Balancing individual freedom and safety
Individual freedom is a paramount value in our liberal society. Of course, individual safety is equally important. Tension arises because there are certain situations where the liberty of one individual is a threat to the safety of others. When such a tension arises it must be navigated with the utmost care; after all, fundamental rights are at stake (see Article 9 of the ICCPR).
This tension arises in practice every time police arrest or detain an individual. In theory, police action is taken because the balance between liberty and security has tipped so that community safety outweighs the demands of individual freedom. This calculation must be satisfied every time police action is taken.
Of course, such a balancing act cannot and should not be made in the heat of the moment, subject to the whims of the individual police officer. In order to avoid such arbitrariness, the rules establishing police powers have been strictly defined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
The role of the judicial system
This is where the judicial system enters the picture. Solicitors ensure that the provisions of LEPRA are rigorously upheld, by bringing civil suits against police whenever the proper boundaries of power have been overstepped. Where police unnecessarily impinge on individual liberty, the law must restore the balance.
In the past few weeks, O’Brien Solicitors has successfully closed two unlawful arrest cases. In the first, we were successful in trial against police officers who had twice arrested our client wrongfully in her own home (in one of the instances dragging her from the bath, naked, into a room full of men). In the other case, we settled a claim against a police officer who had publicly and humiliatingly arrested our client on the grounds of a single, unreliable accusation against him.
O’Brien Solicitors is the leading expert on unlawful arrest, false imprisonment, malicious prosecution, police assault and other related claims. Our principal, Peter O’Brien, has just finished co-writing a book on the subject: ‘Intentional Tort Litigation in Australia’ can be pre-ordered here.