Is it an offence to resist an unlawful arrest?

It’s no secret that some police officers act outside of the law, including when it comes to arrests.

For a range of reasons, those under arrest may be reluctant to assert their rights – even if they know they’ve done nothing wrong. They may not be aware of their rights, or may be afraid that police will assault or charge them, or may just want to cooperate and get it over and done with.

Most people know that resisting arrest is a crime in NSW, but an interesting question is whether it is still an offence if you were arrested illegally.

It should be said that it’s never a good idea to resist an arrest, as it could make things harder for you down the track, or even land you in hospital.

But let’s take a look at the law when it comes to resisting an unlawful arrest:

Resisting arrest

The offence of resisting arrest and/or hindering police in the execution of their duty is laid out in section 546C of the Crimes Act 1900, and comes with a maximum penalty of 12 months imprisonment and/or a $1,100 fine.

Conduct that may amount to resisting arrest includes refusing to be handcuffed, struggling and attempting to get away. Conduct that may amount to an assault – including kicking or punching at police – may also constitute resisting.

There is no legislation in NSW about whether or not a person has the right to resist an unlawful arrest.

This means that we have to look at what judges have said in court when interpreting the laws on arrest; and thankfully, many have found that a person cannot be found guilty of resisting arrest if the arrest was unlawful in the first place.

So what constitutes an unlawful arrest?

Unlawful arrest

Arrests can be unlawful for a range of reasons: there may have been no basis for the arrest, or police may have failed to comply with procedural requirements, or they may have used excessive force.

1. Grounds for arrest

Police powers were recently increased to allow them to arrest people in a wider range of situations.

Police can arrest a person if they have a warrant, or without a warrant if they are “satisfied that the arrest is reasonably necessary”:

(i) to stop the person committing an offence or another offence,

(ii) to stop the person fleeing,

(iii) to enable inquiries to be made to establish the person’s identity,

(iv) to ensure that the person appears in court,

(v) to obtain property connected with an offence,

(vi) to preserve evidence or prevent the fabrication of evidence,

(vii) to prevent harassment or interference of witnesses,

(viii) to protect the safety or welfare of any person, or

(ix) because of the nature and seriousness of the offence.

For a person to be found guilty of resisting arrest, the prosecution must prove beyond reasonable doubt that the officer was acting “in the execution of his or her duty.” According to the NSW Supreme Court, an officer cannot be acting in that way unless at least one or more of the above grounds are established. If they are not, the offence of resisting arrest cannot be made-out.

2. Procedural requirements

Unless it is impractical for them to do so, police are required to inform a person of the reason that they are being arrested.

There are certain exceptions to this rule, including terrorism charges and where a person’s conduct makes it very difficult for the officer to communicate the reason.

But in general, police must tell a person why they are being arrested. In a classic 1947 case, one English judge put it this way:

“Is a citizen bound to submit unresistingly to arrest… in ignorance of the charge made against him? I think, my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and slaves.”

Despite the age and jurisdiction of the decision, it remains good law in NSW; and has been quoted with approval by several NSW judges. It is also reflected in section 201 of the Law Enforcement (Powers and Responsibilities) Act (“the LEPRA”).

So, if police unreasonably fail to inform you of the reason for your arrest, you may be able to argue that the arrest was unlawful and that any charge of resisting arrest cannot therefore be established.

3. Excessive force

Section 231 of the LEPRA says that police officers can only use “such force as is reasonably necessary” to arrest a person.

However, police in NSW are notorious for using heavy-handed tactics during arrests.

If a police officer uses excessive force, you may be able to rely on self-defence under section 418 of the NSW Crimes Act to defeat a charge of resisting arrest and/or assaulting police.

That section says that a person is not guilty of an offence if:

• He or she reasonably believed that the conduct was necessary to defend themselves or another person, and
• The conduct was reasonable in the circumstances as the person perceived them.

Self-defence is the most commonly used defence to charges of resisting arrest and assaulting police.

It is also important to be aware that the use of excessive force by police officers without legal justification amounts to an assault under the criminal law, although officers are rarely disciplined let alone criminally prosecuted for the illegal use of physical force.

Fighting an unlawful arrest

If you are charged with resisting arrest, it is advisable to speak with an experienced criminal defence lawyer as early as possible. Many Sydney law firms offer a free first consultation if you are going to court, so you can get an idea about your options and the best way forward without having to pay money.

If your lawyer believes that your arrest was unlawful, he or she should write to police formally requesting that the charges against you be dropped, and foreshadowing an application for legal costs  if they nevertheless pursue the charges against you.

When choosing a criminal law firm, it is a good idea to have a look through their recent cases and client testimonials to get a feel of whether they are the right firm for you.

Take special care to ensure that they have Accredited Specialist Criminal Lawyers and that their fees for different types of cases are clearly displayed, so there are no nasty financial surprises down the track.