Getting arrested can be a scary process, but it can happen to anyone. Having a basic outline of both your rights and those of the police can help you stay calm in what is otherwise a very stressful situation.
When can you be arrested?
Firstly, it’s important to understand when you can be arrested. If the police reasonably believe you have committed a crime and broken the law, they have the right to detain you. You can also be taken into custody if the police have a warrant for your apprehension or if they believe you are mentally unstable or have the potential to harm either yourself or those around you.
In any case, the police must tell you that you are under arrest; if they don’t, you don’t need to go with them, and you do not need to answer any of their questions. If you are in any doubt, you should explicitly ask if you are under arrest and, if so, why.
What to do when you are arrested
When you are arrested, the police are obliged to tell you the reason they have detained you. It is important you accept that, from this point onwards, there is no point trying to resist. Resisting arrest carries a separate charge, so try to stay calm and cooperate where you can.
Remember, also, the police have the right to use reasonable physical force to detain you should you attempt to escape or oppose them in any way. If they feel it’s required, they may also handcuff you.
The Miranda Rights
Unlike many other countries, the police in Australia do not need to read you the so-called Miranda Rights (the five-point speech you’ll have no doubt seen in countless movies, stating your right to legal representation etc.). However, they do need to caution you and explain your fundamental rights.
Your right to silence
Other than answering your name and address, you have the right to stay silent. It is a separate criminal offence to give false details but, other than that, you do not have to answer any further questions. A simple, “No comment” will suffice. Remember, silence is not an admission of guilt, and, in most cases, it’s better to say as little as possible to save incriminating yourself accidentally.
Your right to speak to a lawyer
You should request to speak to a lawyer as soon as possible. Legal firms like Criminal Lawyers Sydney George Sten & Co have vast experience of the law and will be able to advise you what to expect and what to do next. They have knowledge of a wide number of crimes, and so they should be able to offer their expert help just when you need it.
When you are taken into custody
Once you are formally arrested, you will be taken into custody at a police station, court, or another type of custody centre. The police have the right to hold you for a reasonable time before you are charged. There is no fixed guidance on what a ‘reasonable time’ is – though it is largely dependent on the severity of the offence.
If you are put in a cell, the police will take your belongings from you and give you a receipt so you can get them back.
When you are in custody, the police may:
- Ask you to provide your name and address, if they haven’t already
- Request that you provide a formal statement (you don’t have to)
- Ask to interview you. You have the right to refuse
- Take fingerprints from you
- Search you (this should be by a same-sex officer)
- Ask to take a photograph of you
- Charge you
They should also offer you two private calls – one to family/friends, one to your lawyer. You should be offered the right to speak to a lawyer before any further questioning begins. This is your legal right.