Arresting "Arrest": Pathways Through the Morass

Abstract

In seeking the pathways to ascertain what ought to be viewed as a "lawful" arrest in instances where a warrant has not been issued, an evaluation will be made first, of the policy factors that may have influenced the classification of offences as "arrestable" (ie, non-warrant offences) and "non-arrestable" offences in the Criminal Code of Western Australia. Thereafter, in the light of the approaches adopted by the courts in identifying situations of restraint as amounting to arrest, an analysis will be offered of the significance of the classification of offences as "arrestable" and "non-arrestable" in the interpretation of the legislatively prescribed variables that make an arrest "lawful". In doing so, an effort will also be made to explain the impact of the policies that may have influenced the categorisation of offences as "arrestable" and "non-arrestable" on the rules evolved by the courts in regard to pre-arrest and post-arrest restraint. It is only then one can grasp the urgent need for consistent cohesive principles to accomplish specific objects through the exercise of arrest powers, and focus on areas of existing pre and post-arrest laws that may require modification. Such an approach may also highlight to some extent the need for caution in adopting the recommendations of the WALRC in regard to the amendment of the prevailing arrest provisions in the Criminal Code and the Police Act of Western Australia.