THAT'S THE LAW: Joe stands up for civil rights

Joe Fahey is a solicitor from Grafton who has developed a niche legal practice in the area of wrongful arrest and false imprisonment.

He even has his own website – you might guess how to find it. It didn’t immediately sound to me like a great career move to be picking fights with the Police, but, as he explains, this is an area of the law in which people’s rights are commonly infringed.

Fahey describes the basic legal principles of wrongful arrest and false imprisonment. “A person’s liberty is one of the most basic and most important civil rights and imprisoning someone is the most severe form of punishment available to authorities to punish people.”

“Imprisoning someone is not something that should be done lightly and there are laws about when and in what circumstances a person can be imprisoned. If someone is wrongfully arrested and placed in custody then that person has a claim against the person who imprisons them. In NSW if that imprisonment is undertaken by a police officer then the State is usually responsible for meeting that claim.”

Fahey will have nothing of the suggestion that the Police should be entitled to arrest a person if they have committed an offence.

 “A lot of people mistakenly think that if you do something wrong then it automatically follows that you should be arrested. I say again that a person’s liberty is their fundamental right.”

The power of arrest flows from the common law, which is to say, law developed by the Courts.

More recently governments have moved to codify Police powers and responsibilities, including the power of arrest. Fahey explains: “Most of the Police powers of arrest are set out in an Act known as Law Enforcement (Powers and Responsibilities) Act 2002 – commonly referred to as LEPRA. This Act sets out the limited circumstances in which Police Officers are lawfully allowed to arrest citizens.

“In December 2013 the O’Farrell Government amended the Act. The wording was changed but if anything it has created greater uncertainty about when a police officer can arrest someone. By and large the circumstances have not changed and it is arguable that the test a Police Officer must now assess before arresting is tougher than before. If anything it has made the job of a Police Officer even more difficult.”

Fahey has had an astonishing number of clients who have been unlawfully arrested. 

“The situations are many and varied. I have had clients attend the Police station at the request of the Police and being arrested when they got there. Wrongful arrest.

“A person being arrested to have an AVO served on them. Wrongful arrest. 

“Many clients of mine have been arrested for a minor offence when a Court attendance notice would have been sufficient. All cases of wrongful arrest.

“When police use excessive force in arresting a person i.e grabbing a person and putting them in handcuffs when there was no need as the person was being cooperative.  Again this is wrongful arrest. I had one client who was arrested and then released without bail conditions or without even being charged.”

One aspect of this area of the law that is particularly interesting is that even if someone has committed an offence they can still be unlawfully arrested.

 As Fahey says, “Strangely enough an innocent person can be lawfully arrested and guilty people can be wrongfully arrested – that point is often lost on some people.”

Damages are available to any person who can prove they have been unlawfully arrested. Fahey sets out the range of damages that Courts usually award.

“Courts take the deprivation of someone’s liberty very seriously. The likely range of damages for an unlawful arrest is $10,000 to $100,000.

“The amount awarded will obviously depend on the circumstances such as how unreasonable the arrest was, length of time in custody, whether the person arrested was a vulnerable person such as a child or a person with a disability.

“I had a recent case where a fellow questioned some police about some rough handling of his brother and for his enquiry he was showered with capsicum spray and taken to the police station for about 20 minutes to allow the Ambulance to treat him. He was awarded $68,000.”

Toby Tancred, Whiteley Ironside & Shillington


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