File(s) under permanent embargo

Excessive force used in making an arrest: does it make the arrest ipso facto unlawful?

journal contribution
posted on 2004-01-01, 00:00 authored by Dan MeagherDan Meagher
The purpose of this article is to consider whether or not the use of excessive force in effecting an arrest makes the arrest ipso facto unlawful at common law. With a dearth of appellate court authority on point in either Australia or the United Kingdom, the question is presently open. It is my argument that as force is not a minimum condition of an arrest, its excessive use will not, therefore, make unlawful an otherwise lawful arrest. This conclusion is a matter of some import. It exposes an arrester to civil and possibly even criminal liability for assault but not to an action for false imprisonment. It may also have practical repercussions for the possible discretionary exclusion of evidence on public policy grounds. In theory, it should not matter whether excessive force made an arrest unlawful or not, for the public policy discretion permits a judge to exclude evidence illegally or improperly obtained. But common sense suggests that a judge may not be so likely to exclude evidence when the relevant conduct amounts only to police impropriety not illegality.

History

Journal

Criminal law journal

Volume

28

Issue

4

Pagination

237 - 242

Publisher

Lawbook Co.

Location

Sydney, N.S.W.

ISSN

0314-1160

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2004, Lawbook Co.

Usage metrics

Categories

Keywords

Exports