. This helps any legal follow-up that may be necessary.

Being arrested

The police can arrest you if they believe you have broken a law.

Police cannot arrest you "for questioning". You DO NOT have to accompany the police to the police station UNLESS you are under arrest or if you have been found drink-driving and police require you to accompany them to a police station for a breath test analysis.

However, it is an offence to actively resist or hinder a legal arrest (yours or another's). It is not necessarily an offence to refuse to co-operate, for instance by lying down. You don't have to help police arrest you, but they may then use "reasonable force" to take you into custody.

The Victorian Police Manual states that: “Passive resistance - means a nonviolent refusal to cooperate, including a refusal to comply with directions. This does not include the linking of arms nor the holding onto of structures.”(VPM Instruction 107-1 Crowd control 3/11/03)

It is also not an offence to run away before an arrest takes place; however, running away may be later represented in court as some evidence of your "consciousness of guilt".

If the police take you into custody (including placing you in a divisional van), you should ask “Am I under arrest?” and “What am I under arrest for?”. You should not participate in any further conversations with police (except to provide your name and address) until you have spoken to a lawyer.

You should immediately demand to speak to your lawyer. If you are participating in a demonstration, it is best to always carry the phone number of a couple of lawyers, or legal centres, with you. If police refuse you access to a lawyer just say you have no comment to make.

If you are a Koori you should tell the police immediately. The police must then notify the Victorian Aboriginal Legal Service and any local Aboriginal Justice Panel.

If you are not an Australian citizen, you should tell the police immediately. You must be allowed to contact your consulate.

Contacting witnesses to an arrest is vital - statements should be taken from them in case the police version of how the arrest took place is to be challenged. In particular, try to remember the identity of the arresting police officer. It sometimes happens in demonstration cases that different police turn up in court claiming to be the arresting officer. If such substitution is exposed, the police evidence will be disregarded.

Release without charge

In some cases, the police will arrest activists, transport them away from the scene of the protest (sometimes many miles away), get personal information, and then release them onto the street without charge. This might occur if the police are unsure if any crime was really committed and just wanted to clear the area.
Prosecutors may then be consulted to see what, if any, charges will be filed. The prosecutors can then take anywhere from a few days up to a year to decide to file summary charges against you, or even longer for some more serious (indictable) charges.

If this happens to you, give a good mailing address to the police. If police decide to charge you later, they may send a summons to the address you have given. The court where the charge has been filed will also send notice of your court date to the address you give the police. If the notice is mailed to a bad address, it will be returned and you won't get notice of the court date. If you don't attend court, the case could be heard in your absence or a warrant for your arrest may be issued.

Questioning

You have the right to remain silent. Anything you do say to the police can be used as evidence against you in court, or in the police decision whether or not to charge you.

You should refuse to answer any questions, apart from your name and address, until you have had an opportunity to speak to a lawyer.

If the police question you before you have received legal advice, you should answer “no comment” to all questions. Do NOT answer some questions and not others - this may be used in court as evidence that you had something to hide on the questions that you did not answer.

If you do not speak English - ask for an interpreter. The police should not conduct an interview without the aid of an interpreter.

You have the right to ask for a lawyer. You should do so immediately and continuously. You must be allowed to speak to a lawyer in a private space where you cannot be overheard. If the police are within hearing when you call your lawyer, make sure that the lawyer is aware that you are being overheard and do not go into details over the phone.

If the police question you formally without you having spoken to a lawyer, state clearly during questioning that you refuse to continue with the interview until you have received legal advice.

If you are not an Australian citizen you have the right to contact your embassy or consular office.
You must be allowed to telephone a friend or relative. The police may only deny you this right if they believe that as a result of your call:
  • Someone else involved in the crime might get away
  • Some evidence may be lost or tampered with
  • Other people may be in danger
Different rules about police questioning apply to driving matters involving alcohol or drugs.

You should not have any conversations at all with the police, no matter how innocent or irrelevant they seem, until you have spoken to a lawyer, your family and/or an independent third person (a person required to be at an interview where the interviewee suffers from an intellectual disability).

Do not be intimidated by the police questioner. The police may tell you that by saying “no comment” you are risking being charged with a more serious offence, or that you will not be released on bail. Do not believe these threats and do not tell the police anything until you have spoken to a lawyer.

The police must tape record the questioning (called the record of interview) if you are charged with a serious (indictable) offence. (Police are not required to tape record interviews where you are to be charged with a less serious (summary) offence.)

If you are charged with a serious (indictable) offence, the police must also tape record the following caution being given to you before you are questioned:
‘I must inform you that you are not obliged to say or do anything but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights: You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner.'
The police must also tape any questioning and your answers. If you are charged and your matter proceeds to court, this tape may be transcribed and presented as evidence.

The police must give you a copy of the tape. You should get this to your lawyer as soon as possible.
Note that for less serious offences, known as summary offences, the police do not have to conduct a taped record of interview. They may simply write down any questions and answers and this record may be used in court.

