13 May Police Rights of Entry – Criminal Law
Recently the Advertiser published that South Australian Police were considering the depth of their legal training of officers as to their rights to enter private property following our successful appeal in the matter of R v Rockford.
In that case, the Judge found that police were not aware of when they had an implied licence to enter a person’s property.
So when can police enter your property?
Police have been given certain powers to enter the premises of a person without that person’s consent. The most common of these is a search warrant or entry to affect an arrest of a person they reasonably believe to be on the premises.
Police also have powers to enter premises to prevent a breach of the peace and, as with other members of the public, to prevent death or serious injury to a person.
Absent a specific power provided by statute or the common law, police do not have any right of entry on to your property without your consent.
However, the law says that if you leave your gate unlocked and do not post signs forbidding entry, or in some other way indicate to a person that their presence on your property is not with your consent, then any member of the public may enter your property for the purpose of getting to the nearest or most frequent point of entry of your house to conduct any legitimate business with you, such as delivering something to you or asking you a question.
This is referred to in the law as the implied licence of the resident. However, it can be revoked at any time by the resident.
If a person enters under an implied licence you can tell them to leave at any time, and after allowing them a reasonable time to leave, if they remain on your property they do so as a trespasser.
Although the law implies the licence, it implies that you give it and you can revoke it at any time.
If you do not want anyone to enter your premises you can lock the gate of erect a sign reading “no entry”. Any person who enters without your specific consent or a legal power would be considered a trespasser.
A sign which reads “no trespassing” will have little effect, as a person entering under an implied licence is not a trespasser.
You can, if you wish, exclude certain classes of people from relying on an implied licence through signs reading “no salespeople may enter” or “no police beyond this point”.
You, as the lawful resident of the premises, have a right to exclude whomever you wish from entry onto your premises, including the Queen of England. This is the origin of the expression that a man’s home is his castle.
The above list of police statutory and common law powers of entry is not exhaustive. For more detailed advice on your legal rights please contact us.