New legislation results in clearer rights for suspects
Andrew A. Martin · September 24th, 2008
I have never been arrested. Not yet. I hope I have not tempted Fate to rectify her omission. As a young lawyer I routinely attended the Police Station and Magistrates’ Court to assist clients who had been arrested. Too often, I arrived to find my unfortunate client had decided to make a statement from which it was not possible to escape. My role was then to make a hasty plea in mitigation to prevent the full measure of the law’s retribution being meted out.
Every citizen of full age is presumed to know the law. This is a delightful fiction. It is a cardinal principle of our society that every citizen is also entitled to the full protection of the law, including arrested suspects. Until now, the rules regarding detention of suspects have been vaguely defined and unevenly applied. The Police and Criminal Evidence Act 2006 (PACE) as recently amended will, when it all comes into force, define the rights of persons who have been arrested. So, just what will these rights be? The following is a summary of the key points from sections 44 to 70 of the PACE Act.
• If arrested, you must be released unless charged within 24 hours (unless this is extended to a maximum of 72 hours by a chief inspector after a case review). In exceptional cases, a Magistrate may extend detention without charge up to 96 hours (excluding public holidays).
• If charged, you must be taken to the Magistrates’ Court at the next sitting, and in any event the next day (excluding public holidays).
• If arrested and released, you may be released on police bail or, if charged, on bail by the Magistrate.
• No personal search is permitted without reasonable cause to suspect that you have evidence concealed on your person or a weapon that may cause injury. No intimate searches may be conducted unless a police inspector has reasonable grounds to believe an item is concealed that could cause physical injury or a controlled drug is in your possession with appropriate criminal intent.
• If arrested, you must be informed of your rights.
• You have the right to remain silent.
• You have the right to have someone informed about your arrest.
• You are entitled to legal advice at any time and no later than 36 hours after your arrest (delay being justified only in serious cases).
• Interviews may be tape or video-recorded.
• Non-intimate samples may be taken without consent if it relates to a “recordable” offence (meaning any offence for which you could be imprisoned) and a previous non-intimate sample has not already been given or it was not suitable or insufficient for the relevant analysis.
• Intimate samples may not be taken without your consent unless you are arrested for a recordable offence and a previous non-intimate sample has proved insufficient.
• No fingerprints can be taken without your consent except in respect of a recordable offence.
• You may be photographed without consent. You do not have to be arrested or charged.
Space does not allow a full treatment of these rights but here are some basic guidelines to follow until professional help arrives:
• Stay calm: politely refuse to engage in any discussion of the circumstances surrounding your arrest until you have received legal advice.
• Sit tight: realise that you may be there for hours or over the weekend. If you have been arrested, but not charged, you can be given “police bail.” If this is refused, your lawyer can apply for bail to a Magistrate.
• Call someone who cares and whom you know will (a) be at home, (b) answer the phone, and (c) be willing to make further calls on your behalf. Parents or close friends can help you engage a lawyer to come to your aid quickly.
• Legal advice first: do not give a statement until you have obtained legal advice. The interview process involves a police officer asking questions and writing down your responses. You should ensure that any statement you sign is in your own words and not the officer’s approximation or summary. Your lawyer should be present while you make a statement.
• Protest at once: if you believe you have been treated unfairly or without due process or that you have been arrested improperly, you should make this known to the Duty Sergeant or Custody Officer at the Police Station at the first opportunity.
There is no substitute for professional legal help from an experienced practitioner. With his or her help, you can give appropriate assistance to the Police, and, if need be, your lawyer can assist you through the court process. Hopefully, the whole situation will turn out to be an unfortunate misunderstanding.
Andrew Martin is a founding partner of Mello Jones & Martin.