RIGHTS & CONSEQUENCES Jackson Rogers NSW Council for Civil Liberties Activist Training Day – UTS – 29 March 2014

ARREST RIGHTS & CONSEQUENCES

Jackson RogersNSW Council for Civil Liberties

Activist Training Day – UTS – 29 March 2014

Established 1963 aims of the organisation include “to assist in

the maintenance and protection of the rights and liberties of persons in Australia and its Territories...by vigilance...legal action and advice...and assistance to individuals.”

Long history supporting the right to protest and freedom of assembly

Non-partisan and non-sectarian

NSW Council for Civil Liberties


Breach of the peace Police on the street Police arrest Search At the station Bail and court Right to protest Q&A

PRESENTATION


19th Century Ireland


(2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

LEPRA, s 4


http://www.austlii.edu.au/au/legis/nsw/consol_act/leara2002451/s3.html

See R v Howell, where Watkins LJ in the English Court of Appeal, defined breach of the peace in the following way:

'disturbance' …in isolation cannot constitute a breach of the peace. ”

“There is breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawfully assembly or other disturbance.”

Definition – Breach of the Peace


Breach of the Peace

Forbutt v Blake, Connor ACJ said:“A mere statement by a police constable that he anticipated a breach of the peace is not enough to justify his taking action to prevent it; the facts must be such that he could reasonably anticipate not a remote, but a real, possibility of a breach of the peace.”


Commr of Police v Rintoul [NSWSC] 2004

There is, in my opinion, no evidence from which I could conclude that there would be likely to be any breach of the peace. I say this, having had regard to the submissions put by counsel for the Commissioner to the effect that, given the traffic congestion that can be expected, it is likely that tempers will be frayed and there may be some confrontation. In my opinion, that submission does less than justice to the commonsense and goodwill of the residents of suburban Sydney, who may be frustrated by any delays that they encounter, but are not, in my opinion, likely to engage in such conduct as would create a breach of the peace.


Vehicles Near the scene of a serious crime Large-scale public disorder (s.87A LEPRA) Public transport Unpaid fines Searching ‘drug premises’ Drinking alcohol in public Under 16 Terrorism

◦ HOWEVER, BETTER TO GIVE THEM IN A CONFIDENT MANNER


Police ask name & address

Do you have to give ID? Can police search you for ID?


ID

Do you have to answer questions? Should you answer questions? ‘Move on’ powers

◦ Police can give reasonable directions if they have reasonable grounds to believe that your conduct or presence is: Obstructing people or traffic Harrassing/intimidatory Causing fear (or likely to cause fear) to others Connected with illicit drugs

AG 2nd Reading: “The key purpose of [the move on powers] is to enable police to disperse persons acting in a disruptive manner before a situation gets out of hand.”

What if you think a direction is unfair?


Police on the Street

Reasonable grounds for suspecting you are carrying:◦ Stolen goods◦ An item that has been used or about to be used in a

crime◦ Drugs◦ Knifes etc

Under special public disorder powers◦ BEWARE OF CONSENTING TO SEARCH◦ MUST GIVE REASON FOR SEARCH BEFORE

SEARCHING After arrest

SEARCH


©Tim Cole 2002

DPP v Jackson & Funnell Magistrate Ellis:

“The common law does not permit police officers or anyone else…to search a person simply to see if he may have committed some crime or other. …In the common law, goods can’t be seized from a person where there has been no arrest and the seizure has not occurred during the execution of a search warrant.”

SEARCH ONSTREET


s.4A – Offensive Language

s.6 – Obstructing traffic

s.11A – Violent disorder

Crimes Act: Trespass, damage to property

Other: Anti-discrimination Act

SUMMARY OFFENCES ACT


s.23 – Summary Offences Act

Form 1 – Sent to Commissioner of Police

Authorised Public Assemblies


R v O’Donoghue (1988) per Hunt J:“An arrest occurs whenever it is mady plain by what

is said and done by the police officer that the suspect is no longer a free person...”

R v Lavery (1978) per King CJ:“If...the circumstances are such as to convey...that

the suspect has no real choice, his freedom is under restraint...If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to go...”


WHAT IS ‘POLICE ARREST’?

