Arrest

Contributed by Richard Davies and current to 16 December 2021.

The power to arrest

In the ACT the power of arrest is regulated by Part 10 (headed Criminal Investigation) of the Crimes Act 1900 (''Crimes Act'').

Citizen’s arrest

Under s 218(1) of the Crimes Act, a person who is not a police officer may without a warrant arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence (the requisite belief). This power is most commonly exercised by store detectives apprehending a person whom they suspect of having engaged in shoplifting and security guards at hotels, clubs and sporting venues to apprehend someone who is being violent or threatening violence towards others. However anyone may exercise this power of arrest provided they have the requisite belief.

Under s 218(2) Crimes Act, a person effecting a citizen’s arrest, must, as soon as practicable after the arrest, arrange for the person arrested and any property found on that person to be delivered into the custody of a police officer. Provided the citizen effecting the arrest holds the requisite belief and does their best to deliver the person they have just arrested up to a police officer, there should be no repercussions for them.

Police arrest

Powers of arrest

Police arrest without a warrant

Under s 212 Crimes Act, a police officer may without a warrant arrest a person for an offence if the police officer suspects on reasonable grounds that the person has committed or is committing the offence.

However a police officer may only arrest a person if they suspect on reasonable grounds that if they did not arrest the person and proceeded by way of summons to attend court instead, one or more of the following purposes might not be achieved:

• ensuring the person appears before a court;
• preventing the continuation of the offence or further offences being committed;
• preventing the concealment, loss or destruction of evidence;
• preventing harassment of, or interference with, potential witnesses;
• preventing the fabrication of evidence;
• preserving the safety or welfare of the person.

In other words, unless the police officer has such suspicions held on reasonable grounds the person should not be arrested and instead the police officer should arrange for them to be served with a summons to attend court.

However, under s 212(2) Crimes Act, in the case of a family violence offence (as defined in the Family Violence Act 2016) the police officer may proceed to arrest a suspect without first deciding whether it would be more appropriate to proceed by way of a summons to attend court instead.

Other police powers of arrest without a warrant

• Under s 213 Crimes Act, a police officer may arrest where a warrant has been issued for the arrest of a person but not in the possession of the police officer when he or she encounters the person named in the warrant;
• Section 214 Crimes Act allows for arrest of a prisoner whom a police officer suspects on reasonable grounds to be unlawfully at large from an ACT or interstate prison;
• Police may also arrest a person without a warrant where the person is suspected on reasonable grounds to have committed an offence against the law of a state or another territory, provided that interstate offence would constitute a serious offence (that is, an offence with a maximum prescribed penalty of 5 years imprisonment or more) if committed in the ACT.

Police arrest with a warrant

An arrest warrant is a document commanding police officers to arrest the person named in the warrant and bring them before a court. According to s 185 Crimes Act, in the ACT an arrest warrant may be issued by a judge registrar or deputy registrar of the Supreme Court, a magistrate and, if authorised by the Chief Magistrate, a registrar or deputy registrar of the Magistrates Court.

The warrant may be issued for an alleged offence or as a consequence of having failed to appear at court.

A warrant for an offence should not be issued until a police officer (the informant) has provided an affidavit identifying the reasons why it is believed the person committed the offence and the reasons why it is claimed that proceedings by summons would not be sufficient having regard to the criteria listed in Police arrest without a warrant.

A person arrested on a warrant must be brought before a court as soon as is reasonably practical.

Power to enter premises to arrest offender

Entering premises with a warrant

A police officer with a warrant for the arrest of a person for an offence believing on reasonable grounds that the person is in any premises, may enter the premises for the purpose of searching for the person or arresting him or her. Under s 220(1) Crimes Act, a police officer may use reasonable force necessary to enter the premises.

Entering premises without a warrant

According to s 220(2) Crimes Act, to effect an arrest for a relevant offence a police officer without a warrant (with power under s 212 Crimes Act to arrest without a warrant, see Police arrest without a warrant) may enter the premises the officer believes on reasonable grounds that the person is in.

