CRIMINAL LAW: I’VE BEEN ARRESTED. NOW WHAT?
April 12, 2017
Being arrested can be stressful and frightening. If you don’t understand what’s going on, it can be even more difficult. The key to handling the situation is to remain calm and behave in a polite and cooperative manner. And there’s no doubt that it also helps to know your rights.
Are you actually under arrest?
Police officers are allowed to question you if they suspect that you are involved in some form of illegal activity. They can even request that you accompany them to a police station. It’s important to remember that unless or until you are arrested, you are allowed to leave whenever you wish.
If the police then decide to arrest you, it must be made clear to you that you are under arrest. Once under arrest, you are not allowed to leave and police may use as much force as necessary (reasonable force) to detain you. This may include handcuffs and/or restraints. If you resist a lawful arrest, you could be charged with an additional offence. This is one of the reasons why it helps to cooperate with police.
Upon arrest, you are only required to give your name, date of birth and home address (and business address if relevant). While the arresting officer may ask you for more information, they can’t force you to provide anything further.
There are exceptions to this rule. For example if you are arrested for a driving offence, you must also give police details about who owns the car. You must also show your licence to police within 48 hours (if you hold a full licence), if requested. If you are arrested for a firearms offence you must also answer questions about your firearms licence.
Remember that refusing to provide this information, or providing false information, is an offence.
Police custody and your rights
When you have been arrested you have a number of rights. You have the right to:
- Remain silent.
- Contact a friend or relative to inform them of your arrest.
- Have a lawyer, relative or friend present while you are being interviewed.
- Have an interpreter present.
- Receive medical treatment if necessary.
Let’s take a closer look at some of those rights.
Right to remain silent
Upon arrest, a police officer will tell you that you have the right to remain silent and that anything you say may be used in evidence. They should also tell you why you are being arrested and the allegations against you.
You may feel like you must tell the police officer everything in order to get across your side of the story. But remember that you have the right to remain silent. Try to remember everything you say is “on the record.” That is, anything you say may become evidence.
Police officers want to gather as much information as possible because the burden of proof lies with them. Good cop – bad cop, tricks and promises, leniency and descriptions of harsher punishments are all various strategies that are often used in obtaining information from suspects.
Even if you are taken into a room and your interview is recorded on camera, you still have the right to remain silent. Some people are nervous in front of authority figures and believe they must answer “yes” even if they don’t understand what is going on. For this reason, it is quite common for a police officer to ask you to expand on your understanding of the questions. For example, “do you understand you don’t have to say anything?” or “can you explain to me what that means to you?”
Right to legal assistance and other support
If you are arrested, it is important to seek legal assistance as soon as possible. You have the right to speak to a lawyer whilst you are being detained. Even if you can only get a lawyer on the phone, try to ensure that this conversation is kept private.
You have the right to make a telephone call to a friend or family member, but remember that police have the power to refuse contact with certain people. The same goes for your right to have someone present during questioning. You may have a lawyer, friend or relative present, but once again police have the power to refuse certain people to be present.
If English isn’t your first language, you also have the right to have an interpreter present during your interview with police.
Being charged or released
Once arrested, police can lawfully detain you for up to four hours if they suspect that you have committed a serious offence. After that time, they must charge you with committing an offence, release you or get a court order to keep you for longer. A court order can allow police to detain someone for up to 8 hours without charge.
Do I have to give a DNA sample?
The short answer is yes. The law says that DNA samples, finger prints and photographs may be taken if you are suspected of committing a crime. While it is in an offence to refuse these procedures, it is important that you seek legal advice to ensure they are carried out lawfully.
Will I be kept in custody?
Once you have been formally charged with an offence, you may be eligible for bail, but this is not an automatic right. In most cases it will depend on the seriousness of the charge. You may be granted police bail, which means that you will be released that day under particular conditions. If police bail is refused, you will remain in custody until you appear before a magistrate who will decide whether to grant you bail.
If you’ve been arrested, stay calm and remember your rights. Most importantly, remember that help is only a phone call away. Websters Lawyers has a dedicated team of criminal lawyers who can assist you. Contact us today.