Analysis: Unlawful Arrest and Unlawful Use of Force of by Police – Part 2:  The Dangers of Resisting Arrest.

This is Part 2 of our 2 Part series discussing the recent CCC report attacking WA Police for ‘oppressive’ tasering of a motorist in Fremantle. There is a video of the incident, released by the CCC, circulating online that adds some context to this article. Part 1 dealt with the Dealing with the Police and can be accessed here. 

Another thing I want readers to think about is the danger of resisting unlawful arrest regardless of whether you are the target or someone you’re trying to help. The risk here is huge. Whilst it is technically legal to resist unlawful arrest with the use of reasonable force: my advice is don’t do it. Simply allow the police to make the arrest and deal with the issue of whether or not it was lawful later.

If the arrest was unlawful: a criminal lawyer can help you respond in an appropriate manner.

The following are my list of reasons why I say you should NEVER resist an unlawful arrest or intervene to prevent one:

1. Mistake is not a defence.

Resisting unlawful arrest involves an assumption that the arrest is unlawful. It is a big assumption to make in the heat of the moment, when emotions are high and tempers flared and particularly so if you don’t have any legal training.

Lawyers and judges routinely make mistakes of law. If you get it wrong and it turns out that the arrest was lawful: you’re screwed. You cannot argue that you made an honest mistake.

Any force used by you in an attempt to prevent the arrest becomes an assault upon police. You’ll likely end up being charged with any number of offences ranging from obstructing police to assaulting a public officer or worse.

If you caused bodily harm in the course of resisting arrest, which includes bruising or scratches: you’ll be up for a mandatory six months imprisonment. And if you happen to have hepatitis or some other serious disease: you’re looking at up to 20 years in jail. Yep, up to 20 years for doing an act with the intent to resist arrest that is likely to transmit a serious disease.

When you think about what you could end up being charged with as a result of trying to resist arrest for something as minor as flashing your headlights: it simply isn’t worth the risk.

2. The law is always changing.

In the brave new world since 9/11: the world we live in is concerned more about safety and security and less about individual rights. This is reflected in our legal system and the change is only going in one direction.  Police are being given more and more power over us. The pace of change is unrelenting. Even for us lawyers: there is work involved just keeping pace with all the changes. In 2018 the powers that police have to enter private property, to detain people, to conduct searches are vastly different to how it was when the world trade towers were standing. Just because you heard a few years ago that police didn’t have the power to arrest people for a particular offence or under certain circumstances: chances are what you know is old news

3. Reasonable Suspicion = Lawful Arrest.

Generally speaking, a police officer is entitled to arrest someone where the officer reasonably suspects that the person has committed or is in the process of committing a serious offence.

A “serious offence” is any offence for which the statutory penalty is five years imprisonment or more OR is an offence involving an active family or domestic violence.

Also, they can arrest someone where the officer reasonably suspects that the person is about to commit an offence. What you need to remember is that the police don’t need any evidence. Only a reasonable suspicion.

Finally, the police can still arrest someone for something that is not a “serious offence” if the officer reasonably suspects that if the person is not arrested:

• it will not be possible, in accordance with law, to obtain and verify the person’s name and other personal details; or
• the person will commit another offence; or
• the person will endanger the safety of another person or their own safety; or
• the person will endanger another person’s property; or
• the person will interfere with witnesses or the course of justice; or
• the person will conceal evidence of the offence.

Even with a video camera capturing the entire incident a video camera only records or people say and do. It doesn’t record subjective beliefs or thoughts. Because of this, it is very difficult to contradict a police officer who says they held one of the “reasonable suspicions” listed above.

4. Resisting is only going to get you hurt.

Remember: the police are just about always armed. Usually with firearms. But they also have pepper spray, tasers, batons and other things that you won’t access to. Because if you did have access to such items: the police are allowed to arrest you for that.

Police are trained to only use firearms as lethal force. In other words: they shoot to kill, not to injure. Just remember that if you find yourself in a situation where a police officer is pointing a firearm at you.

Tasers and capsicum spray are meant to be used as alternatives to the use of lethal force. Police are not permitted to use tasers or capsicum spray for compliance.

Under normal circumstances when making an arrest, the police are allowed to any force that is deemed to be necessary to overcome any resistance. The law also says that the police are permitted to use any force reasonably necessary short of grievous bodily harm to prevent somebody from escaping from lawful arrest. In other words: as long as they don’t inflict life-threatening or permanent injuries it’s probably okay. I like to call this the “Wheelchair” rule. No wheelchair = reasonable force. Wheelchair = excessive force. It’s a little complicated this, but you get my drift.

But that’s only under “normal circumstances”. If the police, on reasonable grounds, suspect that you have committed an offence that is punishable by life imprisonment, like arson for example, they can use ANY level of force to prevent you from escaping arrest including intentional lethal force. Yep, they can kill you for torching a port-a-loo. And they don’t even need to have to the correct person. If you just so happen to bear a striking resemblance to a wanted arson suspect: just go peacefully. Your striking resemblance to said arson suspect would be reasonable grounds for arresting you and for shooting you dead trying to escape. Even though you didn’t do it.

5. It’s your word versus theirs.

I mentioned earlier on in this article that the blue uniform carried with it an aura of credibility. An arrest that is unlawful under one set of circumstances might be perfectly legal under slightly different circumstances. You’d be amazed how much the sands shift in the aftermath of a controversial arrest. Unless you’re somehow managing to resist four heavily armed officers whilst simultaneously documenting the occasion with a video camera: there’s going to be room to move afterwards. And even if you could manage such a feat: you’re still not safe.

If you are right and the police did try to arrest you for an offence for which there is no lawful power of arrest: they’ll probably figure that out at some stage and possibly try justifying the arrest in some other way. And as long as the police can establish that they held a reasonable suspicion that the person had committed an “arrestable” offence: the arrest will be lawful. The point I’m trying to make here is not that the police make up bogus suspicions of phantom charges to justify their actions: it’s that there is often more than one way to justify making an arrest.

Opinion Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily constitute legal advice. The views and opinions may not reflect the official policy or position of any agency of the Western Australian government or any other authority. Any advice is advice of a general nature only and does take into account your individual circumstances.  Examples of analysis performed within this article are only examples and should not subjected to real-world testing. For advice that is relevant to your individual circumstances: please make an appointment with one of our experienced criminal lawyers by calling Paxman & Paxman on 1300 274 692.