Monday, 24 May 2021
The Law Society’s Criminal Law Committee has prepared this fact sheet to give you some guidance on what happens when a teenager is suspected of committing an offence, or is arrested by the police.
What happens if the police suspect that my child has committed an offence?
The police may ask you or your child to provide a name and address. The police must tell you why they are asking for this information and you must provide this information accurately. There is no obligation to answer any other questions.
You may ask for the police officer’s name and the address of his or her place of duty. If the police officer is not in uniform, you may ask for proof that he or she is a police officer.
Your child may be asked to attend a police station. Your child is not required to go unless he or she is under arrest or protective custody (i.e. for the child’s protection).
Your child can be given a written “summon” to appear in court. As a last resort, when issuing a summon is not practicable, the police may arrest your child. If your child is being arrested, the police must inform your child what offence he or she is being arrested for. The police must then promptly notify the parents or guardian of the young person of the arrest.
Can force be used in making the arrest?
The police may use reasonable force in making arrests. Do not interfere with an arrest as it is an offence and can cause you physical harm. Your child has the right to be treated with dignity and respect even during an arrest. You may seek legal advice if you think excessive force was used.
Can the police conduct searches?
The police have the power to conduct searches of arrested persons and their houses. Do not interfere with police searches as it may cause you physical harm.
For young persons, a strip search may only be conducted:
- if the young person has been arrested and charged (or there is a court order to that effect)
- in the presence of a parent or guardian, or an adult chosen by the young person
- by a police officer who is the same sex as the young person
- at a police station and in a private area.
What happens at police interviews?
Your child may be asked to attend an interview at the police station. They will be asked about their previous actions and whereabouts as part of an investigation. The investigating officer must frame the questions in a way that your child can understand given their age, maturity and developmental capacity.
Children cannot be interviewed alone
Before interviewing a young person, the police must try to contact a parent, guardian, family member, lawyer, or an adult chosen by the young person and allow that person to be present at the interview.
If the young person identifies as a person of Aboriginal or Torres Strait Islander descent, the police must contact a representative from an Aboriginal legal assistance organisation (such as the Aboriginal Legal Service NSW/ACT Ltd).
If none of the above-mentioned people are available, another independent adult (not a police officer) must be present at the interview. Young people cannot be interviewed alone unless in an emergency.
Your child will also be allowed the opportunity to contact a lawyer. You can contact ACT Legal Aid’s Youth Justice Centre or the Aboriginal Legal Service (if appropriate) for assistance.
Right to remain silent
Before questioning, the police officer must caution your child that they do not have to say or do anything, and that anything they do say or do may be used in evidence. Your child does not have to answer any questions other than giving their name and address.
Signing records of interview
The police may ask your child to sign a “record of interview”, which is a transcript of the interview. Do not let your child sign the document if you disagree with what has been recorded. Seek legal advice where appropriate.
Can the police take photographs, fingerprints, or blood samples?
The police can only take photographs, fingerprints, blood samples, and other identification materials from your child if there is a court order to that effect. A parent or another adult must be present in the collection of identification materials.
Does my child have to participate in an identification parade?
Both the young person and a parent or guardian of the young person must agree to the identification parade, and the parade must be held in the presence of the parent or guardian. There is no obligation to participate in an identification parade unless there is a court order to that effect (the court can only make this order if either the parent or the young person agrees).
How long can they be kept at the police station?
Children should only be detained for the shortest possible length of time. In most cases, persons under 18 years of age can only be kept at the police station for a period of no more than 2 hours.
Will my child be charged?
If the offence is not serious, your child may receive a warning or caution, which will not form a part of their criminal record.
The police may charge your child. In considering whether to press charges, the police must consider the child’s level of maturity and mental capacity. If the child is charged, parents or guardians must be informed.
The police generally cannot charge children and young people at the police station. In most cases, the police will issue a summon to require your child to appear in court.
If they are charged, can they get bail?
If your child is charged, they may be:
- released without bail,
- released on bail (conditions may apply), or
- refused bail.
The best interests of the child will be considered by the court in granting bail. If your child is refused bail, the child must be taken before a court as soon as possible.
What happens if my child is convicted?
If your child is convicted, in less serious cases, the court may order for:
- The charges to be dismissed and for no conviction to be recorded (despite findings of guilt),
- The offender to be on good behaviour for a specified period of time (supervision and probation conditions may apply),
- The payment of a fine,
- The offender to return stolen goods or pay compensation,
- Drivers licence disqualification (can be imposed for offences relating to traffic and vehicles), or
- The offender to participate in a drug and alcohol treatment program.
In more serious cases, the court may order for:
- The prohibition of the offender’s association with a person or being in a place/area (such an order must not affect the young person’s access to education, public transport, or accommodation),
- The young offender to live at a different place or with another guardian, or
- The offender to carry out the sentence in the community under strict conditions.
The court can impose a sentence of imprisonment as a last resort and for the shortest appropriate term. Young offenders cannot be imprisoned for life.
Will the conviction stay on their criminal record forever?
Your child’s conviction can become ‘spent’, which means it will disappear from his or her record, five years from the date they complete the imprisonment sentence, or from the date they are convicted. Note that convictions of serious offences (such as sexual assault) will not automatically become ‘spent’.
Who can I call for help?
- Legal Aid: Youth Law Centre on (02) 6173 5410
- ACT Law Society (you will be referred to a relevant law firm) on 6274 0300
- Aboriginal Legal Service on 1800 765 767