No one should be above the law, and that includes police. Unfortunately, not all police officers act within the bounds of the law at all times. A photo doing the rounds of social media over the holidays showed a police officer in uniform on a mobile phone while driving a police car — while double demerits were in force.
Often there are questions about whether an ordinary citizen can actually do something about a circumstance such as this. Under the law, citizens’ arrests can be made by an ordinary person if they see someone else breaking the law, as outlined in Section 100 of the NSW Law Enforcement Powers and Responsibilities Act. (the ‘LEPRA’)
But — does this extend to arresting a police officer who is committing a crime? Here is what the law says:
While Section 100 of the LEPRA says that anyone can make a citizens’ arrest, the circumstances in which a normal person can execute such an arrest are far narrower than those that apply to police. For instance, whereas police officers only need a ‘suspicion on reasonable grounds’ that a person has committed an offence to arrest them, normal people can only arrest in the following three situations:
- When someone is in the middle of committing an offence;
- When someone has just committed any offence; or
- Where someone has committed a serious indictable offence (carrying a prison sentence of 5 years or more) and they have not yet been tried for it.
Once a person has performed a citizen’s arrest, they are required to take the arrested person and any property found on them to an ‘authorised officer‘ as soon as possible.
There is nothing in the legislation that exempts police from being the subject of a citizens’ arrest. But it would be a dangerous venture to attempt to arrest a police officer, given that police in NSW are equipped with batons, handcuffs, capsicum spray, tasers and guns.
When considering making a citizen’s arrest you must be absolutely certain that the other person — whether a police officer or otherwise — was committing an offence. If it turns out that they were not, you could potentially find yourself facing criminal charges yourself for assault, and/or civil proceedings for compensation for assault, unlawful arrest and false imprisonment. If you attempt to arrest a police officer, you may face the more serious charge of assault police, and potentially resisting arrest also.
What Can I do if I Witness Police Breaking the Law?
As you can imagine, trying to arrest a police officer may not end well for you. Instead, you may wish to adopt one of the following courses of action:
Get your smartphone out and use it
If you see a police officer breaking the law in public, you can always pull out your phone or camera and start filming or taking photos.
Even if police tell you otherwise, filming police in a public area is completely legal. In fact, the NSW Police Force Media Policy (Section 10.3) clearly states that ‘members of the public have the right to take photographs of or film police officers, and incidents involving police officers, which are observable from a public space, or from a privately owned place with the consent of the owner/occupier.
Generally speaking, if a person takes photographs or videos police officers, operations or incidents from a public space, police do not have the power to:
- confiscate photographic or filming equipment
- delete images or recordings, or
- request or order a person to delete images or recordings.
If police officers try to confiscate equipment or interfere with members of the public to delete images or recordings, the officers may be liable for prosecution for assault or trespass to the person concerned.
Police only have a right to confiscate your phone and arrest you and stop you from filming if you are breaking the law at the time you are recording them, or if you are within a crime scene under investigation.
If you do find yourself arrested or your phone confiscated, then a good criminal lawyer will always be able to retrieve deleted footage by sending your camera to a forensic expert.
Report the police officer
Under section 202 of LEPRA, police are required to disclose their name and station (as well as evidence they are a police officer if not in uniform) if they are exercising a power – but there is no guarantee that they will comply with this requirement.
If you are able to get the police officer’s name – or badge number – you can make an ‘internal complaint’ to police, which is supposed to be investigated and determined by the officer’s superiors. You can make such a complaint at the police station, over the phone or in writing. However, this really is a situation of ‘police investigating themselves’, and is unlikely to result in any disciplinary action against the officer in question, let alone criminal charges. Police are notorious for protecting their own, so it is unlikely that justice will prevail.
Alternatively, you can report the matter to the Law Enforcement Conduct Commission who investigates allegations of police misconduct, among many other things. However, the LECC is inundated with thousands of complaints against police every year, and does not have sufficient resources to adequately investigate each one of them. And even if he does find that police committed an offence, the Ombudsman does not have any direct power to discipline them, let alone press criminal charges against them. He can merely make recommendations.
For offences involving corruption or ‘serious police misconduct’, such as accepting bribes, you can report the conduct to the Independent Commission Against Corruption (ICAC) or Police Integrity Commission (PIC), who may choose to investigate the matter and, in certain cases, require officers to attend to answer questions. Officers who are found to have acted corruptly, or to have lied during questioning, can face criminal charges against them. But once again, the resources and powers of the ICAC and PIC are limited when it comes to investigating allegations against police.
The problem in NSW is that there is no external body with sufficient resources and powers to properly investigate crimes committed by police officers. This means that police are often ‘above the law’, and those who are the victims of police misconduct – such as assaults – are left frustrated by the inaction of police superiors, the Ombudsman and bodies like the ICAC and PIC. Their only remaining alternative is often to seek compensation through civil proceedings against the NSW Police Force for assault, unlawful arrest and/or false imprisonment – which can be very expensive and financially risky.
Having said that, these avenues are less likely to land you into trouble than taking the law into your own hands – even if it appears that you are within your rights to do so.