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In this guide
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
What happens in the first hours after an arrest shapes the entire case — most convictions are built on what the arrested person said, signed or consented to before any lawyer arrived. The Constitution arms you comprehensively; almost nobody uses it. Memorise this guide before you need it, for yourself and the people you love.
Your Section 35 rights — the complete list
On arrest: the right to remain silent, to be informed of that right and of the consequences of speaking, not to be compelled to any confession or admission, to be brought to court within 48 hours, to be released if the interests of justice permit, and to consult a legal practitioner of your choice (or a state-funded one). At trial, the silence never counts against you. These rights are not technicalities — they are the case.
What to say — and the full stop after it
Give your name and address (required), then one sentence: ‘I will not answer questions or make a statement until my attorney is present.’ Repeat as needed, politely. Do not explain, do not ‘clear things up’ (that’s how confessions happen), do not chat in the van or the cells — everything is quotable and cellmates testify.
What not to sign or consent to
Sign nothing except property receipts you have read — a ‘warning statement’ can contain admissions drafted in police language. You may refuse consent to searches beyond the arrest’s scope; make refusal verbal and witnessed. DNA and fingerprints are lawfully compellable; statements never are.
The 48-hour rule and first appearance
You must be brought before a court within 48 hours (extended over weekends to the next court day). The first appearance handles legal representation and bail — it is not the trial. Anything a family member arranges before that appearance (attorney, proof of address, employer letter) directly improves the bail outcome.
Bail: the three doors
Police bail (s59) at the station for minor offences within hours; prosecutor bail (s59A) for a wider band; court bail for the rest — with Schedule 5/6 offences requiring formal applications. Someone should call an attorney the hour of the arrest: after-hours police bail is a phone call that saves a weekend in the cells.
Unlawful arrest: the counter-attack
Arrest without reasonable suspicion, assault in custody, and detention beyond 48 hours ground civil claims against the Minister of Police — with damages awards routine in our courts. Note names, times, cell conditions and injuries (photograph on release; see a doctor for a J88). The 6-month statutory notice under the Legal Proceedings Act starts on release — don’t sit on it.
Frequently asked questions
Do I have to answer police questions?
No — beyond identifying yourself, you have an absolute right to silence. Use it until your attorney is present; polite, repeated refusal is lawful.
Can police search my phone?
Not lawfully without a warrant or your consent in most circumstances — refuse consent verbally and witnessed, and do not share your PIN. Challenge unlawful phone evidence at trial.
How fast can bail be arranged?
Minor offences: police bail within hours, day or night. Others: at the first court appearance within 48 hours — faster and better-prepared with an attorney engaged immediately.
What if I was assaulted or held longer than 48 hours?
Civil claims against the Minister of Police succeed regularly — document everything, get the J88 medical, and serve the statutory notice within 6 months.
Speak to an Attorney Today
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