The importance of professional policing in our society cannot be underestimated. Police are there in times of personal or community emergencies. They help us travel safely on our roads, and allow us to thrive in a safe community, free from crime and disorder and filled with freedom, security and justice. The Australian public have, over the years, come to rely on the police force to provide our community with each of these fundamental values.
Last month, two videos were released showing Victorian police officers engaged in violent arrests with a disability pensioner, and a 23-year-old suffering an alleged psychotic episode. Unsurprisingly, when videos like this come to light, the public may begin to question police legitimacy and the rights of police officers both during and after arrest (WARNING: Footage may be distressing to some viewers).
What powers of arrest do South Australian police have?
In South Australia, a police officer may, with or without a warrant, arrest a person who is caught committing an offence, or a person the officer reasonably suspects has committed or is about to commit an offence.
The amount of force a police officer can use when making an arrest, however, is the subject of much controversy, often producing divided opinions across the nation.
How much force can police officers use when making an arrest?
In South Australia, a police officer is permitted to use reasonable force to arrest if an individual refuses to accept arrest.
In these circumstances, reasonable force means using enough physical force to arrest an individual, but no more.
The same reasonable force may be used against an arrested person when taking photographs, and fingerprints, and when carrying out a forensic procedure.
Arrested persons are advised, by police officers, to cooperate throughout these processes, where resisting arrest or forensic procedures may result in unnecessary harm or being charged with further offences for resisting.
What is “reasonable force”?
Ambiguity in the test for “reasonable force”, and thus, identifying what may constitute “excessive force”, can mean that sometimes police officers’ actions are contestable. It simultaneously, however, makes allegations of violence or excessive force contestable, and in some circumstances, difficult to prove.
Ultimately, what constitutes reasonable force is determined on a case-by-case basis by the courts when an officer’s actions are contested. This will often include an assessment of whether the arrested person was resisting arrest by acting violently, struggling, running from, or verbally abusing the police.
What happens when police have exceeded reasonable force?
In circumstances where the police have exceeded what is reasonable in all the circumstances, the officer may be found to have committed the offence of criminal assault and may be further liable for a civil action of assault and/or battery.
Where assault and/or battery are proved in the context of police actions, the burden then rests on the police officer to establish that they acted with lawful justification. That is, the police officer must be able to justify the force used.
If you would like any advice in relation to a matter mentioned in this article, contact Andersons Solicitors.
Today’s blog has been written by Law Clerk, Julia Arena and settled by Partner in Family Law, Eva Bailey.