They catch you committing/having just committed an offence

They suspect on reasonable grounds you have committed an offence

They have a warrant for your arrest Know or suspect you have breached bail Prevent a breach of the peace (or

imminent breach of peace), eg fight

WHEN CAN POLICE ARREST YOU?


Provide evidence they are an officer (unless in uniform)

Their name and place of duty Tell you that you are under arrest Tell you why they are arresting you

◦ WHAT ARE YOUR KEY QUESTIONS?


ARREST - WHAT POLICE MUST TELL YOU

DPP v Carr [2002] NSWSC per Smart J:“This Court has been emphasising for many

years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and no reason to believe that a summons will not be effective.”


LAST RESORT

Police can use reasonable force to arrest you or stop you breaking the law

Capsicum spray Tasers Firearms


USE OF FORCE

The trifecta◦ Don’t resist – unless that is your point◦ Don’t swear – this should never be your point◦ Don’t touch or spit at the police

Do◦ Take video footage (not yourself)◦ Ask questions

POINT OF ARREST


Ordinary search Frisk search Searching for things in mouth and hair Strip search Body cavity search – must be done by doctor

◦ AGAIN, ASK THE REASON FOR THE SEARCH◦ DON’T RESIST IT BUT STATE CLEARLY THAT YOU DO

NOT CONSENT◦ REMEMBER SEARCH MUST BE PROPORTIONAL TO THE

SERIOUSNESS OF THE OFFENCE – THERE IS NO REASONABLE BASIS FOR A SEARCH IN PROTEST-RELATED OFFENCES


TYPES OF SEARCH

Breach of peace is not an offence – they must let you go after the situation has stabilised

Detention only if reasonably suspected of committing a crime

4 hours – investigation time but this does not include ‘time outs’

Don’t talk to people you don’t know in your cell Be careful what you say on telephone Custody manager – responsible for your rights

STATION


Right to silence Communicate with friends/family Communicate with lawyer Reasonable refreshments Toilets

YOUR RIGHTS IN CUSTODY


Police may take fingerprints, palm prints and photographs

Police may take DNA of a suspect – do not consent.


FINGERPRINTS & DNA

Exercise it Wait for your lawyer Beware of visiting Legal Aid with the

arresting officer

RIGHT TO SILENCE


As soon as reasonably practicable Nominal presumption in favour of bail


BAIL

If you can, get a lawyer S.10 Crimes (Sentencing Procedure) Act

1999 Stick to the truth

COURT ATTENDANCE


$1,600 going rate for s.10 application (including all appearances)

Beware of lawyers costs

LEGAL COSTS


Career and travel implications Two records – one 10-year & one for life People are discerning

CRIMINAL RECORD


UN Declaration on Human Rights, Art 20:(1) Everyone has the right to freedom of peaceful assembly and association.

ICCPR Article 22 states:◦ Everyone shall have the right to freedom of

association with others

International Law


“Resolution 15/21 reaffirms that “everyone has the rights to freedom of peaceful assembly and of association”...This provision must be read jointly with article 2 of the ICCPR, which stipulates that “each State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”...and article 26 thereof, which guarantees to all individuals equal and effective protection against discrimination on grounds identified in article 2. This applies inter alia to minors, indigenous peoples, persons with disabilities, persons belonging to minority groups or other groups at risk, including those victims of discrimination because of their sexual orientation and gender identity (see Council resolution 17/19), non-nationals including stateless persons, refugees or migrants, as well as associations, including unregistered groups. The rights to freedom of peaceful assembly and of association are key human rights in international human rights law, which are enshrined in article 20 of the Universal Declaration of Human Rights.”

United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association:


http://www.ohchr.org/EN/Issues/AssemblyAssociation/Pages/SRFreedomAssemblyAssociationIndex.aspx




“The rights to freedom of peaceful assembly and of association serve as a vehicle for the exercise of many other...rights. The rights are essential components of democracy as they empower men and women to “express their political opinions, engage in literary and artistic pursuits and other cultural, economic and social activities, engage in religious observances or other beliefs, form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable” ... Such interdependence and interrelatedness with other rights make them a valuable indicator of a State’s respect for the enjoyment of many other human rights.”

Freedom of assembly


THANKS & QUESTIONS


Documents

RIGHTS & CONSEQUENCES Jackson Rogers NSW Council for Civil Liberties Activist Training Day – UTS – 29 March 2014