Handcuffing A Person Who Is Under Arrest – The Law in NSW
Handcuffing a person who is under arrest, the police have a wide range of powers when placing a person under arrest – while in turn, the person being placed under arrest have many of their personal rights restricted, most obviously, their right to move freely. One of the clear signs that a police officer is placing someone under arrest is the slapping of handcuffs on the alleged criminal: but is this necessary? Are police officers required to put handcuffs on every person they place under arrest? Well, there are actually a number of considerations a police officer must take into account when deciding whether or not to put handcuffs on a person, but it is not an actual requirement to handcuff every person.
There is no need to handcuff every person under arrest
There is no general rule or requirement that a police officer must handcuff a person who is being arrested. Furthermore, there is also no requirement for an officer to handcuff a person who is being transported from a goal, to the courthouse.
When deciding on whether a person should be handcuffed, case law has stated that the choice to handcuff a person is dependent on the surrounding circumstances, and that officers should always take the proper precautions to ensure the safety of themselves, and the public. Although, circumstances in which handcuffing may be deemed to be necessary is to stop the person from committing a further offence, or preventing the person from escaping police custody.
Perhaps the most revealing aspect of the absence of a mandatory rule to handcuff a person, relates to the fact that there is no general rule that an individual conveyed from a police station to a courthouse, also must be handcuffed, as Williams J noted in Leigh v Cole. His Honour remarked that handcuffing every person attending court, “seems to me to be an unjustifiable view of the law, and one which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publically through the streets.”
However, a judge who is presiding over a proceeding can order a person to be handcuffed if he or she deems the action necessary due to the demeanour or mood of the person put in front of him or her, because ultimately, it is the judge who is in charge of security within the courtroom.
Can an arrest be invalid due to unreasonable handcuffing?
In Kumar v Minister for Immigration, Lockhart J did feel that the handcuffing of the applicant was unreasonable. However, it still did not “vitiate the arrest of the applicant who was lawfully arrested, though not lawfully handcuffed.”