Last updated 25 August 2016
Arrest is the process of a person being required to be taken into police custody. Because it encroaches upon the liberty of citizens, this power can only be exercised to the extent permitted by parliaments through the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) and other legislation. An unlawful arrest can give rise to a civil and criminal action in relation to an assault and false imprisonment.
Arrest with a warrant
A warrant is a written authority from a justice of the peace, magistrate or judge for the arrest of a named person. For non-indictable offences, the person issuing the warrant must be satisfied that proceedings by way of complaint and summons or notice to appear would be ineffective (s 371 PPR Act). An arrest warrant can be issued on the basis of sworn evidence from a police officer about a suspected offence for the failure to pay a fine, for a failure to appear in court or for a breach of parole. A warrant authorises any police officer to arrest the person named, wherever and whenever that person is found (see the Court Processes chapter).
Arrest without a warrant
Warrants are rarely necessary for the arrest of people suspected of crimes. Section 365 of the PPR Act specifies a range of circumstances where a police officer can arrest a person without a warrant, including where the officer reasonably suspects the person has committed or is committing an offence, and the arrest is reasonably necessary:
- to prevent the continuation or repetition of an offence or commission of another offence
- to establish the person’s identity
- to ensure the person appears in court
- to obtain or preserve evidence
- to prevent harassment of, or interference with, a person who may give evidence relating to the offence
- to prevent fabrication of evidence
- to preserve the safety or welfare of any person (including the person arrested)
- to prevent a person from fleeing a police officer or the location of an offence
- because the offence is a breach of a domestic violence order under ss 177 to 179 of the Domestic and Family Violence Protection Act 2012 (Qld)
- because the offence is assaulting or obstructing a police officer
- for questioning
- because of the nature and seriousness of the offence
- because the person is committing a security offence in or near a corrective services facility (ss 135(4), 136 Corrective Services Act 2006 (Qld)).
An escapee may also be arrested without a warrant (s 366 PPR Act).
Alternatives to arrest that do not involve taking the person into police custody include issuing a notice to appear or a summons. In this regard, people can ask police to use their discretion to issue a notice to appear at the time of arrest (s 382 PPR Act). Notices to appear are generally issued for minor offences, or in situations where police do not consider the person charged to be any risk of failing to appear or of interfering with witnesses. A person being charged should always ask police to issue a notice to appear, as this will avoid them being formally processed and detained in a watch-house sometimes overnight.
Under the PPR Act, police can detain a person for a number of reasons, including:
- if the person is under arrest for an offence or pursuant to a warrant
- under a court order to provide particulars (ss 471–472) for a forensic procedure (ss 464, 515) or to provide a DNA sample (ss 486, 488)
- to search the person (ss 29–30) or a vehicle (ss 31–32), or to execute a search warrant of a place (s 157)
- to deal with a breach of the peace (s 260 Criminal Code Act 1899 (Qld))
- if the person is at a crime scene (s 177)
- to test the person’s blood alcohol content in relation to driving offences (s 80 Transport Operations (Road Use Management) Act 1995 (Qld))
- to prevent injury or domestic violence (ss 609–611)
- to question the person in relation to an indictable offence they are charged with or are suspected of having committed (s 403).
There are safeguard provisions in the legislation that limit the length of time a person can be detained depending upon the circumstances.
Federal police powers of arrest in respect to federal crimes can be found in pt IAA div 4 of the Crimes Act 2014 (Cth). Powers of arrest without a warrant are largely the same as those in the state jurisdiction.