If you are under 18 years of age

The police MUST NOT formally question you unless your parents or guardian or an independent person is present during questioning.

Making a statement

At the conclusion of the record of interview, the police will ask you whether you wish to make a further statement. This will be in the form of a written statement. The police may ask you to sign and swear as to its accuracy.
  • Do not make a statement until you have received advice from your lawyer
  • Do not sign anything until you have read it carefully
  • Do not sign anything which is incorrect or which you do not agree with
If you do sign a statement, make sure that you get a copy of your statement.

Fingerprinting, photos

In all but a few minor offences, you must allow the police to take your fingerprints if they believe that you have committed an offence. Police can use "reasonable" force to take your fingerprints if you refuse.
Before taking your fingerprints the police must inform you:
  • Why your fingerprints are needed
  • The offence they believe you have committed or that you have been charged with
  • That the fingerprints may be used as evidence in court
If you are 15 or 16 years of age your parents, guardian or an independent person must be with you when the police ask to take, and take, your fingerprints.

If you are between 10 and 14 years of age, the police must get your consent and the consent of your parents and guardian before your fingerprints are taken. You do NOT have to consent.

The police cannot fingerprint a child under 10 years of age.

If you refuse to give your fingerprints, the police can use "reasonable" force to get them. If you are 15 or 16 years of age and force is used, it must be video or audio taped.

If you are not charged within 6 months or you are found not guilty at court, the police must destroy your fingerprints.

Photos

The police cannot force you to have your photo taken. It is your right to refuse any request from the police for a photo.

ID parade

The police may ask you to participate in a line up, where the witness is asked to identify the person who committed a crime. The police cannot force you to participate in an identification parade. If you participate in such a line up, you risk being mistakenly identified as the offender. You should refuse to participate in any identification parade or line-up until you have spoken to a lawyer.

Being held

If you are arrested, the police may only keep you in custody for a "reasonable time". What is reasonable depends upon the:
  • Number and complexity of the offences
  • Time needed for police to read and collate material
  • Number of other people to be questioned
  • Time needed to have the suspect communicate with a lawyer, interpreter, relative or friend
  • Time needed for medical attention
  • Time given to a person to rest during an interview
If you have been held in custody for some time and not charged, you should ask to phone a lawyer and ask whether the police intend to charge you.

Being released

Just because you have been arrested does not mean that you will necessarily be charged. You may be:
  • Released without charge
  • Released and charged at a later date
  • Charged and released on bail
  • Charged and brought before a bail justice
If you are being released, you will be asked to sign the Attendance Register Book at the police station where you were held. Signing the Attendance Register Book acknowledges that:
  • The police have not taken anything from you
  • You have been treated reasonably
  • You have received your police charge sheets
You do not have to sign the book if you do not want to.

Release on bail

Most people who have been arrested and charged with committing an offence must obtain bail before they can leave the police station. The main purpose of bail is to make sure that the person turns up at court to answer the charge against them.

The police have wide powers in relation to the granting of bail. In most cases, police will agree to grant bail at the police station. It is usually the case that bail is granted without any need for a surety (eg money), only an undertaking (ie a promise to appear). Very few bail matters end up going before the courts. This usually happens when the police do not agree to grant bail.

If the bail hearing does go to court, bail may be refused if the court or a bail justice is satisfied that there is an unacceptable risk that you will:
  • Fail to appear at the court hearing (eg. you have failed to appear at court on a previous occasion)
  • Commit an offence whilst on bail (eg. if you have been charged whilst already on bail)
  • Endanger the safety or welfare of members of the public; and/or
  • Interfere with witnesses
If you are applying for bail in the Magistrates' Court, the application must be well prepared. If the application is unsuccessful and you were represented by a lawyer, then another application for bail to the Magistrates' Court can only be made if there are new facts or circumstances to present to the court.

It is often better to spend a few days in custody while a solid bail application is prepared by the solicitor. This allows time for witnesses who can support the application to be contacted and organised. Although this advice is not popular with people being held in custody, it is generally sound advice and increases the chances of a person being granted bail in the face of opposition by the police.

If you want to apply for bail immediately, and the police oppose bail, you need to be aware of what the key issues in the police opposition to you being granted bail are. Then you should undertake your own bail application. If bail is refused, there is then nothing to stop you making a further application for bail with the assistance of a lawyer appearing on your behalf, where the main issues can be addressed after proper preparation by a solicitor acting for you.

For all charges in Victoria, with the exception of treason, murder and certain serious drug trafficking and violence offences using weapons, there is a presumption in favour of bail. That is, bail must be granted unless the police or prosecution makes a successful case against bail. The main issues that may be raised to oppose your normal right to bail include some reasons to suggest that you:
  • Will not appear in court
  • Will threaten witnesses; and/or
  • are about to commit further offences
With trafficking or cultivation of large quantities of illegal drugs, or with serious offences where firearms have been used, there is a presumption against bail, so an argument must be made out for bail (Bail Act 1977 (Vic ), section 4).

