Police have three primary powers:
- Prevent and deter crime from occurring by maintaining a public presence.
- Investigate criminal activities.
- Assist in the prosecution of offenders.
The main piece of legislation referred to is the Law Enforcement (Powers and Responsibilities) Act 2002, which outlines:
- The power to arrest (section 21)
- A person cannot simply be arrested for questioning.
- Police must either have an arrest warrant, or they must be arresting a person for the purpose of taking them before a court, based on reasonable grounds.
- Issue cautions and warnings
- This is generally used for smaller offences, such as public order offences.
- Issue infringement notices
- Used only for traffic offences, the police officer can make the motorist pay a fine to compensate their offence.
- Stop, search and detain
- Confined to situations where police have reasonable grounds to suspect that a person/vehicle is carrying an illegal article.
Police powers are the powers which police have in investigating a crime
Search and seizure
– Police have the power to search people,places and motor vehicles, and seize or take evidence
– They have the power to search premises in order to investigate a crime, this can be done if they occupier gives consent or the police have a search warrant
– Police can search anyone reasonably suspected of possessing stolen property or anything which could be used in committing a serious offence
– Police may also search a person after arrest
Access to information
– Computerised Operational Policing System (COPS) gives police the ability to cross-reference details of all “persons of interest”
– It shows people with a criminal history, people with an outstanding warrant, someone who is the subject of an intelligence report or an domestic violence order, anyone who holds a gun licence, a person with a history of mental illness, a victim of a crime or a suspect.
– Concerns of privacy have been raised
– Police have the right to ask questions, but a suspect need not answer them except in special circumstances such as: a driver must produce his/her licence on request, a person must give their information if they have been involved in a motor accident and a person must give information to a customs officer about drug smuggling
– Most police stations are now equipped to video or audio taped interviews to protect an alleged offender of being verballed
– Police may tap phones if they obtain a warrant from a judge first. They do not need a warrant in cases of sieges, kidnapping or hostages
– Surveillance cameras in public street have been set up by local councils and police, this has seen a significant drop in crime because people feel safer in these areas.
– Concerns have been raised due to an invasion of privacy
– Police may order an arrested person to undergo a medical examination, this includes DNA samples and forensic evidence
– This provides an establishment for a DNA database
– If a person is reasonably suspected of committing a serious crime and refuses to consent to giving a sample then the police can take a sample of hair by force, or can obtain an order from a magistrate to take a sample by force
– The law enforcements (powers and responsibilities) Act 2002 allows police to keep a suspect for 4 hours for investigation. An application must be made to a magistrate to keep a suspect for up to 8 hours.
– A drunk and disordered person may be detained for up to 48 hours without arrest.
– A person suspected of being about to engage in terrorist activity can be detained in prison for 48 hours without charge
Fingerprints and photographs
– Police have the power to take photographs of an fingerprints an arrested person, for identification
The role of discretion in the exercise of police powers
– Police discretion can play a large role in the investigation of criminal offences. Police must decide, because of limited resources, which areas to patrol, which crimes to target and which reports to investigate.
– Lack of resources also affects how thorough the investigation is. In poorer socioeconomic areas it is often easier to find someone to accuse of a crime, due to this the crime may not always be as thoroughly investigated as it could be.
– An individual police officer uses discretion to decide whether to investigate certain behaviour, whether to charge a suspect or whether to let a young offender go with a caution. The decision of the police offender may be influenced by the alleged offender’s race, appearance, family background or address.
Extract from Legal Studies Stage 6 Syllabus. © 2009 Board of Studies NSW.