Rights Abused While in Police Custody

The safety and wellbeing of people being held in police custody is again in the spotlight with shocking allegations emerging that a woman was held for 16 hours at Ballarat police station in regional Victoria, and not provided with any water to drink.

According to court documents, she eventually became so desperately thirsty that she drank the water from the toilet in her cell.

The allegations arose as part of the Victorian Independent Broad-based Anti-corruption Commission’s (IBAC) enquiry into the conduct of two Ballarat police officers. The enquiry will determine whether the officers should face a public hearing over allegations of misconduct.

It is also alleged that the woman was:

• Capsicum sprayed.
• Forcibly searched.
• Left partially naked in the presence of male officers.
• Kicked, stomped on and stood on while she was handcuffed on the ground.
• After showering to remove the capsicum spray, left in a wet shirt and underwear for five hours.

Two officers have been suspended over the incident, although no charges have been laid.

IBAC has taken particular interest in this matter, because there has been a series of assault allegations made by women against Ballarat police officers.

In fact, the ABC reported that out of 133 police officers in Ballarat, 27 have been complained about. This constitutes more than double the rate of complaints for other police stations in the area.

Complaints of police brutality aren’t new, and we need only look to the ten-year Royal Commission into Aboriginal Deaths in Custody to know that the problem has been an enormous one for many, many years.

While IBAC is dealing with the allegations and we can hope for an outcome that makes police custody safer, it is timely to take a look at a person’s rights when in custody.

The legislation in NSW

In NSW, stints in custody are governed by the Law Enforcement (Powers and Responsibilities) Act.

The Act provides that a person who has been arrested may be held in custody for a maximum period of four hours. This is known as the investigation period. At the end of this time, the person must either be released or charged and brought before a magistrate as soon as practicable to determine how the matter is to proceed.

Police can apply for a detention warrant to extend the time in custody by a further four hours, and there are also “time outs” that do not count towards the time spent in custody. They include:

• The time taken to travel to the police station.
• Time spent with a lawyer.
• Time taken to get medical assistance.

The Act also provides that when arriving at the police station, the person in custody must be:

• Cautioned that anything they say or do may be used in evidence.
• Informed of the maximum detention period and that the period may be extended with a detention warrant.
• Informed that they may contact a friend or relative.
• Informed that they may contact a lawyer and that the lawyer can be present during the investigation period, especially when the person is interviewed.
• Provided with a telephone or other means of communication to contact friends, a lawyer or relatives, and the privacy to do so.
• Requested to sign an acknowledgement that they have been informed of their rights.

There are provisions that allow foreign nationals to access consular officials and interpreters.

The person in custody is also entitled to be provided with:

• Medical attention if the person requests it, or if the police think it necessary.
• Refreshments – food and water as is reasonable.
• Toilet facilities.
• Facilities to wash and shower if reasonably practicable.

Vulnerable persons include children, people who are physically or intellectually disabled, Aborigines and Torres Strait Islanders and people from non-English speaking backgrounds.

The Act provides for them to have a support person present during the investigation.

There are also special provisions for people arrested for suspected terrorist activities.

Searches

A person may be searched by frisk, ordinary or strip searches.

Searches are to be conducted in accordance with the Act and must be the least invasive search possible in the circumstances. The Police Code of Practice says that

“any personal search must be carried out in a manner that preserves the privacy and dignity of the person being searched, as far as is reasonably practicable.”

The code also says that a strip search should be performed by an officer of the same sex as the person detained, and where possible in the presence of a senior officer.

In considering the Victorian case, the search of the woman would not have complied with the NSW legislation, or the code.

In fact, the code states that police officers are accountable for their duty of care towards people under arrest and others in their custody at any time.

The code also says that if the person is violent or objects to being searched, reasonable force may be used to conduct the search, but any restraint should be reasonable and humane. This would not include kicking, stomping on and standing on the person under arrest.

When the Act is breached

Should police breach any of the Act’s requirements, a complaint could be made to police internally or to the NSW Ombudsman.

If it is found that the arrested person’s rights have been violated in breach of the Act, the police officers responsible may be suspended and face disciplinary action including termination of their employment.

Further, any confession or evidence obtained from the arrested person may be inadmissible or contaminated. This could have a significant impact on the strength of the police’s investigation.

However in practice, complaints made to police themselves are often ignored or improperly investigated, and as outlined in our other blogs, the NSW Ombudsman has insufficient resources to properly investigate the thousands of complaints that he receives against police each year.

And even if the complaints are investigated and police are found to have breached laws or conduct rule, the Ombudsman does not have the power to discipline officers himself; rather, he must refer the matter for further investigation by other bodies.

The bottom line

The bottom line is that in all too many cases, police who have breached their own codes of conduct, or have otherwise broken the law, receive little or no discipline – often being reinstated after a period of suspension with full pay.

And while it is essential for police to act within the law, the current system of police investigating and ‘disciplining’ themselves, or matters being referred to an overwhelmed and ‘toothless’ Ombudsman, appears to have done little to deter offending officers.

If you have been mistreated in police custody, it is important to get advice on your arrest rights from an experienced lawyer. If the misconduct is serious, a lawyer may be able to assist you in pursuing a claim for compensation against the police force.