In most cases, however, you do have a right to bail and will be given bail, either by the police or a magistrate. With all minor offences (and many major offences) you should be granted bail. This right recognises the legal doctrines (which are often disregarded by the police and the mass media) that there is a presumption that you should be granted bail, and that you are innocent until proven guilty.

If you are aware police wish to charge you with an offence, you will increase your chances of bail by making an appointment to see them, with a lawyer. If you do this, go very early and on a week day, so that if police refuse bail you'll go before a magistrate that morning, and not be held in police cells overnight.

If you are refused bail by the police outside of court hours, you can apply for bail from a bail justice. If you are refused bail by the bail justice, you must be brought before the Magistrates' Court as soon as practicable. You then have the right to apply for bail.

Bail Conditions

Bail may be granted subject to conditions that may include such things as:
  • You undertake to appear in court
  • You or someone else agree to forfeit a sum of money if you fail to appear in court as required (ie. a surety); the amount of money must be within your means
  • You stay away from an area (eg. a protest site) or a witness
  • You surrender your passport
  • You tell the police if you change your address
The condition of "staying away from an area" has been increasingly used against activists, to prevent them returning to the protest site.

You may want to object on the grounds that it is an infringement of your basic rights. However, it will be likely that you will need to show a legitimate reason for entering that area, or that such a restriction is necessary in all the circumstances. Where you have been arrested for nonviolent demonstration, you may be able to argue that there is no need for a condition stopping you returning to a particular area.

If the magistrate insists, and you are forced to accept or lose your freedom, you can accept the condition and later make application to vary the condition. You may also consider lodging an urgent application to the Supreme Court to vary the bail and delete the condition. However, you should note that it takes some time to have a bail application listed in the Supreme Court, and if you have not accepted bail with the condition attached, you will be held in custody pending the listing of your bail application.

Keeping arrest records

If you have been arrested, or have been a witness to arrests, it is very important to keep a personal and detailed written record or tape record of any incidents you have with the police, including the time and date of the incident. If you have been assaulted, it is important that you see a doctor as soon as possible and ensure that the doctor records your injuries and what happened.

Take photos if the injuries are visible. If someone else takes photos of your injuries, you may need to call them as witnesses, so make sure you have their contact details. You should also record the names and contact details of any witnesses to the assault, and of the people who saw you immediately before and after the incident. Do not notify the police that you have made these records.

There is no law that prevents you from video-taping any events or taking photographs while protesting if these events are taking place outdoors.

Forensic procedures

Police have power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe that the result of the procedure will tend to confirm or disprove the suspect's involvement in an indictable offence.

You should refuse to undergo any forensic procedure unless the police have a court order compelling you to do so.

Under both the Victorian and the Commonwealth Crimes Act, there are now specific legislative powers for taking forensic material from suspects. The following information focuses on the requirements of the Victorian law, which is found in sections 464R to 464ZK of the Crimes Act 1958 (Vic). The Commonwealth law is found in sections 23WA to 23XWA of the Crimes Act 1914 (Cth), and is dealt with briefly below. Forensic procedures include:
  • Intimate samples: pubic hair, anal, external genital or breast swabs, saliva, mouth scrapes or dental impressions
  • Non-intimate samples: hair, fingernail or toenail scrapes, external swabs or washings
  • Other samples, or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include the taking of fingerprints)
The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect's age.

Adults

A forensic procedure can be conducted if either:
  • The suspect gives his or her informed consent to the conduct of the procedure. Before a suspect can be said to have given informed consent, police will have to provide certain information, or
  • a Magistrates' Court orders that the procedure be conducted
You should refuse any request for forensic samples and ask to speak to your lawyer.

Commonwealth offences

The conduct of forensic procedures under Commonwealth law ( Crimes Act 1914 (Cth)) follows the general procedure set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect.

Where such consent is not forthcoming, an authorised police officer may seek a court order for the conduct of the procedure.

The distinction between an intimate and a non-intimate sample or procedure is also present in the Commonwealth Act, however there are some slight differences in definition and approach. There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non-intimate forensic procedure to be carried out on a suspect.

The Commonwealth Act imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal people and Torres Strait Islanders.

Being charged

When you are charged (either at the station or later by summons), the charge sheets will set out the following:
  • The alleged offence
  • The act or legislation name and section under which you have been charged
  • Your name, address and date of birth
  • The name, rank and station of the police informant laying the charges
  • The date and venue of the court at which you must appear
The first thing you should do after being charged is to contact your Legal Support Team or a lawyer.

Once you have retained a lawyer, that lawyer will request the ‘brief of evidence' from the police. This brief of evidence should contain all the witness statements, photographs, forensic tests and samples, exhibits, telephone intercepts, videos and any other evidence the police intend to rely on to prove the charge against you.

If you do not have a lawyer, you should request this brief of evidence directly from the police informant yourself.

See Approaching the court for legal information about dealing with a court appearance.

 Source: http://www.activistrights.org.au/handbook/print/ch02s11.php

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