So, you find yourself at a music festival about to drop and bang the long arm of the law crashes your party. What to do? Well I’ll explain some pointers for you below. If you have just been arrested call a lawyer right now.
I’m a lawyer, I’m just not your lawyer so don’t rely on this as legal advice. Check your local law to see what the deal is where you live, this is primarily information for my fellow Victorians but for those of you living in New South Wales-land ya’ll owe a massive thanks to @KateonTheGo on Twitter. She’s informed me the procedures and rules are similar in NSW, obviously not identical but check the bottom of this page for the links to NSW law.
Powers of arrest aren’t exclusive to cops, you can be arrested by anyone. Let’s assume for the purposes of the exercise that it’s the police. The powers of arrest are found in s458, 459 and 459A of the Crimes Act 1958 (Vic).
A warrant is not needed for your arrest if the police is arresting you to make sure one of these four things happens: to make sure you will appear in court for a hearing, to keep the peace, to stop you from continuing an offence like having, selling, or taking drugs or for your safety or the safety of the people around you.
The police need to usually actually catch you in the act to arrest you, but depending on how serious the offence is they don’t have to nab you red handed. The process and powers of arrest are tricky because there’s a lot of law that applies here. Each circumstance can be different depends on the facts but generally:
1- Remain Calm
The police have a lot of discretion when exercising their powers of arrest. This is why you should remain calm. I know it’s shit being in this powerless position but it can always get worse if the police decide to further spoil your fun.
The Crimes Act says that the police don’t have to arrest you if they catch you committing an offence if they are convinced that you will turn up to court if the court send you a summons to attend. (s 461(2) of Crimes Act.) You could avoid arrest by playing nice.
2- Ask: am I under arrest?
If you are under arrest you should be told and why, even if it’s in general terms.
If you resist arrest a police officer can charge you with resisting arrest; they can also use whatever force they need to arrest you. Obviously you’re not free to leave, provided that you are actually under arrest. If you ask, am I under arrest? And the answer is no, then…
3- Don’t go anywhere with the police if you don’t have to.
The police have to actually make physical contact with you and intend to or actually physically detain you. If they don’t physically touch you then there can’t be an arrest unless you submit to them and you go willingly with the officer.
Submitting to the po-po is a tricky one. Because, the police may ask you for a ride in their car to go back to the station to answer some questions; this isn’t technically an arrest, but if you genuinely believe you are actually under arrest then things get crazy murky.
General rule, if you’re not actually under arrest, don’t go anywhere with the police. They can’t even detain you for questioning (unless you’re a terrorist, let’s assume you’re just out for a good day in the sun for now.)
You don’t even have to go with them if they ask you to take a drug/alcohol test back at the station if they catch you driving. However, refusing to take the test is an offence so, you know…
4- Where do you go?
Let’s assume the worst and you’re under arrest, you’ll be now taken in to custody. More often than not you’ll have to travel in the back of the divvy van and you may be handcuffed.
Once you’re in custody the police may ask you for your details, fingerprint you, ask to take a photograph, ask you for a statement, they may interview you, search you, charge you and maybe release you under certain conditions until you appear in court.
5- Call someone
You have the right to make two phone calls; one to a friend and the other to your lawyer. Seriously, call a lawyer. If you think you don’t need one, you’re wrong. Call a lawyer.
The police don’t have to let you make any phone call if they catch you behind the wheel drunk or high, or if they think one of your calls will help someone get away, or to put someone in danger or destroy evidence.
6- What do I say if I’m interviewed?
If you do not have a lawyer do not say anything. You say nothing at all. Under our legal system an accused person is presumed innocent until they are proven guilty. This presumption begins from the moment you are under arrest.
You wouldn’t perform surgery on yourself if you were sick. If you’re in legal trouble don’t try to be your own lawyer. If you can’t afford a lawyer the following places can help:
7- Make yourself useful
If your friend or someone in your group has been arrested don’t be a dick and leave them to their own devices. Make yourself useful by noting down information about the incident as best you can.
Record the time, the date, where you were, the name of your friend, what happened, which police officer arrested your mate ie- their rank and name, police car registration details, what each party said, etc. Try to be as specific as you can; If you don’t have a pen and paper then note it down on your phone. This may be invaluable later. Golden rule though, even though you aren’t under arrest play nice or you could potentially end up accompanying your friend.
Arrest is a big topic. I’ll discuss it further in the next post, particularly on things you should and shouldn’t do when you’re in custody.
FOR ALL OF YA’LL IN NSW your relevant laws are:
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) there’s a really good summary and some great fact sheets on the NSW Legal Aid website too!