The Greatest Miscarriage of Justice - Arrest

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Tuesday, 7 April 2009

When was the last time you arrested someone? Assuming you are not a police officer the answer is probably never. But perhaps a better question is when was the last time you thought about arresting someone? Or even better yet did you know that under section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 that you, as a citizen, have the power to arrest people? While it’s not something I encourage, because if you’re wrong you might end up being sued for false imprisonment, the fact remains that any person in New South Wales may arrest any other person, without a warrant, so long as that other person is either in the act of committing an offence or has just committed an offence.

Of course a police officer not only has this power to make a ‘citizen’s arrest’, but is also given the power to arrest someone they suspect on reasonable grounds has committed an offence (section 99 of the same Act), and further powers to arrest with a warrant. But the first thing you should do if you are ever unlucky enough to hear those fateful words “You are under arrest” from anyone (police or otherwise), is ask, “What for?”. Without a valid charge, court attendance notice, or indictment of some type, it is almost certain that the arrest will be illegal.

Notwithstanding the 2000 years of separation, it is exactly this question that could have quite properly been asked by Jesus when he was confronted by Judas and arrested by the ‘crowd’ (Matthew 26:46-56). There was no valid indictment to base an arrest, there was no written warrant to affect his seizure, and in fact there was no accusation lodged against Jesus until he was brought before Caiaphas, the high priest. Far from being in the act of committing an offence or being suspected on reasonable grounds of having committed an offence, it appears from the gospel accounts that Jesus was off praying to his Father, or talking to himself depending on your religious persuasion – either way it is hardly the foundation for a valid arrest. In fact these days most of the evidence obtained after such blatant disregard for the laws of criminal procedure would be excluded from the court under section 138 of the Evidence Act, as it would quite obviously be improperly or illegally obtained evidence, and to allow it in might encourage further such behaviour.

The first departure of proper criminal procedure.


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