Section 220(4) Crimes Act defines a relevant offence as:

• an offence which is punishable by more than 12 months imprisonment (a serious offence);
• an offence involving possessing an offensive weapon or disabling substance; and
• an offence of minor theft,

Carrying out of Police Arrest

The following rules have laid down the requirements for a lawful arrest:

1. The requirements for a lawful arrest are:
   (i) Communication of the intention to make an arrest, for example, by saying ‘I arrest you’ or ‘you are under arrest’; and,
   (ii) a sufficient act of arrest or submission.
2. For the purposes of 1. any form of words which bring to a person’s notice that he or she was under compulsion and no longer a free person.
3. If the person under arrest submits by words, for example by stating ‘you have caught me fair and square’ or conduct, for example offering the police officer one’s wrists to be cuffed, then 2. will not be necessary.
4. For the purposes of 2. conduct on the part of a police officer, for example, by touching the person under arrest on the shoulder or the arm, or submission to the arrest by words or conduct by the person under arrest.
5. The person who is under arrest is entitled to know and a police officer is obliged to inform him or her on what charge or on suspicion of what offence he or she is being arrested, though this need not require the use of technical or precise terms. This means an arresting officer may indicate he is arresting for an assault committed on a named complainant whereas the charge ultimately laid may be assault occasioning actual bodily harm or inflicting grievous bodily harm once the seriousness of the injuries are known. Following are the sections, s 222(1) and (2) Crimes Act, and s 18(3) Human Rights Act 2004 .
6. This requirement does not exist if the circumstances are such that he or she must know the general nature of the alleged offence, for example, being caught in the course of committing a burglary or while engaged in a street fight, see s 222(3)(a) Crimes Act.
7. Similarly the requirement does not exist if the person under arrest creates the situation that makes it impossible to inform him or her, for example, by attacking the officer or running away, see s 222(3)(b) Crimes Act.

Police powers following arrest

Search powers

Following arrest, a police officer may search the person arrested by way of

• A frisk search, if the police officer suspects on reasonable grounds that it is prudent to do so to ascertain whether the person is carrying any seizable item , that is, anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody – see relevant s 223 Crimes Act. Section 185 Crimes Act defines ''frisk search'' as:

(a) A search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) An examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

An ‘ordinary’ search if the police officer suspects on reasonable grounds that the arrested person is carrying either evidential material relating to any offence or a seizable item, see s 224 Crimes Act;

• If an ordinary search has not been conducted prior to the arrested person being brought to a police station, a police officer may conduct an ordinary search at the police station, see s 226 Crimes Act;
• If a person is arrested at premises, the arresting officer may seize anything in plain view that the police officer believes on reasonable grounds to be either evidential material or a seizable item, see s 225 Crimes Act;

A strip search may be conducted at a police station if:

(a) a police officer suspects on reasonable grounds that the person has in his or her possession evidential material or a seizable item; or
(b) the police officer suspects on reasonable grounds that a visual inspection of the person’s body will provide evidence of the person’s involvement in an offence; and
(c) the police officer suspects on reasonable grounds that it is necessary to conduct a strip search to recover that thing or to discover that evidence; and

• a police officer of the rank of superintendent or higher must first approve the conduct of a strip search or the person consents to the strip search in writing, see s 227 Crimes Act;
• Section 228(1) of the Crimes Act sets out rules for the conduct of a strip search;
• Where the person to be searched is a transgender or intersex person, the person may require that the search be conducted by either a male or a female, see s 185A Crimes Act.

Having searched the person under arrest, a police officer may seize any items found that constitute evidential material or a seizable item.

Safekeeping of items seized

Under s 229 Crimes Act, a police officer having seized items the police officer is required to make a record of the items seized and give them to the officer in charge of the police station for safekeeping.