LCP - Essay - Explain how police must apply LEPRA if they intend to question, search, or arrest PDF

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Explain how police must apply LEPRA if they intend to question, search, or arrest or caution a suspect. ...

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Police deal with crime on a daily basis, both indictable and summary offences where their power to enforce the law is in practice, with the ability to use discretion, allowing them to access alternatives to arrest which acts as a deterrent for first time offenders. The main act that regulates the limits of powers used by police is the Law enforcement (powers and responsibilities) act 2002. This sets out the main principles assisted with the code of conduct (NSW Police Department 1998) which an officer is due to follow. Another aspect that relates to the functioning of the legal system is Dicey’s rule of law (Federal court of Australia 2018), a universal philosophy which is the assessment of equality for everyone.

Larceny is unlawfully taking someone's property. There are six factors which the judicial discretion use to satisfy the offence of larceny which outlines the proofs (Judicial Commission of NSW 2005). These are the common law principles identified as mens rea and actus reus. The incidents that have been identified in the case study are acts of larceny. Incident one can be referred to as a crime as the proofs of larceny are present, where the mother did not pay for the fruits, her toddler ate. These fruits belonged to the supermarket and not to the accused which satisfies the first proof of being taken without consent and dishonestly, depriving the owners of it. These proofs that have been applied can sustain a conviction against the women. The other incidents identified also include the six proofs of larceny and satisfies the case to prosecute, whereas the woman who reads magazines does act, however not knowing that she is committing an offence, referring to the criminal mind (Weinberg 1977), where she did not pre plan this act to gain knowledge on the latest gossips. All issues identified in the case study can be referred to as acts of larceny as they all consist a number of proofs which the judicial discretion utilise to convict offenders.

NSW police operate under the lepra act (Law Enforcement (powers and responsibilities) Act 2002 ) which is the main legislation that displays their authorities, yet setting limits on certain powers to provide safeguards for the society. Where a crime of larceny has been committed, the police can exercise their powers to question, search, caution or arrest them. From the first stage of identifying the offender, the police have the power to ask for their identity in order to further continue with the case or direct them to depart the premises. During this assessment of disclosing the identity, if they fail, under section 563 the officer will lay two penalty points on their record. Where the officer believes or is inclined to, that the suspect is in control of anything that has been illegally obtained, they have the rights to stop, search and detain without a warrant, further police may seize and detain all or parts of the item(s) that the police suspects on reasonable grounds have been stolen or unlawfully obtained (Judicial Commission of NSW 2005). The power to search is further assisted by section 21 which on reasonable grounds, allows the search of concealed items in the suspect's mouth or hair requiring them to contribute in various ways enabling the search. Where the suspect declines cooperation, an officer has the right to use force. Instances where police are encountered with larceny cases, they do not need a warrant to arrest offenders, who have committed or are going to commit an offence against the society. LEPRA act 2002 section 99 (1) (b) provides nine essential criteria where one has to be established in order to justify an arrest. Offences that can be committed during the presence of police are the suspect attempting to flee, harassment of others, threats towards others, to prevent these offences the police have the right to arrest to promote safety in society. An officer may discontinue an arrest at any moment if it is more appropriate proceed with an alternative, including issuing a warning or caution, penalty notice or altering the process where a child is present to correspond with the young offenders act 1997. As well as outlining police powers, the LEPRA act also provides safeguards for the society and its offenders. Safeguards are presented to suspects in order to promote their rights, these include the disclosure of identification of that officer, the reason for the exercise of power, the place of their duty. By providing these to the suspects, it balances the rights of suspects against the powers of the police, both identified and justified under the LEPRA act 2002. Where the officer fails to comply with these and not provide certain details affects the validity of the power exercised. Considerations for the suspects' rights are reflected where a suspect does

not commit an offence if they do not respond to officers to fail to provide their details. These suggest the complexity of the system with attempts to balance the rights between the offenders and the enforcing officers.

