Detained vs Arrested

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There are some times where you’re not under arrest, but you’re also not free to walk away.

This usually happens when police are exercising a power before they decide whether to arrest you.


For example:
  • if police suspect that you are carrying a weapon, they can search you. And they have the power to ‘detain’ you until the search is finished.

    So, while they are doing the search, you’re not under arrest – but you’re not free to leave. If they don’t find anything and you’re not arrested, then you can walk away.

  • police have the power to pull your car over to do a random breath test. And it is an offence to refuse to do a breath test.

    So, while they are doing the test, you’re not under arrest – but you’re not free to drive away. If your test is clear and you’re not arrested, you can drive away.

  • police can ask for your name and address if they believe you have information about an indictable offence being committed. And it is an offence to refuse to give your name and address.

    So, if they ask you for your name and address, you are not under arrest but you’re not free to leave. Once you’ve given your name and address and you’re not arrested, then you can walk away.

 

You can always ask police: “am I under arrest?” and “am I free to leave?”

In addition to the situations above, police often engage in psychological detention. 

Psychological detention is when you aren’t legally required to comply with police, but you feel like you have no choice but to comply.

Some examples are when police make you feel like:

  • you aren’t free to leave, when you are;
  • if you don’t cooperate they will be suspicious of you; or
  • they will arrest you if you don’t cooperate.

If you are feeling confused or unsure, ask the police: “am I under arrest?” and “am I free to leave?”

A common situation for activists, is where police say that you are under suspicion for an offence and that you aren’t free to leave until they say so.

Police may also say that you are not under arrest, but that they will arrest you if you try to leave.

If this happens to you, you will need to think carefully and make the best decision for you at that time. You might decide to:

  • stay with the police to avoid being arrested and touched by police. You might get arrested anyway;
  • verbally confront police about their powers and your rights. The police may get tired of you and let you leave, or the police may decide to arrest you.
  • attempt to walk away. The police may do nothing, or the police may arrest you.

No matter what you decide, you should try and get the attention of someone from your group so they can witness what is happening and take down the badge numbers of police involved.

If you think police breached your rights, write down what happened and speak to a lawyer as soon as possible.

If you were injured by police, see a doctor immediately and take photos of your injuries.

Not being arrested but not being free to leave is sometimes called being ‘detained’. This is often the language used in legislation.

However, generally in the media or when talking with friends and family, being ‘detained’ has the same meaning as being ‘arrested’.

The language can be confusing.

Powers mentioned

Power to search you for suspicion of weapons: Control of Weapons Act s 10(1).

Power to detain you while searching for suspicion of weapons: Control of Weapons Act s 10(6).

Power to do random breath test: Road Safety Act s 53(1).

Offence to refuse a breath test: Road Safety Act s 49(1)(c).

Power to request name and address regarding information about an indictable offence: Crimes Act s 456AA(1)(b).

Power to request name and address if police believe you have committed an offence: Crimes Act s 456AA(1)(a).

Offence to refuse to give name and address: Crimes Act s 456AA(3).

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