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Lecture 2

Week 2 - Arrest

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
ARREST BY CITIZENS: (Does not apply to police officers: s545A) S546: Arrest is lawful if: (b) By Citizen called on to assist Police – Police need only SUSPECT offence – citizen must KNOW arresting officer is in fact a police officer – UNLESS knowledge by citizen that no reasonable grounds for suspicion by police (c) By Citizen – Where FINDS the perpetrator committing the offence (d) By Citizen – Where offence ACTUALLY committed – BELIEF ON REASONABLE GROUNDS that person has committed it (belief decided by jury: McDowall) – [Irrelevant if wrong person] (e) Citizen if finds another by night (between 9pm and 6am: s1) Where circumstances afford REASONABLE GROUNDS for belief person is committing offence and citizen does so believe. S548(2): Arrest of persons found committing offences: When it is provided with respect to an offence that a person found committing the person found committing the offence may be arrested without warrant generally, it is lawful for any person who finds another committing the offence to arrest the other person without warrant. S549: Arrest of offender committing indictable offences by night: It is lawful for any person who finds another person by night committing any indictable act to arrest the other person without warrant. S550: Arrest during flight: There is a BELIEF ON REASONABLE GROUNDS that the: 1. Person has committed an offence AND 2. BELIEF is escaping from person pursuing AND 3. BELIEF purser has authority to arrest. • Belief is more than suspicion, suspicion is subjective where proof is lacking: George v Rockett S479: Arrest by owner/employee etc: Any person found committing a misdemeanor may be arrested without warrant by the owner of the property injured or the owner’s employee or a person authorised by the owner or employee. (a) N.B. Must be offence in Chapter 46: Arson, Attempted Arson, Setting fire to crops etc, attempting to set fire to crops etc & Wilful damage. S260 (1): Preventing a breach of the peace: Lawful for person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary to order to give the person into custody of a police officer. What is Breach of Peace: R v Howell 1. an act done or threatened to be done which either actually harms, or which puts someone in fear of such harm being done. Or 2. where harm is actually done or is likely to be done to a person or to the person's property, Or 3. a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. ARREST BY POLICE (WITH WARRANT): S391 PPRA (1) allows an officer to arrest a person named in a warrant. Indictable offences: s57 & 58 Justices Act Simple offences: s59 Justices Act and s204 PPRA N.B. If wrong person arrested, ‘believing in good faith and on reasonable grounds’: s252 CC If warrant defective: s253 CC BOTH ARE PROTECTED when acting in ‘good faith’ Warrant must state: s372 PPRA (1) (a) name of the applicant for the warrant and the applicant’s rank, registered number and station (b) that any police officer may arrest the person named in the warrant (c) the offence the person is alleged to have committed (2) it is sufficient to describe an offence in the words of the law defining it, or similar (3) a description of persons or things that would be sufficient in an indictment is sufficient ARREST BY POLICE (WITHOUT WARRANT) Police Powers & Responsibilities Act (PPRA) PPRA prevails if inconsistent: s9 PPRA S365 PPRA: Arrest without warrant: (1) Lawful for police officer, to arrest an adult (not children), if reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1or more of the following reasons: (a) prevention (b) establish identity (c) to ensure attendance before a court (d) to obtain or preserve evidence (e) to prevent witness interference (f) to prevent fabrication of evidence (g) to preserve safety of persons (h) to prevent flight (i) for assaulting police or disobeying direction (j) if offence against the Domestic and Family Violence Protection Act, s80 (k) because NATURE AND SERIOUSNESS OF OFFENCE [NOT DEFINED] (l) because the offence is: (i) an offence against the Corrective Services Act, s135(4); or (ii) an offence to which the Corrective Services Act s136 applies. (2) Lawful for police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence. ARRESTING CHILDREN: S365 PPRA (3): Section 1 does not apply to children, See Juvenile Justices Act s12 power to arrest child committing an offence (only if serious offence – if max 14 years or more: s13); OR s13 (1)(a) (i) Belief on reasonable grounds that it is necessary for the prevention of that or other offence; OR (ii) To prevent the loss of evidence; OR (iii) To prevent the fabrication of evidence; OR (iv) Belief on reasonable grounds child would not answer summons or attendance notice. ARRESTS FOR QUESTIONING STATUTE: Yes. Under s 365 PPRA (2): Lawful for police officer to arrest to investigate or question, if reasonably suspects has committed or is committing an indictable offence; OR Under s398 PPRA (b) if in lawful custody for a charge of an offence that has not been decided; OR Under s398 PPRA (c) if in lawful custody under a sentence for a term of imprisonment (or detention order for child) (b) Does not apply to undercover operations: s396 PPRA (c) Right to silence remains: s397 PPRA Conclude: The PPRA does not affect the court’s common law discretion to exclude evidence (s10 PPRA) as such statute applies, but can be overturned by common law discretion. DETENTION FOR QUESTIONING Can detain for a ‘reasonable’ time to investigate or question regarding ‘any indictable offence’: s403 PPRA (1)(b) Reasonable is defined as: s404 PPRA (1): (a) whether the person’s detention is necessary for the investigation of an indictable offence; (b) the number of indictable offences under investigation; (c) the seriousness and complexity of an indictable offence under investigation; (d) whether the person has indicated a willingness to make a statement or to answer questions; (e) the person’s age, physical capacity and condition, and mental capacity and condition; (f) for a person arrested – any time spent questioning the person before the arrest; (g) the need to delay or suspend questioning for time out purposes. (d) Can’t hold for more than 8 hours: s403(2) (e) W
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