This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.
Arrest. The last resort.
Police should be using their powers of arrest as a last resort. If the power of arrest is used inappropriately for a minor offence, and the offender reacts by committing an offence such as resist arrest /assault police, evidence of these latter offences may be excluded in the exercise of the court’s discretion.
It is an offence to resist arrest. Active resistance is required for a charge of resisting arrest to be laid. Police may arrest you if they reasonably believe you have committed an offence, even if, in fact, you are completely innocent. If you resist arrest, you are committing an offence with which you may be charged, even if the police do not charge you with any other offence.
It is interesting to note that security guards have no more power than any other citizen to arrest. The police must not arrest unless the purpose is to ensure an appearance before Court, to prevent crime, to preserve evidence, or for someone’s safety. If an officer does not consider those reasons, or unreasonably considers them, the arrest could be unlawful. Reasonable suspicion is not enough to found a lawful arrest.
Do you want to give evidence?
In a criminal hearing, the prosecution presents their case to the Court. Typically, evidence will be called from the officer in charge, and any witnesses including the victim. At the conclusion of the prosecution’s case, it is then the defence case. The main question in the defence Solicitor’s mind is whether or not to call the accused to give evidence.
Every accused person has a right to silence. When an accused person gives evidence, it can be a pivotal point in a criminal hearing, and therefore the decision is critical.
The obvious advantage is that the Magistrate gets to hear sworn evidence from your client. The disadvantage is that your client will be put under cross examination. Many clients do not cope well under the stress of cross examination.
A client, who may be not guilty of any offence, can come across as a nervous mess which could be observed as having something to hide. In situations such as this, it would be better for the client to exercise their right to silence.
Each case is different. Sometimes a decision can’t be made until the prosecution case has been finished, therefore preparation is critical.