When can police arrest without a warrant?

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Under arrest

Under the current law, in the Law Enforcement (Powers and Responsibilities) Act, you can be arrested without a warrant when:

  • If you are in the act of committing a statutory offence;
  • If you have just committed a statutory offence; or
  • If you have committed a serious indictable offence which you haven’t been tried for
  • If a police officer suspects on reasonable grounds that you have committed a statutory offence

Police must not arrest you for the purpose of taking proceedings of an offence unless it is necessary to do so in order to:

  • to ensure your appearance in court in respect of the offence;
  • to prevent a repetition or continuation of the offence or the commission of another offence;
  • to prevent the concealment, loss or destruction of evidence;
  • to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings;
  • to prevent the fabrication of evidence in respect of the offence; or
  • to preserve your safety or welfare

But they must always consider alternatives to arrest first – such as a caution, a warning, an infringement notice, a penalty notice, a court attendance notice or a youth justice conference.

Police can discontinue an arrest at any time. Examples of when this should happen are when the arrested person is no longer suspected, the reason for arrest no longer exists or it is more appropriate to deal with the matter in another way, such as the alternatives mentioned above.

According to current Police guidelines, the only purpose for arresting someone without a warrant is in order to take a suspect before a justice to be dealt with according to the law.

Police can make an arrest using words and consent, or by touching. If police officers use force when making an arrest, they may only use the amount that is reasonably necessary to make the arrest or to prevent the escape of an arrested person.

Before an arrest, police officers must:

  • give you evidence that they are a police officer (unless they are in
  • state their name and place of duty;
  • tell you the reason for arrest; and
  • provide you a warning or refusal to comply with a request you make during the arrest may be an offence

To find out about the current police guidelines, click here.

However dramatic departures to the above laws have been set out in new legislation. As December last year, the NSW Parliament assented to increased powers of police to arrest without a warrant. This legislation is not yet in effect.

It has been criticised for being passed without any kind of formal consultation process and likely to lead to a surge in the number of arrests made.

Known as the LEPRA Amendment Act 2013, it adds new grounds to reasons when police can arrest a person. It does this in two broad ways, by extending the reasons for a lawful arrest and also departing from the previous rule that arrests are a last resort.

The move came as part of a general increase in police powers in New South Wales.

This year police powers expanded to include the discretion to fine a drunk person who refuses to move on with $1100 (more than five times the previous amount) as well as the power to impose a 48 hour CBD-precint ban on troublemakers and mandatory drug and alcohol testing to be conducted on violent offenders once charged at a police station.

While police are pleased at their new powers, for others they see the new laws as a cause of concern.

Arrests are an interference with a persons liberty, and cannot be infringed upon lightly. Courts have been affirming this for years, recognising that the purpose of arrest is to bring the accused before a justice to be dealt with according to the law.

Arrest is the beginning of imprisonment, and should only be dealt out when justified by law. Arbitrary arrests are harmful to society, erode the suspects rights and interfere with the principle that a person is innocent before proven guilty.

Former Premier O’Farrell had criticised the previous legislation, claiming there was too much ‘legal red tape’ and used as a slogan during the brief media campaign “uncuff police so they can handcuff criminals.”

Visit our section about arrest rights for further information.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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