What to expect on arrest

Updated August 2019

It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary any of a number of reasons – these reasons provide wide powers of arrest.

Being arrested means you are required to go with the police. Once arrested, you are not free to go until they release you. Usually police will take you to a police station for holding and processing.

It’s important to note that not all arrests are the same. The police have a large amount of discretion in choosing how to/whether to arrest you and whether to charge you with an offence.

Let friends or family know they can contact the watch house/ police station you are most likely to be taken to in order to confirm your safety/location. Just search for their phone number.

• Moved on and not arrested. 

• Issued an on the spot offence. You may just receive a paper fine, like a speeding ticket, which requires payment within 28 days.

• You may be given a Notice to present at the police station. You will then have to go to the police station before a specified date to be processed further.

• Arrested then released without charge.

• Arrested and taken into custody.

• Charged and given watch house bail, where the police decide to release you on certain conditions.

• Charged and held on remand (without having been found guilty of an offence), where the police hold you in custody until you can be brought before a Magistrates Court to make a bail application.

Being charged means police think you have committed a crime and that they intend to start court proceedings against you. They will either give you a charge sheet or send you a Summons, which is an order telling you when you need to appear in court.

If the police choose to take you into custody, this is the usual process: 

• You may be handcuffed. 

• You may be transported in a police vehicle (unmarked, marked, paddy wagon or a prisoner bus. Males and females may be separated.

• At the arrest site you are likely to be searched. At the watch house, you will have all property confiscated and held by police until you are released. They will detail your property on a receipt and ask you to sign for it. You need to sign the receipt to retrieve your property on release.

• If police ask to go through your phone or your computer, you can refuse consent. They will then need to get a warrant to search this property, but they may seize the items in the meantime. Police can also obtain orders from the court that require you to release to police your security passwords or codes for access to these electronic devices.

• You may be held in a holding cell. You may share the cell with others.

• Even people who have experienced multiple arrests will note that the process changes each time. There are a range of cells you can be held in with varying degrees of comfort or opportunities to socialise. Expect a long and boring wait.

• You can ask for a phone call. The police are only obliged to let you make a phone call prior to interviewing you in relation to an indictable offence. If you have only been charged with minor offences, they may refuse this phone call. 

• You can ask to access the toilet, however, you may not be provided this facility immediately. Privacy can be minimal.

• You will have your photo and fingerprints taken.

• You may be asked to undertake a medical and mental health history assessment. You can choose to refuse. However, it’s worth noting that this assessment and history will shape the way the police process you. For example, if you are diabetic, telling them this will ensure you get insulin etc. 

• You may be asked to undertake an interview. This is a request and is not a requirement.  It is usually suggested that you refuse to undertake the interview. If you would like support to refuse, ask to contact your legal representative or Legal Aid Queensland. 

• CW// transphobic language and police policy: QPS Operational Procedures Manual provides that: “transgender prisoners should be placed in an empty cell, unless an empty cell is not available, in which case transgender persons are to be placed with prisoners who have the same type of genitalia.” See here for more information relevant to the LGBTQIAP+ Brotherboy Sistergirl community.

• The police are required to make a decision as to whether or not to grant bail as soon as reasonably practicable. The courts have been known to make adjustments in sentencing where people have been held for significant lengths of time.

• If granted watch house bail you will be required to sign the bail form. Make sure you are willing to agree with all of the bail conditions. If you do not sign this form, you may be held in police custody for several days before you can go before a Magistrate. See more on bail below.

• You will be required to sign a property receipt form if any of your possessions have been seized by the police. This may include, banners, climbing gear, lock ons, mobile phones, climbing knives, notebooks etc. The police should return most of this to you upon your release, but may hold onto anything they want to use as evidence. Ensure you get a record of anything they want to keep.

For almost all offences, the police may request ‘Identifying Particulars’. These include palm prints, finger prints, handwriting samples, footprints, photographs and measurements. It is an offence not to give the Identifying Particulars requested. You may be required to provide these while you are in custody or you may be issued with a notice by a police officer to report to a police station within 7 days to provide them.

For police to obtain a forensic sample (blood, hair, mouth swabs etc) they require your consent or a court order. As a general rule, you should refuse consent to providing a forensic sample, and ask to speak with a lawyer.

Bail is essentially the basis on which a person who has been charged with a criminal offence may be released back into the community while awaiting their court hearing. It sometimes involves a payment of money being lodged with the court.

For most offences, except the most serious, bail can be granted by the police. At the watch house, the police officer responsible is required to consider whether bail should be granted.

There is no automatic right to bail. To refuse bail the police generally must show that there is an unacceptable risk that, if released, you would:

• Fail to appear (at your court date) and surrender into custody;

• Commit an offence; or

• Endanger the safety or welfare of the alleged victim; or

• Interfere with a witness or otherwise obstruct the course of justice; or

• Be a danger to your self (e.g. self-harm or retaliation).

For activists, bail is more commonly granted on the person’s promise (or undertaking) to attend at court, and sometimes a number of other conditions. Often there is an undertaking not to take part in similar actions or attend certain places (eg a mine site, or headquarters of a company). 

Some activists have been given excessive and/or onerous conditions including not entering the state of Queensland or attending any protests. It is possible to dispute your bail conditions after you have been released. Visit our referrals page to arrange legal advice.

It may also be possible to discuss your bail conditions with the police officer responsible at the time of your release, particularly if they are too onerous for you to comply with. This has at times ensured that others involved in the arrests have avoided harsh conditions.

Conditions are imposed to ensure you:

• will appear in court

• won’t commit an offence while on bail

• won’t endanger the safety or welfare of others while on bail

• won’t interfere with witnesses or obstruct the course of justice (whether in relation to your own case or someone else’s).

If your conditions do not relate to these reasons that could justify a challenge.

Bail may be refused if you have outstanding court matters or fines, a history of failing to appear, or if your case is very serious. The rules on being granted bail are set out in the Bail Act 1980.