#8513 - Power For Police Officers To Arrest V3 - Litigation - Criminal Procedure Rules

Powers relating to Arrest

• LEPRA ss 99-102, 105, 107-108; Howie n 1722-1726, 1728

• SM 13-37

Note miscellaneous: Under s 11 and 12 police have power to request ID from people. Police have power to detain someone while they provide it.

Issues to figure out:

• Do the police have to say any particular words, such as “you are under arrest”?

• Is the arrestee entitled to know what they are being arrested for?

• Do the police have to know precisely the offence for which the person is being arrested or will a vague description suffice?

• Are the police entitled to physically restrain the person at the time of the arrest?

What does an arrest by police do?

• More things Police can do: Activates a number of coercive investigative powers eg detention, questioning, search and seizure;

• More things Police have to do: Imposes obligations on the police eg duty to inform arrestee of reasons for arrest, cautioning (informing of right to silence);

• More things arrestee has to do: Imposes obligations on arrestee eg not entitled to resist arrest;

  • May be exceptions: if arrest is unlawful maybe arrestee can resist. But if arrest is lawful arrestee has obligation not to resist.

• Lawfulness and propriety of arrest has implications for evidencen - eg admissibility of evidence at trial – s 138 of Evidence Act

  • Procedure of arrest and police following rules and regulation

Other:

• Meant to be a measure of last resort.

Rule: Mere words may be sufficient to amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person’s notice that he is under compulsion and he thereafter submits to the compulsion: Lewis v Norman.

• After an arrest the onus to prove lawfulness shifts to the D (Zaravinos)

Example:

• In R v Minh Quoc Le – Requiring persons to get out of a car and stand on footpath – was arresting them.

Note:

• No need for arrest for imprisonment to exist: Lassanah

Typical exam answer where PO has arrested X:

Ie if PO has arrested X without a warrant, for this arrest to have been lawful, the police officer must have had a suspicion on reasonable grounds that the person has committed an offence ( s 99(2) LEPRA) AND the arrest must be necessary to achieve one or more of the purposes set out in s 99(3)(a)-(f).

• Note – as PO did not arrest X in the act of committing an offence or just after committing an offence, or where the person has committed a serious indictable offence (where there is evidence eg DNA to identify the offender) – s 99(1) LEPRA is inapplicable.

How to validly arrest someone without a warrant

1. Option 1#: S 99(1) gives police officer power to arrest without a warrant a person:

   1. in the act of committing an offence (s 99(1)(a)) or

   2. who has just committed an offence (s 99(1)(b)) or

   3. a person who has committed a serious indictable offence for which person has not been tried (s 99(1)(c)): s 99(1) LEPRA

2. Option 2#: If PO suspects on reasonable grounds: A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument: s 99(2) LEPRA

   • See Rondo

3. Condition 1# for option 1# and option 2#: A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

   1. to ensure the appearance of the person before a court in respect of the offence,: s 99(3)(a) LEPRA

   2. to prevent a repetition or continuation of the offence or the commission of another offence,: s 99(3)(b) LEPRA

   3. to prevent the concealment, loss or destruction of evidence relating to the offence: s 99(3)(c) LEPRA

   4. to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence: s 99(3)(d) LEPRA

   5. to prevent the fabrication of evidence in respect of the offence: s 99(3)(e) LEPRA

   6. to preserve the safety or welfare of the person. : s 99(3)(f) LEPRA

4. Obligation 1# after arrest: No unreasonable delay: A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law: s 99(4)

5. Obligation 2# after arrest: Principles governing police procedures at time of arrest: Johnstone s 99 (Christie v Leachinsky)

Option 1#: S 99(1) gives police officer power to arrest without a warrant a person:

1. in the act of just committing an offence (s 99(1)(a)) or

2. who has just committed an offence (s 99(1)(b)) or

3. a person who has committed a serious indictable offence for which person has not been tried (s 99(1)(c)): s 99(1) LEPRA

Note: "serious indictable offence" means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more

For the arrest of X to have been lawful without a warrant under s 99(2) LEPRA the police officer must have suspected on reasonable grounds that X had committed an offence under any Act or statutory instrument: s 99(2) LEPRA

What amounts to ‘suspects on reasonable grounds”

• What info was in mind of PO? What is relevant is the information in the mind of the PO making the arrest, and whether that information afforded reasonable grounds for the suspicion formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances: Rondo

• Some factual basis is required and the evidence material relied upon must have probative value: Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value: Streat v Bauer; R v Rondo

• Reasonable suspicion involves less than a reasonable belief but more than a possibility and more than a reason to consider/look into the possibility of its existence. Streat v Bauer; R v Rondo Something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 21 LEPRA (eg reasonable suspicion that someone has something in their possession which is unlawfully obtained).

Example offences:

• Note that under s 11 and 12 police have power to request ID from people. Police have power to detain someone while they provide it.

Examples of reasonable suspicion found/not found:

• Not reasonable suspicion in Rondo (when required for the stopping of a car): mere fact that a person was driving a car they did not own or hire or lease is not sufficient to give rise to a reasonable suspicion. Many young people drive cars belonging to a parent or sibling: R v Rondo.

  • In Rondo: the young fresh faced man was driving a smart fast open coupe with some panel damage on Epping Road – when asked if car was his he replied no. At time of stopping car police officer did not have any material on which he could form any the reasonable suspicions...