How Long can I be Kept in Police Custody?

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Police are not allowed to keep you under arrest without charge indefinitely.

Unless you are suspected of terrorism, they can only keep you under arrest for six hours before they either charge you with an offence or release you from custody, unless an extension is granted by a detention warrant.

A detention warrant can extend the investigation period by another six hours, totalling twelve hours.

It cannot be extended more than once.

However, although the maximum time you can be detained is six hours (unless an extension is granted), it is important to note that there are several times which will not be counted towards the six hour limit.

These periods are called ‘time-outs’ and include:

  • The time it took to get to the station;
  • Any time reasonably spent waiting for police officers or others who need to be present for the investigation because of their particular knowledge or skills;
  • Any time reasonably spent waiting for appropriate facilities to become available;
  • Any time you spend communicating with a friend, relative, interpreter or lawyer on the phone as well as any time spent  waiting for them to arrive;
  • Any time you spend with a friend, relative, interpreter or lawyer once that person arrives
  • The time it took to get medical attention;
  • Any time that is reasonably necessary to organise and perform an identification parade;
  • Time that is needed to rest, take refreshments and access a bathroom or other facilities;
  • The time it takes you to recover from the effects of drugs or alcohol;
  • Any time that it reasonably takes for police to apply for a detention warrant, search warrant or crime warrant that relates to the investigation;
  • The time it takes for charging procedures to be undertaken; and
  • Any time reasonably required to carry out forensic procedures, or to prepare, make or dispose of an order for such a procedure

As you can see, these ‘time-outs’ can significantly increase the amount of time that you actually spend under arrest.

According to the Police Guidelines, police will wait up to two hours for a lawyer or, for certain vulnerable persons, a friend or relative to arrive.

They are not supposed to delay an investigation for longer than two hours waiting for someone to get there.

If you are then charged with an offence and are not granted bail by the police, you will have to stay in custody until you go to court, which is meant to take place ‘as soon as practicable’.

This means that if you are arrested early in the morning, you will normally be taken to court later that day.

However, if you are arrested outside court hours you will need to spend the night in police custody before you are taken to court the next day.

What about terrorism charges?

The situation is different when it comes to those suspected of terrorism.

Under the Terrorism (Police Powers) Act 2002, police can exercise preventative detention, which essentially means that a person can be held even if they have not committed an offence yet, but that it is alleged that they were going to.

A preventative detention order can be made against a person who is thought to be considering:

  • Engaging in a terrorist act;
  • Possessing something that is connected with the preparation or engagement in a terrorist act; or
  • Has done an act in preparation or planning for a terrorist act

A person can be held in preventative detention for a maximum of fourteen days without charge.

A person being kept in preventative detention does not have the same rights to contact others.

In some circumstances, they may contact a family member to let them know where they are and that they are safe.

A person being kept in preventative detention can call a lawyer but only to gain access about their rights when being held in preventative detention and arranging for the lawyer to act for the detained person.

If you or a loved-one is asked to attend a police interview, or is otherwise concerned about being suspected of an offence, make sure you pick up the phone and call an experienced criminal defence lawyer as soon as possible.

A good lawyer will be able to help you through this difficult time and ensure that your rights are protected.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

3 Comments

  1. justin

    I had an aguement with girlfriends mum now police want to I.perceive will I be charged or just an arvo as I am on parole
    The police keep.going to my girlfriends house asking about me I think I will be charged even though it was only verbal
    I.don’t understand why I.have to.make a.statement. can’t they just put an arvo against me without the interview

  2. Tina Jones

    I’m just a concerned mother my son is going on 30 days in holding no charge he’s still there don’t know what or who to ask need help

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