If you’ve been arrested, it is common to feel like you don’t have any rights and are at the mercy of the particular officers that arrested you. Particularly if you have been handcuffed or had force used to arrest you, or if you are held without charge for a lengthy period. However, despite how it may feel when you are under arrest, every person under arrest in Western Australia has a number of rights that must be afforded to them.

Those rights don’t change depending on the views of the particular officer who arrested you, or based on how heinous the allegations are against you. It is important in any criminal case to consider whether an arrested person was informed of their rights, and afforded specific rights. This is because a failure to inform a person of their rights in a particular case can result in evidence (such as a confession) obtained after the failure to do so inadmissible.

Rights of an arrested person

A person who has been arrested by an officer, under any authority or written law, is entitled to:

• Any necessary medical treatment;
• A reasonable degree of privacy from the mass media;
• A reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and
• If they are, for any reason, unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.

Further, in the case of a person under 18 years, the police must ensure a responsible adult has received notice of the intention to question the young person about an offence, before doing so. There are also various other laws relating to notifying responsible adults, and the rights of young people who are arrested, in the Young Offenders Act. These will be the subject of a separate article.

These rights apply to any person under arrest for any reason. This can include someone who is not suspected of committing an offence, for example someone who is:

• intoxicated in public;
• appears to be mentally unwell; or
• someone who is breaching the peace.

A person who is under arrest should be told they are under arrest, otherwise a person could argue they believed they were not in fact under arrest and this could be a defence to a variety of charges. A person does not need to informed, at the time of arrest, of the cause for the arrest. This used to be a requirement under the common law but it was replaced in Western Australia with the Criminal Investigation Act 2006 which does not require any reason for the arrest to be stated. Of course, the reason for the arrest may come under attack at a later trial because if the arrest was unlawful, then any force used to effect the arrest was unlawful and evidence obtained after the arrest may also be inadmissible.

Rights of an arrested suspect

An arrested suspect is a person who has either been arrested for a serious offence (maximum penalty of 5 years or more), or any other offence. There are a variety of situations when police can arrest a person for an offence that is not a serious offence, outlined in our previous article on police powers of arrest.

Arrested suspects have the same rights as arrested people outlined above. They also have the following further rights:

• to be informed of the offence for which they have been arrested, and any other offences they are suspected of having committed;
• to be cautioned before being interviewed as a suspect;
• to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner; and
• if they are for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.

The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect, inform them of their rights to communicate (or attempt to communicate) with a friend or a legal practitioner. They must also afford an arrested suspect their rights as an arrested suspect, outlined above, which includes being cautioned and told what offence they have been arrested for.

An officer may refuse an arrested suspect their right to communicate, or attempt to communicate, with a person if they reasonably suspect the communication would result in:

• an accomplice taking steps to avoid being charged;
• evidence being concealed, disturbed or fabricated; or
• a person’s safety being endangered.

It is quite common for police to withhold this right in complex and serious investigations.

What if police breach my rights as an arrested person/suspect?

The law provides that if a ‘thing relevant to an offence is seized or obtained’ as a result of an arrest, such as a police interview, any evidence derived from the thing, or from the exercise of the power of arrest is inadmissible, subject to certain exceptions. These include where:

• the person does not object to the admission of the evidence;
• the court decides otherwise, for a variety of reasons set out in the Criminal Investigation Act section 155; or
• in the case of an arrest of a child, the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a child.

The court will look at things such as the severity of the breach of the arrested person’s rights, and what impact that had on the police subsequently seizing or obtaining evidence. For example, where drugs are found on a person after they are arrested but police forget to give them the right to communicate with a friend before finding the drugs, this may be seen as an inadvertent or irrelevant breach that does not rule the evidence inadmissible.

On the other hand, a failure to caution a person suspected of murder before interviewing them, may result in the entire police interview being ruled inadmissible or ‘thrown out’ by the court. It is a question of degree and will turn on the particular facts of any given case.

Conclusion

There are numerous rights that both arrested people, and arrested suspects have. Those rights must be afforded to them in any given case, subject to the exceptions outlined above. A breach of an arrested person’s rights may impact upon the admissibility of any evidence obtained or seized after the breach of those rights. It is important to carefully scrutinize the conduct of an arrest in every criminal case, as it may be a significant factor that determines the admissibility of a confession, or other significant evidence. If you require expert advice about whether the police afforded you or a loved one their rights as an arrested person, don’t hesitate to contact James Jackson Criminal Defence today.