Criminal / Police law

Don’t just give up

Some people wrongly feel that even if they are not guilty that it is hopeless to fight police charges. If you properly defend a case then usually you have a reasonable chance of success. We can give you realistic advice about your chances of success during your initial interview.

The Right to Silence - The Right to Decline to Answer Questions asked by the Police.

A person can be required by the Police to give the Police their name and address and to show the Police their drivers licence. Other than those things however, everyone has the right to refuse (politely) to answer any other questions asked of them by the Police whether those questions are asked on the side of a road, at a person’s home or in a Police Station. If a Police Officer repeatedly asks you questions you can repeatedly, politely decline to answer those questions. You simply have to say something such as “I decline to answer any further questions” and keep repeating that in response to any and every question the Police ask.

A negative inference cannot be drawn from your refusal to answer questions, unless there is a lawyer present with you at the time that you refuse to answer questions or unless you have obtained legal advice, say from a legal aid solicitor, or from having your solicitor attend at the Police Station with you.  If you have obtained legal advice, then that lawyer will talk to you about negative inferences.  If you haven't, if for instance the Police have brought you in for questions and you don't yet have a lawyer, they cannot draw a negative inference and they cannot invite the Court to draw a negative inference.  Simply continue to decline to answer any questions, and after you have been released, then you should make an appointment to speak with your solicitor.

Obviously if you want to answer questions asked by the Police, because, for instance, you are a witness and wish to help the Police, or you are the victim of a crime and you want the Police to assist you, then it is your choice whether or not you answer their questions.  You are free to either answer them or not answer them. If you start answering their questions then at any stage you can stop and refuse to answer any more questions.

The Police cannot detain you simply because you refuse to answer their questions. If they did so it would be an unlawful imprisonment/arrest on their part. The Evidence Act specifically protects any person who declines to answer Police questions from having the fact that they refused to answer questions used in any Court Hearing as evidence against them or as any basis to suggest that the person is guilty of anything.

It is important however that, in refusing to answer questions that you remain polite and calm no matter how many times the Police ask the same questions over and over again.

Do I have to submit to being fingerprinted or photographed?

Other than in the case of children under the age of fourteen (14), the Police may take your fingerprints and photographs for the purpose of identification. However, if you are eventually found not guilty or the charges are withdrawn, you can apply to have your fingerprints and photographs destroyed. In the case of children under fourteen (14), they can only be photographed or fingerprinted after the Police have obtained a Court Order
allowing them to do so.

Sometimes the Police may want to hold an identification parade. You do not have to take part in an identification parade if you do not want to.

Unlawful arrest

Police officers can only arrest a person in certain limited circumstances including:-

1. If the Police officer has reasonable grounds on which to believe that the person has committed an offence; and/or
2. That the person is about to commit an offence; or
3. That a valid warrant for the arrest of the person has been issued; or
4. That it is necessary to arrest a person to prevent them from fleeing the area and avoiding arrest; or
5. That it is necessary to arrest a person in order to prevent that person attempting to interfere with witnesses.

Even if the circumstances are such that the Police officer would be entitled to arrest a person, then the law requires the Police officer before they exercise arrest, if at all practicable, to advise the person of the Police officer’s name, his or her place of duty and the reason why the person is being arrested. If the Police officer is not in uniform then the Police officer must also provide evidence of the fact that they are a Police officer.

If a person is charged with assaulting a Police officer or resisting a Police officer when the Police officer is trying to arrest them, if it turns out that the arrest was not lawful, then generally the person will not be guilty of having assaulted the Police officer or resisting them.

If the Police have arrested you then they may be entitled to detain you for a period of usually up to four (4) hours for the purpose of investigating the matter, however, this does not in any way mean you have to answer their questions.

Bail

The Bail laws are very complicated, however, generally, most people charged by the Police will be released on bail unless the offence(s) are very serious, the person is a repeat offender and/or there is a danger of further violence or the Police fear that the person will not show up at Court. If the Police refuse to grant bail they are required to bring the person to a Court “as soon as practicable” so that the Court can decide whether the person should be out on bail.

If you apply for bail with the benefit of legal advice (for instance, if legal aid is present and they advise you or make your bail application for you), then you cannot make a further bail application unless there is a change of circumstances.  If you want Bruce Coode to make your bail application for you, then you cannot also make a bail application with the legal aid solicitor acting for you.  If you speak for yourself and ask the Magistrate for bail, without the benefit of legal advice, and it is denied, then you can still make a further application.  Often the duty solicitor doesn't have a lot of time to deal with your matter, Bruce will have more time to focus on your matter and the reasons that the Court should grant you bail.

Approaching the police about withdrawing or reducing charges

It is possible to adjourn a case and make representations to the police to withdraw or reduce charges. This needs to be done at the start before a plea is entered in court. Again we can advise you about this when we see you.

Claim for compensation

If you are unlawfully arrested or if you are wrongly prosecuted, then you may be able to claim compensation from the Police. This will depend on whether or not the Police acted properly and lawfully and the extent to which they breached their obligations.