There are many alternatives to arrest (Robinson, C.D 1965) which a majority of police officers use however some argue that using discretion during taking an action will promote inconsistencies in societies. Alternatives to arrest include field of can which is a court attendance notice, and a future can that is a court attendance notice which will be posted. These alternatives are both the same, the offender is due to attend a court on a later date in front of a judge or magistrate to determine further charges or have an acquittal. These alternatives are suitable for mostly traffic offences and a number of minor criminal offences including larceny and speeding. Another alternative is issuing a fine, this can be a large sum or opposite depending on the offence. This consists of the offender receiving a notice to pay a sum before a date to avoid a fee and criminal charges laid against them. Giving a warning or caution has been used as an alternative for many years by the police, especially when dealing with young offenders and first-time offenders. This can be formal which goes onto your record, or informal which is an oral speech by the officer and does not count towards your criminal record if established previously. By considering these alternatives when dealing with larceny or any other summary offences they are promoting dicey’s rule of law where no one is subject to punishment unless a definite breach of law determined by the courts, when officers do not arrest an offender and act as a deterrent for their behaviour by preventing strict actions, they are promoting the principle that depicts arrest as the last resort. Alternatives act as a sense of rehabilitation for some, including first-time offenders and young offenders, by not introducing them into the criminal database. Hence alternatives to arrest are important to consider as it can determine the future actions of some offenders, an arrest will most likely provoke a sense of recidivism. As a police officer, I would consider all the alternatives I could access during the circumstances present with adequate reasoning for the selection. During a case of larceny presented, where fruits are taken, magazines are read, almonds are consumed, I would not consider arrest at all as these are minor offences where they are all accountable for their actions and do not require strict actions taken against.

Therefore, I would be inclined to produce an infringement notice for four of the incidents that were presented beside the first one where the toddler was present, I would close the case with a warning to provide safeguards for the toddler where the mother could pose a risk towards to release her anger. I will proceed with an informal caution to allow the family to continue with their lives, where the mother could encounter difficulties at work or getting work if she holds a caution on her record which can affect the child in many ways. Despite issuing an informal caution, I have adapted to Dicey’s rule of law, that states everyone is equal, where I have not inhibited their future enlightenment. The lepra act states nine criteria to arrest someone, which were not present therefore I would proceed with other alternatives such as the caution and infringement notice keeping the lepra act under consideration using my discretion, alternatives are important as an arrest is the least preferred action. With circumstances presented, alternatives that were open to me including field of can, post field of can would not be suitable for the situations presented in the case study as these were minor offences for which, there is no need to refer them to the court, where these incidents happen at every store on a regular basis as I have experienced. My selection of the actions that I will take in these situations are most suitable for the situation which distinguishes it from other alternatives which could have worsened the situation or be void. By committing to these actions, I have abided many principles including Dicey’s rule of law, Lepra act, code of conduct and provided safeguards for the offenders. Hence these actions that I would take evaluates its significance towards the model of policing present in NSW. Where I take strict action and arrest all offenders presented in the case study will reflect zero tolerance policing which has been no longer exercised and promoted, therefore by acting lenient yet diverting offenders through minimal punishments will promote the current model of community policing. Further, I will direct them to leave, after providing my identity reflecting safeguards outlined in the LEPRA act.

It is important for officers to consider all alternatives open to them to confirm the most suitable one, to implement it reflecting the principles outlined in the Lepra act and the rule of law along with other principles to maintain fair and equal treatment for all.

Reference

Federal court of Australia 2018, The rule of law is not a law of rules , Perth. Judicial Commission of NSW 2005, Larceny , Law Enforcement (powers and responsibilities) Act 2002  2002,. NSW Police Department 1998, Code of Practice CRIME (Custody, Rights, Investigation, Management and Evidence) , .. Punter, Helen, 2011. Move-on powers: new paradigms of public order policing in Queensland. (New Paradigms in Policing in Australia). Criminal Law Journal, 35(6), pp.386–397. Robinson, C.D., 1965. Alternatives to Arrest of Lesser Offenders. Crime & Delinquency, 11(1), pp.8–21. Sydney morning herald 2010, It's not yours until you pay , viewed May 28 2019, . Weinberg, M.S. & Williams, C. R., 1977. The Australian law of theft, Sydney: Law Book Co....