Police and my rights

Proving your identity to the police

Police can require that you give your name and address in some situations, including if:

• you are driving a car or supervising a learner driver
  
• you’re suspected of committing an offence on a train or railway property
  
• police think you are under 18 and carrying or consuming alcohol
  
• police think you were near the scene of a serious offence
  
• police are trying to serve a fine default warrant
  
• police have emergency public disorder powers, you are in a target area and the police suspect that you have been or may be involved in a large-scale public disorder
  
• police suspect an Apprehended Violence Order has been made against you
  
• when the police give you a ‘move-on direction’ and they don’t know your identity.
  

If you are required to provide your details to police and you don’t, you may be committing a criminal offence.

If police suspect you are committing an offence, and you don’t tell them your identity, police can arrest you so that they can make enquiries to find out who you are.

Talking to police

In most cases, you have the right to silence if police are investigating you. This means you don’t have to do an interview, provide a statement or talk to the police about allegations, and you can’t get into trouble if you don’t. Police can’t refuse to give you bail just because you don’t do an interview or talk to the police about the allegations.

There are some exceptions to your right to silence including:

• if police think the car you are travelling in was used to commit certain types of offences, police might require you to tell them your name, or the names of other people in the car
  
• if police think your car was involved in an offence, they might ask you to tell them who the driver is, even if you weren’t in the car at the time. This is sometimes called a form of demand
  
• if you were involved in a car crash, police can require you to provide an explanation of the crash
  
• if you are suspected of terrorism offences.
  

If police want to speak to you, you should get urgent legal advice.

Special cautions

A special caution is a caution given by the police that states:

• you don’t have to say or do anything, but it may harm your defence if you don’t mention something during questioning that you later bring up in court, and
• anything you say or do may be used in evidence.

This is different to the caution you receive from a custody manager if you are detained by the police, and the caution given by the police before every interview. It is only given where police are investigating a serious indictable offence.

A serious indictable offence is an offence with a maximum penalty of life imprisonment or a term of imprisonment of five years or more.

You can only be given a special caution if:

• you are aged 18 years or older
• police have reasonable cause to suspect you have committed a serious indictable offence
• you are being questioned by the police about that offence
• you have a lawyer physically present with you in the police station.

Police can’t give a special caution to a person who is incapable of understanding what a special caution is.

There are no specific words that the police must use when giving a special caution.

After you have received a special caution, you must be given a reasonable opportunity to speak to your lawyer in private about the effect of the caution.

If you are given a special caution and you fail or refuse to tell a particular fact to police after you have been cautioned, during questioning, that you later bring up this fact in court, police can ask the court to come to a negative conclusion about why you didn’t tell them, for example, that you recently made up that fact. 

They can only do this where the fact is something that you could reasonably have been expected to mention during questioning.

The court can’t come to a negative conclusion if:

• the fact is undisputably true
• you were given the special caution after you failed or refused to tell the police the fact
• you weren’t given an opportunity to speak to your lawyer in private after you were given a special caution and before you failed or refused to tell the police the fact.

Although not saying something after police have given you a special caution could harm your defence in court, you are not committing an offence by staying silent. 

It is important to remember that police can only give you a special caution if you have a lawyer physically present with you in the police station. If you get legal advice over the telephone, police can’t give you a special caution. For this reason, a lawyer might advise you that it is best for them not to attend the police station with you.

Legal Aid lawyers do not attend stations to advise people under arrest.

Police searches

Police can search you if:

• you are under arrest
  
• police have a warrant to search you
  
• police have a reasonable suspicion that you are carrying:
  
  • stolen or unlawfully obtained property
    
  • illegal drugs
    
  • something that has been or may be used in a serious crime
    
  • knives, weapons or other dangerous items, or
    
  • a laser pointer.
    
• you consent (agree) to the search. 
  

Sometimes police have other powers that will allow them to search you. 

If police want to search you, you should tell police that you do not consent (agree) to the search. If police still want to search you, you should comply with the search (don’t stop or hinder police). If police do have the power to search and you hinder them, you may be committing an offence. If police don’t have the power to search you and you did not consent, you may be able to get any incriminating evidence kept out of court.

Seizure (taking your property)

Police have powers that sometimes lets them take your property, including if:

• police have a warrant
  
• you are in a public place, police can take:
  
  • any property that they believe is stolen or unlawfully obtained
    
  • knives, firearms and anything else that can be used as a weapon
    
  • illegal drugs
    
  • anything that police reasonably suspect may provide evidence of serious offences.
    

If police need your property as evidence in a court case, the item should be returned to you when:

• police no longer need it, or
  
• the court case is over.
  

There are different rules that apply for getting back a knife, animal or dangerous implement. Some items, including illegal items or items you didn’t get legally will not be returned. 

Entry

Police can come into your house if:

• they have a search warrant
  
• there is an emergency, for example someone is injured
  
• police want to arrest or detain someone and they have reasonable grounds to believe that person is on the property
  
• you give them permission to come in.
  

Police directions

Police can give you a ‘move along’ direction, which means you have to leave if you are in a public place, and police believe on reasonable grounds that you are:

• obstructing traffic or another person
  
• harassing or intimidating another person
  
• causing or likely to cause fear to another person
  
• attempting to get illegal drugs
  
• drunk and:
  
  • disorderly 
    
  • likely to cause injury to any other person or damage property, or 
    
  • be a risk to public safety.
    

If police give you a move on direction and you don’t follow it, you could get a fine or be charged with an offence.

I think police acted outside their powers, what can I do?

Depending on your circumstances you might be able to:

• complain to police, the Ombudsman or to the Law Enforcement Conduct Commission (LECC)
  
• get any evidence against you that police didn’t obtain legally to be excluded from court
  
• take legal action against police.
  

If you think police acted outside their powers, you should get legal advice.