“I am from Canada. I was just wondering if your DVD’s contents and teachings for police encounters and rights relate to Canada’s laws as well.” – Yannik
“My question is if you know of anything that you have used in your videos that would be helpful for somebody like me to be able to say to a police officer in England? As we don’t have ‘The Bill Of Rights,’ I’m not too sure if we can use anything that was mentioned in any of the video.” – David
Many Flex Your Rights fans outside the United States ask questions like those above. They wonder whether guidelines developed in an American legal context are applicable to police encounters in other English-speaking countries.
The good news is that you can use many of the lessons from Flex Your Rights in the United Kingdom, Canada, Australia and other Commonwealth countries.
It’s true that Flex is an American organization that draws on the U.S. Constitution and Bill of Rights, along with legal precedent from U.S. courts and some state laws. However, U.S. law is derived from English common law. As such, Canadian, Australian and U.K. criminal procedural laws are strikingly similar to those in the U.S.
In addition, many of the most important legal traditions – such as presumption of innocence, freedom to travel, and the general right to privacy – are not mentioned in the Bill of Rights at all but have been accepted by courts all over the world as essential rights of citizens. Finally, the English common law tradition has generally held that even rights specifically guaranteed by law have not been “given” to you by the government. Instead, they are natural rights of citizens, which a government can protect but not grant or take away.
In practice, you want to be sure of the laws and customs in your own nation – and even within your own county or province. Below you will find a discussion of resources that can help you in police encounters in Commonwealth countries. But the strategies and tactics laid out in BUSTED: The Citizen’s Guide to Surviving Police Encounters and 10 Rules for Dealing with Police will still help you get the best possible outcome of any encounter with the law.
It’s useful to consult the Police and Criminal Evidence (PACE) Act page on the Home Office website. This resource will help you understand what restrictions apply to officers in conducting searches and investigation.
As is the case in the U.S., police must have a legitimate reason to conduct a search of you or your vehicle. PACE requires that a police officer have reasonable grounds to suspect that you are in possession a prohibited or stolen article, a weapon (which can include prohibited fireworks, blades, sharp instruments or items modified as offensive weapons) or a controlled (illegal) drug.
Under U.K. anti-terrorism laws, police can stop and search any person they “reasonably believe” to be a terrorist. Under the law, police may detain a suspect in order to conduct a search of the person and his or her vehicle.
Consenting to a search
British police were given wide search powers under the 2000 Terrorism Act’s Section 44. Although these powers were overturned by a court in 2010, police still enjoy some discretion in searching citizens. However, nothing in the Terrorism Act requires you to comply with searches any further than you are required to by circumstances.
So it is still vitally important, to any future defense you may need to mount and to any harassment claims you may wish to file, that you do not consent to a search.
Remember that your refusal of a search does not mean that the search won’t take place. If the cops have reasonable suspicion, they will conduct a search. But the 2000 Act makes clear that such suspicion must be based on objective facts or information. Cops cannot justify a stop and search only on the basis of “personal factors” such as race, age, appearance, prior convictions, or generalizations about groups or religions. However, if you consent to a search, you have effectively waived any future right to challenge a search on these or other grounds, or to seek compensation if you feel you were mistreated.
Searches of your home
Reading through Code B of PACE is the best way to understand your rights in the event of a search of your home. As in the case of a warrantless personal or vehicle search, the police may seek your consent for a search, and they may try to trick you into saying yes.
Note that Code B requires that the officer seeking your consent state the purpose of the proposed search, inform you that you are not obliged to consent, and make clear that anything seized may be used as evidence. For the search to be lawful, you must consent to the search in writing. If you are a renter the police should not search your property solely on the basis of your landlord’s consent unless the search is urgent and you’re not at home.
Filming and photographing police
The London Mayor’s Office for Policing provides a handy reference page on your rights to photograph police, as well as cops’ authority to search video and photographic records in your phone or camera. Be sure to read this information carefully to understand your rights to record police, as well as implications of the Terrorism Act.
The bottom line is that you do have the right to film or photograph police activities, incidents, and public spaces. Police have no power to prevent you from doing that.
However, as is the case in the United States, police might, out of ignorance or deceptiveness, try to convince you otherwise. Here is a useful video about filming police, with real-life examples of citizens asserting their right to film in the U.K.
Citizens’ rights in Canada are extremely close to those in the United States, and many are encoded in the Canadian Charter of Rights and Freedoms of 1982. So we’ll focus on two areas of potential confusion.
Right to remain silent
The right against self-incrimination is fully accepted in Canadian law and included in the constitution. However, a 2007 decision by the Supreme Court of Canada threw some doubt on whether this right was absolute.
In that case [pdf], a defendant in a second-degree murder case invoked his right against self-incrimination, but finally made a confession after police interrogated him 18 times. The Canadian high court threw out his claim that the repeated questioning violated his rights. But while the case raised concerns about whether Canadians have an absolute right to remain silent, this right has been invoked successfully many time since. The lesson seems to be that you do have a right to remain silent, but you must strongly assert it even if the cops try to get you to waive it.
Filming and photographing police
The right to photograph and video police exists in Canada just as it does in the United States and United Kingdom. However, Canadian privacy laws tend to be more restrictive than those in the U.S. So if you are recording audio as well as video, you need to be aware of local laws regarding recording of private conversations. In general, events in public spaces are not considered private conversations and you are free to record them.
Australia and New Zealand
As with the U.S. and other Commonwealth nations, Australia and New Zealand offer the general panoply of rights to citizens. However, there has been a recent move in New South Wales to remove the protection against an “adverse inference” – the tradition that judges and juries should not presume that you’re hiding something just because you choose not to speak with police or consent to a search.
A more severe modification to the right to silence has been under consideration for some years in New Zealand. As in the case of Australia, politicians have attempted to justify the change under the claim of fighting gang violence. However, the New Zealand bill appears to have stalled out.
While these efforts are disturbing, remember that the laws around consent to search, photographing of police, and other essential rights are very close to the laws in other countries bound by the common law tradition.
Specifics of law and jurisprudence vary from country to country, and you should familiarize yourself with your local laws to the greatest extent possible. However, there are three important points to remember.
First, protection of the rights of the individual against the state was a principal of English common law even before the founding of the United States, and it continues to underlie the legal systems in English-speaking countries. Second, respect for the rights and privileges of citizens is not just a human rights issue; it’s the foundation of good, effective police work. Third, you can’t depend on law enforcement to inform you of your rights. You must flex your rights yourself for them to apply!
Whatever your circumstances, by being friendly and firm during police encounters, you will increase your chances of a successful outcome and reduce the likelihood of making your situation worse. Wherever you live, BUSTED and 10 Rules will guide you toward a more successful resolution. Know where you stand, and remember the basics of dealing with police:
1. Don’t get angry. Always be calm and cool.
2. Don’t tell them that you know your rights.
3. Don’t get tricked by threats. Cops can lie.
4. Don’t agree to a search. Ever.
5. Don’t just wait. Ask: “Am I free to go?”
6. Don’t do shady stuff in public.
7. Don’t admit anything. Remain silent instead.
9. Don’t let them in without a warrant.
10. Don’t panic. Challenge misconduct in court.