The Australian High Court has handed down a finding that prevents the police putting a citizen under arrest unless they intend to proceed to laying a charge and that will have a profound effect on civil liberties.
This decision actually came from an appeal by the State of New South Wales against a lower court order that upheld that principle but our highest court decided that " arrest cannot be justified where it is merely for the purpose of questioning ".
The case was brought by a man who was subject to an apprehended violence order. He was arrested by a New South Wales Police constable, questioned and released without charge in 2013. The court found that Police had no intention to charge him when he was arrested.
This High Court decision confirms that arrest is an extraordinary power involving the deprivation of liberty. which should only be used as a last resort. The arrested person was put under pressure to talk to police as a result of the trauma and stress of being under arrest.
A NSW police spokeswoman said police had noted this High Court decision and will be considering the judgement and its implications, but it seems that the wide practice of arrest and release without charge has been removed from the law books.
It is quite possible that this will result in a change of police tactics. There are many virtually unenforced laws that a police officer could use to justify an arrest that failed to provide expected evidence. Failure to cross the road at a marked pedestrian crossing is termed " J-walking " and such a charge would bring a small fine. This law would be circumvented whenever minor infringement led to the laying of a charge.
Perhaps this will have its biggest implication in the area of strip searches. Should a person indicated as having drugs on their person by the actions of a sniffer dog refuse to take off their clothes the police would normally put them under arrest. This law change throws open the extent of police power when it comes to the average persons notion of modesty. It is a vast violation of the rules of society to require a person to strip naked in front of complete strangers and undergo the intimate investigation of their genitals.
It seems certain that this will be put to the test at the next music festival when someone selected for a search refuses !
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