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Is arrest lawful?

Information about when an arrest may be against the law.

A person who believes that their arrest has been unlawful can make a complaint against the police or other arresting person. They could also bring a civil law action for tort of false imprisonment. If excessive force was used when an arrest was made, whether by police or an ordinary citizen, the arrested person may take action in court for civil or even criminal assault.

The procedure for a lawful arrest is set out in the Victorian Crimes Act 1958. This procedure must be followed unless another Act specifically grants the power to arrest. Arrests that do not comply with a state or Commonwealth act are unlawful. There is no longer any power to arrest at common law.

In some circumstances any citizen is permitted under Crimes Act 1958 to apprehend person and take them before a bail justice or to a Magistrates' Court where they can be dealt with according to law.

An arrest could be unlawful if:

  • excessive force is used
  • the person is held for too long without being taken before a bail justice or magistrate
  • if arrest procedure is not followed.

See How an arrest is made and Citizen's arrest.

Were there reasonable grounds for belief?

If person is arrested with reasonable grounds for belief that they had committed an offence, the arrest will not be unlawful if it turns out later that police or citizen who made the arrest was mistaken in their belief.

Use of force

Force can be used to make an arrest for an indictable offence as long as the force is not disproportionate to the force that is reasonably necessary to make the arrest and prevent the commission of a crime. This means that if person resists arrest or struggles then it may be appropriate for more force to be used by person effecting the arrest.

Where the arrested person alleges that police or a citizen used excessive force they may be able to claim civil damages, however it has been argued that excessive force will not make an otherwise lawful arrest unlawful due to the excessive use of force. This is because force is not a requirement making an arrest so force is an additional element to be considered. Excessive force may lead to civil or criminal liability for assault.

False imprisonment

See English Court of Appeal decision Wiltshire v Barrett [1965] 2 All ER 271 at 277 where action for false imprisonment was sought for wrongful arrest. In that case the judge decided that as the arrest was otherwise lawful but the person making the arrest used more force than was reasonably necessary, the person arrested could be awarded damages for excessive force but the arrest, if justified, would not be considered to be unlawful.

A judge has discretion to exclude any evidence that was obtained illegally or improperly so this may well include use of excessive force during arrest.

Reason must be given or arrest is unlawful

The person must be told why they were arrested. Failure to do this makes the arrest unlawful. However, an arrest that is unlawful because the officer failed to give reasons for arrest can be made lawful as soon as reasons are given. Also a person can't claim that their arrest was unlawful if their attempts to resist arrest made it impossible for person to explain.

The person who is arrested must be:

  • told why they are being arrested. If this is not done the arrest is unlawful (Adams v Kennedy 49 NSWLR 78, [2000] NSWCA 152)
  • informed of their rights to remain silent
  • cautioned that anything said may be used as evidence
  • told of their right to communicate with others (such as family or a lawyer).

Questioning a person who is detained but not under arrest

People are often detained by police without being under arrest. Often the person who is detained thinks that they are under arrest. Legislation at both state and federal level provide for situations where people have been detained without an arrest being made. A person must only be detained for a limited period of time without an arrest being made.

It is illegal for person to be detained for questioning without being arrested (see R v Banner [1970] VR 240, 64 QJP 62 and Williams v The Queen (1986) 161 CLR 278).

If police refuse to say why person is being detained and have not indicated that they intend to take client before a magistrate but are refusing to release person, a solicitor may consider making an application to Supreme Court for Habeas Corpus. This is now quite rare, however the suggestion of commencing proceedings may prompt police to act.

Evidence may be ruled unlawful and inadmissible if it is obtained by persistent and intimidating police questioning after defendant has clearly told police that they do not want to answer (See R v Jukov (1994) 76 A Crim R 353). Courts have a discretion to allow evidence to be heard despite police contravening the legislative requirements.

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 457—persons not to be arrested without warrant except under Crimes Act unless Act gives express powers of arrest
  • s. 458—person found committing offences may be arrested without warrant by any person
  • s. 458(2)—defines offence
  • s. 459—additional powers of police force to apprehend without warrant
  • s. 461—arrest on reasonable grounds not to be taken to be unlawful
  • s. 462—definition of 'finds committing'
  • s. 462A—use of force to prevent the commission of an indictable offence
  • s. 464I—no power to detain person not under arrest

See Crimes Act 1958 (Vic).

Crimes Act 1914 (Cth)

  • Div. 4—arrest and related matters
  • s. 3ZC—use of force in making arrest

See Crimes Act 1914 (Cth).

References

Victoria Police Manual

This manual has information about police policy and procedure about arrest.

See Victoria Police Manual—Arrest powers and warrant to arrest.

Relevant cases

First point

Updated