How do I know if I am under arrest?
An arrest is effected if words such as “you are under arrest” or “I am arresting you for ...” are used while at the same time touching or taking hold of the arrested person so that it is clear that he or she is being arrested.
However the police do not need to use these words to arrest someone. They ought to inform a person why they are under arrest and a person can be under arrest even if they are not touched, if the effect of the police action is to stop a person from doing what he or she wants. An arrest is only valid if the police reasonably suspect a person of either committing an offence, being about to commit an offence or having committed an offence.
Is being asked to accompany the police to a police station the same as being arrested?
No, not if it is merely a request. An arrest occurs when a person has no option but to accompany police because their freedom has been taken from them (whether effected by words or actions such as placing on handcuffs). Where someone voluntarily accompanies police in response to a request, this is not an arrest.
This is the case even if the person is accompanying police only because they think they will be arrested if they do not. However, police should make it clear that an arrest is not being made if that is the case. If police act in such a manner as to create the impression a person is under arrest when they are not, any subsequent information provided may be excluded by the courts.
Is there anything the police must advise me of?
A person under arrest should be told of the right to remain silent, to have a friend or relative told of their arrest and to speak to a lawyer and have an interpreter present if required.
Normally the arrested person must be informed of the true grounds of arrest within reasonable time. However, this is not necessary if the arrested person obviously and clearly knows the nature of the offence for which he/she has been arrested.
Reasonable cause required for arrest to be valid
Generally an arrest will be lawful if the officer who carries it out has reasonable cause to suspect an offence has occurred or will occur. The arresting officer may be mistaken as to the facts, and the person later released. Provided, however, the officer had an honest and reasonable belief in the relevant facts, then they have acted lawfully. For that reason no attempt should ever be made to resist arrest. Civil action can however be taken for damages or compensation if a wrongful arrest is made.
Use of reasonable force
A police officer may use as much force as is reasonably necessary to arrest the person. Unreasonable force is assault. Where there is a dispute as to the reasonableness of force used, it will be up to the court to decide whether the force used was reasonable in the circumstances.
Handcuffs or a similar restraint are reasonable force where the person has physically resisted arrest or attempted to run away.
Hindering and resisting arrest
It is an offence to resist or hinder a police officer in the execution of his or her duty – including the making of a lawful arrest [Summary Offences Act 1953 (SA) s 6]. Both hindering and resisting involve a conscious and voluntary act on the part of the person concerned. That is, the person concerned must have realised that his/her actions frustrated the police in performing their duty.
Hindering does not have to require physical interference, although it can involve this (e.g. physically preventing police from lawfully entering a property to speak to an occupant). It can include behaviour such as constant and unwarranted interrupting of police whilst attempting to question another person or acting as a ‘lookout’ to warn others of a police presence.
Resistance also requires some kind of positive action designed to defeat police in performing their duties. Although most commonly it involves physical force by the person being arrested, it is arguable that even traditional passive resistance techniques commonly employed in civil protests (such as sitting or lying down, linking arms with others and becoming inert and refusing to cooperate) can constitute resisting arrest as they also require physical action, even though not aggressive in effect.
Where direct force is used to resist arrest the likelihood of a police officer being assaulted during the process is high. Assaulting a police officer during the course of their duties is a serious offence attracting heavy penalties under either s 6 of the Summary Offences Act 1953 (SA) or s 20 of the Criminal Law Consolidation Act 1935 (SA).
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.