The cases concerning the improper use of criminal arrest when a summons would suffice (DPP v Carr, DPP v AM) do not apply to the exercise of the power to take a person into civil protective custody under s 128 of the Police Administration Act 1979 (NT). The purposes of the two powers are fundamentally different, and the factors relevant to assessing propriety differ accordingly. Police General Order A7 imposes an overarching obligation that protective custody should be a last resort, but it is not a pre-condition that in every case the officer must actively consider and reject alternatives before exercising the power. Facts relevant to whether police acted improperly for the purposes of s 138 UEA need only be proved on the balance of probabilities under s 142 UEA, not beyond reasonable doubt.
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